JOANNA B. ORLOWSKI, Plaintiff-Respondent/ Cross-Appellant,
ROBERT ORLOWSKI, Defendant-Appellant/ Cross-Respondent.
April 2, 2019
appeal from Superior Court of New Jersey, Chancery Division,
Family Part, Bergen County, Docket No. FM-02-1778-14.
Orlowski, appellant/cross-respondent, argued the cause pro se
(Cores & Associates, LLC, attorney; Amy S.Cores, on the
Stephen H. Roth argued the cause for
Judges Fisher, Hoffman and Geiger.
post-judgment matrimonial appeal, we consider whether a court
may compel reimbursement of college tuition, forensic
accountant's fees, and counsel fees, through an enhanced
wage garnishment and a Qualified Domestic Relations Order
(QDRO) against the obligor's individual annuity account
funds on deposit in an annuity governed by the Employee
Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.
§§ 1001 to 1461. We hold that unpaid awards for
counsel fees and expert witness fees relating to child
support, property distribution, and college tuition
reimbursement are enforceable by QDRO from ERISA protected
pension funds when an ex-spouse is the alternative payee of
the QDRO. We further hold the counsel fee judgments relating
to child and spousal support are enforceable through an
enhanced wage garnishment.
complex procedural history underlying this appeal
necessitates a brief review of the proceedings that led to
the arrearages owed to plaintiff Joanna B. Orlowski, her
enforcement efforts, and defendant Robert Orlowski's bad
faith, unclean hands, frivolous litigation in both state and
federal court, and willful, sustained failure to comply with
we discuss the pertinent facts and procedural history, we
note defendant appealed numerous orders and directed our
attention to several alleged trial court errors.
Defendant's appeal, however, was dismissed for failure to
timely file a brief, so we do not consider those issues.
Accordingly, our review of the facts and procedural history
is limited to those relevant to plaintiff's cross-appeal.
is a member of the International Union of Operating Engineers
Local 14-14B (the Union). The Union administers a pension
fund known as the Annuity Fund of the International Union of
Operating Engineers Local 14-14B (the Annuity). Defendant has
substantial ERISA protected funds in his individual annuity
account (the annuity funds) with the Annuity.
parties were married in May 1993 and had two sons.
Plaintiff's 2014 divorce action was finalized in 2016.
The amended final judgment of divorce (amended judgment)
required defendant to pay his child support obligations by
amended judgment incorporated the parties'
"partial" property settlement agreement (PSA),
which addressed the equitable distribution of various marital
assets, including the former marital residence and a 401(k)
investment account. The PSA also provided that plaintiff
waived her claim for alimony in exchange for a non-taxable
lump sum payment of $120, 000. Notably, the PSA did not
resolve equitable distribution of the annuity funds and
plaintiff's IRA. The parties' mediator authored a
supplemental letter to the PSA that addressed certain child
support and tax issues, and stated two issues remained
unresolved: (1) counsel fees; and (2) any claims or credits
relating to the fees incurred for the forensic accountant
used to investigate the parties' reciprocal claims of
dissipation of marital assets.
written opinion, the trial court explained the forensic
accountant's report demonstrated defendant could not
account for $118, 175 in marital funds. On the other hand,
the trial court found defendant did not demonstrate plaintiff
dissipated marital funds. As a result, plaintiff was
successful in her dissipation claim. The court reallocated
responsibility for $5000 of the fees charged by the forensic
accountant from plaintiff to defendant for services related
to defendant's meritless dissipation claim.
counsel fees, the trial court recognized defendant's
greater annual income, assets, and lesser debt relative to
plaintiff. It noted plaintiff moved three times for
enforcement of prior court orders and served sixteen
subpoenas to obtain discovery, which defendant obstructed.
The court also stated the case featured an "extensive
litigious history" and plaintiff's dissipation claim
was successful, whereas defendant's was unsubstantiated.
on these findings, the trial court awarded plaintiff:
one-half of the marital assets dissipated by defendant to be
paid from defendant's annuity account via a QDRO; $5000
as reimbursement for fees paid to the forensic accountant due
to defendant's meritless dissipation claim; and $48,
194.98 for counsel fees. Defendant was further ordered to pay
$1150 to the mediator.
defendant refused to comply with the PSA and subsequent court
orders. His obstinance prompted plaintiff to move for
enforcement in April, May, September, and December of
2016. All of plaintiff's enforcement motions
were granted, at least in part. Of note, on December 15,
2016, the trial court partially granted plaintiff's
enforcement motion by: (1) entering judgment against
defendant in the amount of $5000 for failure to pay the
forensic accounting fee reimbursement; (2) imposing a wage
execution to collect the previously ordered and unpaid $48,
194.98 in counsel fees; and (3) awarding plaintiff
attorney's fees incurred after March 31, 2016, relating
to her enforcement motions and her successful defense of an
order to show cause filed by defendant, in an amount to be
remained noncompliant. Plaintiff sought enforcement of the
prior orders, including payment of the previously awarded
counsel fees, from defendant's annuity funds through a
QDRO. The trial court declined to ...