Opinion
DOCKET NO. A-5977-12T3
04-12-2016
FATEMEH AABDOLLAH, Plaintiff-Respondent, v. MORTEZA AABDOLLAH, Defendant-Appellant.
Bonnie C. Frost argued the cause for appellant (Einhorn, Harris, Ascher, Barbarito & Frost, attorneys; Ms. Frost and Matthew S. Coleman, on the briefs). Stacey Cozewith argued the cause for respondent (Snyder & Sarno, LLC, attorneys; Ms. Cozewith and Jill D. Turkish, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa, Rothstadt, and Currier. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-181-06. Bonnie C. Frost argued the cause for appellant (Einhorn, Harris, Ascher, Barbarito & Frost, attorneys; Ms. Frost and Matthew S. Coleman, on the briefs). Stacey Cozewith argued the cause for respondent (Snyder & Sarno, LLC, attorneys; Ms. Cozewith and Jill D. Turkish, of counsel and on the brief). PER CURIAM
In this protracted matrimonial litigation, before us for a second time, defendant Morteza Aabdollah appeals from certain provisions of the April 15 and August 2, 2013 orders in which the judge deemed defendant to have waived his right to a credit for an overpayment of alimony and to contest the distribution of his pension plans. After reviewing the contentions advanced on appeal in light of the facts in the record, and the applicable law, we reverse.
Following a trial, a Final Judgment of Divorce (JOD) was entered on January 8, 2009. Both parties appealed, challenging the judge's decision on several economic issues, including alimony and the equitable distribution of defendant's pension plans. We reversed on one issue, finding that the trial judge erred when he treated defendant's GPU pension as income in the calculation of his alimony obligation, rather than as an asset subject to equitable distribution. We remanded for the limited consideration of this pension and its relationship to alimony and equitable distribution. Aabdollah v. Aabdollah, No. A-2950-08 (App. Div.), certif. denied, 208 N.J. 597 (2011), cert. denied, ___ U.S. ___, 133 S. Ct. 34, 183 L. Ed. 2d 678 (2012).
The decision of the trial judge is detailed in our previous decision.
On remand, plaintiff Fatemeh Aabdollah moved for enforcement of the JOD and determination of the proper distribution of defendant's GPU pension benefits. Defendant cross-moved for an order terminating alimony and other relief.
In an order of April 15, 2013, the judge found defendant in violation of litigant's rights and awarded plaintiff a judgment of $523,543.13, comprised of the previously awarded equitable distribution and other monies owed to her.
A different judge handled the motions than had presided at the trial.
Pursuant to our remand, in addressing the GPU pension and its relationship to alimony and equitable distribution, the judge awarded plaintiff 100% of that pension and temporarily reduced defendant's support obligation to $9 02 per month, retroactive to the date of the JOD. Recognizing that this retroactive reduction in defendant's support obligation resulted in an overpayment of $157,998, the judge applied it as a credit against the equitable distribution defendant owed to plaintiff.
The alimony obligation in the JOD was $4 000 a month.
Finally, the judge ordered a plenary hearing to determine "the issue of fairness of the present $902 per month alimony award and Defendant's receipt of the pension from the date of the parties' [JOD] through April 12, 2013 only." Defendant subsequently moved for reconsideration of the order and plaintiff cross-moved for its enforcement.
Prior to the plenary hearing, the parties entered into a consent order on June 17, 2013, in which they "agree[d] that the Defendant's alimony obligation shall be modified to $1,200 per month, effective April 15, 2013, in consideration of the issue of the GPU pension previously treated as income as addressed in the April 15, 2013 order."
One week later, defendant moved for relief from the consent order, alleging he had been tricked into signing it. He sought a termination of his support obligation and the application of the credit owed to him under the April 15 order. On August 2, 2013, the judge entered an order denying the relief sought in defendant's motions. In specifically addressing defendant's requests for the return of his GPU pension and termination of his $1200 monthly support obligation, the judge found defendant had failed to demonstrate that a modification of the $1200 monthly support award was warranted, as he had provided no evidence of a permanent and substantial change in his circumstances since the entry of the consent order and there was no "objective evidence of fraud, mistake or other duress or coercion to support Defendant's claim that he was duped into" executing the consent order. He also determined that, by entering into the consent order, defendant had waived the credit the judge had determined he was owed from the overpayment of support.
As to the pension, the judge similarly found that the consent order was a waiver of the plenary hearing that was to have determined an appropriate support award and, therefore, defendant was "not entitled to a reimbursement for sums that were the subject of the plenary hearing and later resolved by way of a Consent Order." Defendant appeals from the April and August 2013 orders.
On appeal, defendant argues that the judge erred in (1) ruling that defendant's credit for overpaid alimony was waived by execution of the consent order; (2) awarding in full defendant's pensions to plaintiff; and (3) not crediting defendant for funds transferred to plaintiff via domestic relations orders.
We first address defendant's argument that he did not waive his right to a credit for overpaid alimony. We review this legal issue anew as a judge's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). A trial judge "is in no better position than we are when interpreting a statute or divining the meaning of the law." D.W. v. R.W., 212 N.J. 232, 245 (2012).
In the April order, the judge ruled that "Defendant's alimony obligation is temporarily modified to $902 per month effective the date of the Judgment, January 8, 2009. The Family Division shall schedule a plenary hearing to determine only the fairness of the modified alimony award of $902 per month." In his statement of reasons, the judge explained that using the "temporary" figure of $902 a month caused an overpayment by defendant of $3098 per month for four years and three months totaling $157,998. Therefore, he was giving defendant credit for the adjusted alimony figure retroactively to the JOD.
Prior to the date of the plenary hearing, the parties reached an agreement as to an alimony figure, to be retroactive to the April 15 order date, memorialized in the June consent order. The order is silent as to the $157,998 credit defendant had been accorded by the judge in April. In ruling on defendant's motion for reconsideration in August, the judge stated:
Although plaintiff's counsel references in her brief that this order was placed on the record with the parties subject to voir dire, we have not been provided with that transcript.
[W]ith regard to the $157,000 credit that Defendant seeks, the Court finds that he is not entitled to it . . . . [T]he Court's April [15], 2013 Order reduced Defendant's alimony obligation to $902 per month; stated that based upon its calculation Defendant overpaid alimony of $157,000; and scheduled
a plenary hearing on the matter. But, the parties then waived the plenary hearing by entry of the June 17, 2013 Consent Order setting Defendant's alimony obligation at $1,200 per month. Therefore, Defendant is not entitled to the credit that was the subject of the plenary hearing.
We find that the judge erred in ruling that the consent order was a waiver of defendant's entitlement to a credit for the overpayment of his support obligation. After our remand, the judge analyzed the alimony figure based on the trial judge's calculations, removed the pay-status pension as income and set a temporary alimony figure of $902. He recognized that a plenary hearing was necessary to address "the fairness of the alimony amount."
When the parties came to an agreement on the alimony number, that eliminated the need for the judge to determine the figure, but it did not erase the previous ruling he had made that defendant was owed a credit. The plenary hearing was to set an alimony figure going forward. Defendant's credit for an overpayment, if any, would be calculated based upon the new alimony figure. Once the parties agreed upon an alimony sum in the consent order, the credit had to be re-calculated based upon that figure. The judge's April ruling that defendant was entitled to a credit for the overpayment of alimony was not disturbed by the consent order; the credit simply had to be recalculated.
There is no indication that defendant was asked about, advised or intended to waive this credit. To the contrary, based upon the nature of the litigation between these parties, it is unlikely that he would have waived his entitlement to any credit or monies due him. We find nothing in the record before us to support the judge's ruling that defendant waived a credit due him for an overpayment of alimony. We, therefore, reverse on this issue and remand for the judge to determine the proper credit due defendant using the agreed-upon alimony figure of $1200 per month.
In keeping with our stated conclusion, we also find the judge erred in ruling that defendant waived a judicial resolution of his GPU pension upon execution of the consent order. As a result of the prior appeal, we remanded this matter for a determination of an appropriate award of alimony upon the exclusion of the pension from defendant's income. The parties came to an agreement on the alimony figure. That, however, did not eliminate the necessity of addressing this pension and its relationship to the equitable distribution equation. If it is to be treated as a set-off against monies owed to plaintiff, the judge must quantify that calculation, determining the value of defendant's fifty-percent share of the pension and the appropriate length of time of its pay-out to plaintiff.
We reject defendant's argument that the anti-alienation clause of the ERISA statute, 29 U.S.C.A. § 1056(d)(1), prevents the assignment or alienation of benefits under an ERISA plan as the provision is inapplicable when payment is ordered by a qualified domestic relations order. 29 U.S.C.A. § 1056(d)(3)(A). Therefore, the judge is free to allocate the GPU pension as he deems appropriate, once he has quantified its value and determined the length of time for the asset to be paid to plaintiff, using it as an offset to any owed equitable distribution.
As we have found error in the judge's determination that defendant waived both an accounting of his credit due for alimony overpayment as well as the resolution of his GPU pension, we reverse and remand for the family court judge to conduct proceedings in accordance with this decision. We caution the parties that these are the only issues the judge will address on this very limited remand.
Reversed and remanded for further proceedings in accordance with this decision. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION