Opinion
DOCKET NO. A-5415-12T1
09-19-2014
GRACIA ROBERT MONTILUS, Plaintiff-Appellant, v. NICOLE VALERIE MONTILUS, Defendant-Respondent.
Gracia Robert Montilus, appellant pro se. Almasy & Almasy, attorneys for respondent (James M. Almasy, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Manahan. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1180-13. Gracia Robert Montilus, appellant pro se. Almasy & Almasy, attorneys for respondent (James M. Almasy, on the brief). PER CURIAM
This is an appeal from an order compelling payment of $5,000 by plaintiff to defendant arising out of their Marital Settlement Agreement (MSA). The MSA was entered into at the time of the parties' divorce on November 17, 2004. We affirm.
Defendant filed a post-judgment motion seeking enforcement of both the MSA and two related court orders. Per the MSA and orders, plaintiff was obligated to pay $5,000 to his former spouse as equitable distribution of his 401(K). On appeal, plaintiff argues, as he did before the trial court, that he failed to make payment due to defendant's failure to provide a Qualified Domestic Relations Order (QDRO) for over nine years. Plaintiff also argues that defendant's claim is barred by the doctrine of laches.
On December 7, 2012, plaintiff filed a motion seeking additional parenting time. In response to the motion, defendant filed a cross-motion seeking, among other things, to compel the distribution of $5,000 from plaintiff's retirement plan. On January 11, 2013, the court granted plaintiff's motion for additional parenting time and denied defendant's cross-motion to compel the distribution of $5,000 from plaintiff's retirement plan in part. The trial court directed both parties to draft and execute a QDRO adequate for withdrawal of the distribution. Defendant filed a motion for reconsideration of the court's order. On March 8, 2013, the court denied defendant's motion in part.
Thereafter, defendant hired a pension evaluator to prepare a QDRO. It was then discovered that sometime in 2006-2007, plaintiff, without the consent or knowledge of defendant, withdrew the funds from the 401(K). Despite plaintiff's knowledge that there were no funds remaining in the account, he did not disclose this to the court. Rather, in a certification opposing defendant's motion for payment, plaintiff continued to press his argument that it was defendant's obligation to obtain a QDRO prior to distribution.
On May 21, 2013, defendant sought an order finding that plaintiff violated defendant's rights. On June 6, 2013, plaintiff filed a cross-motion seeking a declaratory judgment that defendant's claim to the subject distribution was barred by the doctrine of laches. Judge Barbara C. Stolte, J.S.C., granted defendant's motion and issued a written opinion.
We affirm substantially for the reasons set forth by Judge Barbara C. Stolte in her written opinion. Plaintiff's argument relating to the necessary procurement of the QDRO for release of non-existent funds from the 401(K) was wholly without merit. It was plaintiff's surreptitious conduct that caused the removal of the funds; conduct tantamount to defalcation. Judge Stolte properly determined that although the contemplated source of the funds to satisfy plaintiff's MSA obligation no longer existed, the obligation for the payment remained.
We also concur that the doctrine of laches was inapplicable as a matter of law since the plaintiff could demonstrate neither undue delay (two post-judgment orders dealing with the subject matter) nor harm. Lavin v. Hackensack Bd. of Ed., 90 N.J. 145, 151-52 (1982).
After carefully considering the record and the briefs, we conclude that plaintiff's other arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION