Opinion
DOCKET NO. A-0387-13T4
04-21-2015
VIVIANE B. ACKAD, Plaintiff-Respondent, v. WAJI GOBRIAL, Defendant-Appellant.
Lawrence B. Diener, attorney for appellant. Ceconi & Chetfetz, attorneys for respondent (Kimberly A. Rennie, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Kennedy and O'Connor. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FM-07-1576-10. Lawrence B. Diener, attorney for appellant. Ceconi & Chetfetz, attorneys for respondent (Kimberly A. Rennie, on the brief). PER CURIAM
Defendant appeals from a Family Part order requiring him to execute a Qualified Domestic Relations Order (QDRO) which designated plaintiff, his former wife, as the irrevocable beneficiary of a twenty-five percent "survivor benefit" under his pension from the New York City Employee Retirement System (NYCERS). Defendant, an employee of the New York Metropolitan Transit Authority, argued in the Family Part that giving his former spouse a survivor benefit would reduce his lifetime monthly retirement payment by several hundred dollars, and that the parties' Property Settlement Agreement (PSA) did not provide for that benefit. The judge disagreed, and entered the QDRO, but provided that the parties "share equally the reduction in defendant's monthly retirement amount."
On appeal, defendant argues that the PSA did not grant to plaintiff any "survivorship rights" in his pension, and that by granting plaintiff such rights, the Family Part "unfairly reduces" his pension payments; that the order "contradicts the manifest intent of the parties when they entered into" the [PSA]; and that the "facts and the law support defendant's position." We have considered these arguments in light of the record and the law and, although we are troubled by the trial judge's failure to explicitly set forth her findings of fact and conclusions of law as required by Rule 1:7-4, we affirm.
Very briefly, plaintiff, a medical doctor, and defendant, a well-paid employee of the New York City Transit System, were married in 1998, and two children were born of their marriage. Plaintiff filed a complaint for divorce in February 2010, and we infer there followed a disputatious period of discovery and negotiation between the parties.
Apparently, defendant failed to disclose the existence of his NYCERS pension until the parties had embarked upon a pre-trial mediation. Indeed, the record supports the conclusion that the details of the pension and, in particular, the survivor annuity options, were not disclosed even as of the date of trial on March 12, 2013. Consequently, while on that date the parties were able to cobble together a PSA covering almost all the issues between them, the agreement explicitly noted that the "parties are unable to resolve the issue of joint and survivor benefits" with respect to the NYCERS pension, and that they would thereafter attempt to resolve the issue, failing which the Family Part would issue a ruling. Defendant also agreed to provide information pertaining to the survivor benefits.
The parties appeared for trial on March 12, 2013, and testified that they had voluntarily resolved all their issues, as set forth in the PSA, except for the survivor benefits under the NYCERS pension, and that such issue would thereafter be "resolved by the court" if the parties could not resolve it themselves. The Family Part then entered a judgment of divorce, incorporating the partial PSA.
The PSA did not require either party to pay alimony, although because plaintiff was designated as the "primary resident custodian" of the minor children, defendant was required to pay child support. Moreover, the parties agreed to, in effect, equally split their respective IRA and 401(k) plans, and to "equally divide[]" the NYCER pension, as valued from the "date of the marriage through the date of the complaint for divorce." As we have noted, however, the parties explicitly reserved the question of a "survivor's benefit" in the pension for another day.
Thereafter, having received information about the pension's "survivor" options, plaintiff filed a motion to require defendant to execute a QDRO directing that plaintiff shall be the beneficiary of a "25% survivor annuity" which would protect her interest in the pension benefit in the event defendant died prior to her receipt of fifty percent of the value of the pension benefit the parties had agreed upon. In her motion, plaintiff agreed to be responsible for half the cost of selecting the survivor annuity.
Plaintiff's share of the pension benefit would be paid-out in monthly installments upon defendant's retirement. Plaintiff had estimated the value of the marital portion of the pension to be $345,000, and had tendered several proposals to defendant whereby he could have "bought out" her interest. Defendant rejected the proposals.
Defendant opposed plaintiff's motion and argued that the "survivor's benefit" is a benefit that is "separate" from the pension and that the PSA "doesn't provide for it." Further, defendant argued that plaintiff should pay "the whole amount of the reduction" in his monthly pension caused by selecting the survivor's option.
The Family Part judge determined that the parties had contemplated in their PSA that they would attempt to resolve the issue between them and if they were unable to reach an agreement, the question would be decided by the court. The judge found that plaintiff "has a right to have protection" of her interest in the NYCERS pension and that providing for a survivor option is the "fairest way to ensure that she's protected." The judge added that defendant had not presented any "better option" to protect plaintiff's interest, despite being given ample time to do so. The judge did, however, determine that plaintiff would be responsible for half the cost of selecting the option. This appeal followed.
We begin our analysis with the principles that control our review of the trial court's decisions. Family Part judges have special expertise in deciding issues that arise in the field of domestic relations. Cesare v. Cesare, 154 N.J. 394, 412 (1998). For that reason, we defer to their findings when they are supported "by adequate, substantial and credible evidence." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (quoting Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974).
Further, we employ an abuse of discretion standard in evaluating equitable distribution orders. See Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443-44 (App. Div. 1978). When applying that standard, "[w]e must determine 'whether the trial court mistakenly exercised its broad authority to divide the parties' property or whether the result reached was bottomed on a misconception of law or findings of fact that are contrary to the evidence.'" Sauro v. Sauro, 425 N.J. Super. 555, 573 (App. Div. 2012) (quoting Genovese v. Genovese, 392 N.J. Super. 215, 223 (App. Div. 2007)), certif. denied, 213 N.J. 389 (2013).
We also generally defer to the trial court's judgment as to whether a plenary hearing is necessary. Jacoby v. Jacoby, 427 N.J. Super. 109, 123 (App. Div. 2012). A plenary hearing is required only in those cases where the affidavits show that there is a genuine issue as to a material fact and the trial judge determines that a plenary hearing would be helpful in deciding such factual issues. Ibid.
"[T]he goal of equitable distribution . . . is to effect a fair and just division of marital [property]." Steneken v. Steneken, 183 N.J. 290, 299 (2005) (citation and internal quotation marks omitted). See generally N.J.S.A. 2A:34-23.1. Fashioning an equitable distribution of marital assets and debts requires more than simply a "mechanical division"; it requires a "weighing of the many considerations and circumstances . . . presented in each case." Stout v. Stout, 155 N.J. Super. 196, 205 (App. Div. 1977).
Because the parties' only dispute on appeal arises from plaintiff's putative right to a "survivor option" to protect her undisputed interest in benefits flowing from defendant's NYCERS pension, we briefly review the governing principles relating to retirement benefits. We recognize that the equitable distribution of pension rights is fraught with complications and subtleties; nonetheless, it is possible to set forth some general principles of law that guide a court when considering this issue.
It is well established in New Jersey that the "portion of a pension legally or beneficially acquired by either party during marital coverture is subject to equitable distribution." Claffey v. Claffey, 360 N.J. Super. 240, 255 (App. Div. 2003) (citing Kikkert v. Kikkert, 88 N.J. 4, 5 (1981)). "The Employment Retirement Income Security Act (ERISA), 29 U.S.C.A. § 1001 to 1461, adopted in 1974, was passed to establish uniform national standards for employee pension plans." Risoldi v. Risoldi, 320 N.J. Super. 524, 533 (App. Div. 1999), certif. denied, 161 N.J. 335 (1999) (citing 29 U.S.C.A. § 1001(a)). Under ERISA, as originally enacted, "pension plan administrators and trustees of ERISA pension plans were not permitted to comply with state-court orders equitably dividing pension plans among divorcing spouses." Id. at 532. However, in 1984, the Retirement Equity Act, Pub. L. 98-397, was enacted to create a statutory exemption to the anti-alienation provisions of the Internal Revenue Service (IRS) and ERISA and to require pension plan administrators to honor a "QDRO issued by a court pursuant to state law[.]" Ibid. (citing 29 U.S.C.A. § 1056(d)(3)(A) and (B)).
Essentially, "these changes permitted a direct distribution to the non-pensioner spouse of a QDRO-designated share of the pensioner's ERISA retirement benefit." Ibid. In other words, a QDRO "directs the pension plan administrator to distribute, in accordance with the coverture fraction, a portion of the periodic pension benefit to the non-pensioner spouse." Claffey, supra, 360 N.J. Super. at 258.
"There are three separate methods of effecting an equitable distribution of that portion of a pensioner spouse's interest in a defined-benefit pension plan: (1) a present-value offset distribution; (2) a deferred-distribution; and (3) a partial deferred-distribution award." Id. at 255. Here, the parties selected a deferred distribution in their PSA, which, in effect, is "actually distribution of an equitable share of a future contingent benefit, the contingency being survival of the pensioner spouse to retirement age." Id. at 257. "Assuming survival of the pensioner spouse to the date of retirement, the percentage to be so distributed and the amount of the periodic benefit is not known until retirement." Id. at 258. Moreover, if the pension plan does not provide a survivor option, the non-pensioner spouse can lose the benefit of her bargain if the pensioner spouse were to die prematurely. As we explained in Claffey, "when he gets, she gets; when he dies, so does her benefit." Id. at 261.
The NYCERS pension plan at issue here, however, does provide for a "survivor's option" and it is clear that the parties expressly reserved the issue for further negotiation at the time of the judgment of divorce and execution of the PSA. Given this fact, we reject defendant's argument that because the PSA does not expressly provide that plaintiff is entitled to a survivor's benefit, the order granting that benefit to plaintiff offends both the terms of the PSA and the parties' intent. Indeed, if we were to accept defendant's tortured argument, we would, in effect, be disregarding the obvious intent of the parties that reserved the issue for judicial resolution if they could not amicably resolve the issue themselves. A court should not re-write a contract or grant a better deal than that for which the parties expressly bargained. Solondz v. Kornmehl, 317 N.J. Super. 16, 21 (App. Div. 1998).
Frankly, defendant raises no argument that the Family Part court order at issue is unfair or inequitable in any way, other than to assert that he sees no reason why he should have to participate in paying for the benefit at all. We reject this argument. Defendant obtained a benefit here by not being required to pay to plaintiff at the time of the divorce her share of the present value of the marital portion of the pension benefit. Under the circumstances of this case, an order compelling him to pay half the cost of the "survivor option" — in order to secure her receipt of the benefit — is fair and reasonable. Accordingly, guided by the standards that govern our review, we affirm the order under appeal.
As we noted at the outset, we are troubled by the failure of the Family Part to clearly state on the record its findings of fact and conclusions of law. Judges must make findings of fact and conclusions of law on motions decided by written order appealable as of right. R. 1:7-4. This requires judges to articulate, either in a written or oral opinion, "specific findings of fact and conclusions of law[.]" Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2015); see also Raspantini v. Arocho, 364 N.J. Super. 528, 532 (App. Div. 2003). Where a judge has failed to issue adequate findings and conclusions, we have remanded the case for findings to assist appellate review. Foley, Inc. v. Fevco, Inc., 379 N.J. Super. 574, 588-89 (App. Div. 2005).
We see no point, however, in remanding this matter to the Family Part. Neither party seeks that relief, and the record, while sparse, is nonetheless minimally adequate for appellate review.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION