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This case can also be found at *CITE_PENDING*.
(NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6568-04T26568-04T2
KATHLEEN B. RUBIN,
Plaintiff-Appellant,
v.
RICHARD L. RUBIN,
Defendant-Respondent.
Argued July 12, 2006 - Decided August 9, 2006
Before Judges Fuentes and Graves.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
FM-02-2259-96.
Bruce J. Ackerman argued the cause for appellant
(Shapiro & Croland, attorneys; Mr. Ackerman, on
the brief).
Marvin H. Sunshine and Kristen Capogrosso argued
the cause for respondent (Sunshine, Atkins,
Minassian & Tafuri, attorneys; Mr. Sunshine and
Ms. Capogrosso, on the brief).
PER CURIAM
In this post-judgment matrimonial appeal, we review an order dated May 27, 2005, denying plaintiff's request "to
have defendant cooperate and immediately approve and execute a Qualified Domestic Relations Order (QDRO)
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regarding the Sara Lee Corporation Benefit Plan (Sara Lee Plan), and a subsequent order awarding counsel fees to
defendant in the amount of $1,400. After reviewing the record and applicable law, we reverse.
The dual final judgment of divorce signed on June 26, 2000, incorporated a Property Settlement Agreement (PSA),
and the parties were directed to abide by its terms and conditions. The trial court found it significant that paragraph
6 of the PSA did not specifically require the preparation of a QDRO in connection with the Sara Lee Plan, but
paragraph 8 of the PSA required the husband to execute a QDRO sufficient to convey any and all of his right title
and interest in his 401(k) plan to plaintiff. Paragraphs 6 and 8 of the PSA read as follows:
6. The Husband is a participant in a defined benefit plan at Sara Lee Corp., a former
employer. The parties agree that Wife is entitled to fifty (50%) percent of the value of
this plan projected to be approximately $20,000 per year at the time of Husband's
retirement. Upon Husband's reaching age 65 he shall pay over to the Wife one-half the
sum received by him in connection with this payment. The Husband shall also
cooperate with the Wife's attempts to first have her one half payment paid directly by
the plan administrator.
The parties further agree that in the event Wife predeceases husband then in that event
husband shall pay one half the benefits he receives directly to the Wife's daughter.
Husband shall also cooperate with daughter's attempts to have the one half payment
paid directly by the plan administrator in the event of Wife's death.
8. The Husband is a participant in a deferred savings 401[(k)] plan at his place of
employment; the value of Husband's interest in the 401[(k)] plan is approximately
$39,000. In addition, the Husband maintains an Individual Retirement Account ("IRA")
which account has a current value of approximately $31,000. The Wife also maintains an
IRA which has a current value of approximately $7,000. The parties have agreed that
Wife shall receive by way of equitable distribution any and all of Husband's interest in
his 401[(k)] plan that was in existence as of December 31, 1998. Any contributions made
to the plan by the Husband after December 31, 1998 shall be deemed to be the
Husband's property free and clear from any right, title or claim by the Wife. Thus,
Husband agrees to execute a QDRO sufficient to convey any and all of his right, title
and interest in his 401[(k)] plan to Wife. The cost of the preparer of the QDRO shall be
borne equally by the parties. In addition, Husband agrees to sign whatever documents
are necessary to "roll over" or convey to Wife Husband's IRA. In lieu of his interest in the
401[(k)] and IRA plans, the parties have further agreed that Husband shall receive the
sum equal to the amount transferred to Wife from Husband's 401(k) and IRA. This shall
be paid from Wife's share of the proceeds of the marital premises.
At the outset, we emphasize that our purpose is to implement the agreement of the parties as reflected in the PSA.
In this case, however, the parties dispute whether paragraph 6 of the PSA entitles plaintiff to obtain a QDRO in
connection with defendant's Sara Lee Plan. We note that although paragraph 6 of the PSA does not specifically state
that a QDRO was to be entered, it does provide that defendant agreed to cooperate so that plaintiff could receive
her payments directly from the Sara Lee Plan administrator.
Plaintiff argues, as she did before the trial court, that "only by the entry of an appropriate QDRO," can the
payments be paid directly to her "by the plan administrator as contemplated in the Settlement Agreement." In her
certification in support of her motion for reconsideration, plaintiff contends:
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[T]he imposition of a QDRO in Paragraph 8 and omission in Paragraph 6 was the result
of joint counsel error or mistake. Since no such QDRO was required or ever signed in
connection with the assets divided in Paragraph 8, our intention was to have a QDRO to
effectuate my receipt of a one-half interest in the Sara Lee Corp. pension under
Paragraph 6. We never entered into a QDRO when we divided the retirement assets
described in Paragraph 8.
8. The imposition of a QDRO in order to divide the asset in Paragraph 6 was . . . the
ONLY way in which defendant could "cooperate" as he committed to do. There is no
other legal way for me to receive my one-half interest directly, except through the use
of a QDRO. Thus, although the word QDRO is not there, the "cooperation" required of
defendant requires the same effect--a QDRO. It is required as a matter of law to meet
the obvious intention of the parties in the Agreement.
11. The language referring to preparing a QDRO was intended to be included in . . .
Paragraph 6 regarding defendant's pension. The gap in the middle of Paragraph 6 is
further evidence that language was inadvertently omitted. At the time of the divorce
settlement, it was represented to me that the agreement was not complete and would
be completed when the final judgment was submitted.
12. At a minimum, we require a hearing to determine if the parties intended the
Agreement to include the qualified domestic relations order language in the paragraph
pertaining to the defendant's pension as opposed to the paragraph pertaining to the
401(k) accounts, and to have explained the printing gap in Paragraph 6.
On the other hand, in his certification in opposition to plaintiff's application, defendant states that "plaintiff
continually attempts to disregard the terms and conditions of our Property Settlement Agreement causing me to
incur counsel fees once again."
Paragraph 6, Page 5 of our agreement deals with the Sara Lee Corporation Defined
Benefit Plan and states that the plaintiff "is entitled to fifty (50%) percent of the value of
this plan projected to be approximately $20,000 per year at the time of Husband's
retirement. Upon Husband's reaching age 65 he shall pay over to the Wife one-half the
sum received by him in connection with this payment.
9. Our agreement is clear. There is no mention in Paragraph 6, Page 5 of a QDRO being
necessary or having to be prepared. It simply requires that if I live to the age of 65 and
begin receiving my retirement benefits from Sara Lee, I am to pay one-half of the
payments to the plaintiff. Obviously, I have every intention of doing so as I have
adhered to every other aspect of our agreement. This circumstance was specifically
negotiated between us. In further support of this, I respectfully refer the Court to
Paragraph 8, Page 6 of the Property Settlement Agreement which refers to a QDRO
having to be prepared for other retirement accounts which the plaintiff has received. If
a QDRO was specifically contemplated, then we would have specifically put it in the
paragraph with regard to the Sara Lee Defined Benefit Plan as we had with other
paragraphs.
Our review of the record leads us to conclude that paragraph 6 of the PSA is ambiguous, and the conflicting
interpretation presented by the parties should not have been resolved without the benefit of a plenary hearing. See,
e.g., Innes v. Innes, 117 N.J. 496, 520 (1990); Lepis v. Lepis, 83 N.J. 139, 159 (1980); Accardi v. Accardi, 369 N.J. Super.
75, 87 (App. Div. 2004); Isaacson v. Isaacson, 348 N.J. Super. 560, 579 (App. Div.), certif. denied, 174 N.J. 364 (2002);
Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.) ("judges cannot resolve material factual disputes based
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upon conflicting affidavits and certifications"), certif. denied, 142 N.J. 455 (1995).
We also reverse the order awarding counsel fees to defendant. In awarding attorney's fees, N.J.S.A. 2A:34-23
requires a court to "consider the factors set forth in the court rule on counsel fees, the financial circumstances of the
parties, and the good or bad faith of either party." In this case, the trial court did not address these pertinent factors,
or the additional factors listed in R. 5:3-5(c). Consequently, we vacate the award of counsel fees in the order of July
22, 2005.
The orders under review are reversed, and the matter is remanded for further proceedings consistent with this
decision. We do not retain jurisdiction.
(continued)
(continued)
7
A-6568-04T2
August 9, 2006
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