BRIAN LEE ROBBINS VS. CAROLE ANNE DIONNE (FM-03-1098-14, BURLINGTON COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use i n other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4953-18
BRIAN LEE ROBBINS,
Plaintiff-Respondent/
Cross-Appellant,
v.
CAROLE ANNE DIONNE
f/k/a CAROLE ANNE ROBBINS,
Defendant-Appellant/
Cross-Respondent.
_____________________________
Argued November 2, 2020 – Decided February 26, 2021
Before Judges Hoffman and Suter.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Burlington County,
Docket No. FM-03-1098-14.
Steven P. Monaghan argued the cause for
appellant/cross-respondent (Law Office of Steven P.
Monaghan, attorneys; Jeanne Screen, of counsel and on
the briefs).
Brian Lee Robins, respondent/cross-appellant, argued
the cause pro se.
PER CURIAM
Defendant Carole Anne Dionne and plaintiff Brian Lee Robbins divorced
in June 2016. Since the entry of their judgment of divorce (JOD), the parties
have engaged in extensive litigation regarding a variety of post-judgment issues.
Here, defendant appeals from a June 28, 2019 Family Part order denying a
motion for reconsideration. Specifically, defendant seeks reconsideration of the
wording of the JOD, rejection of the qualified domestic relations order (QDRO)
prepared by her expert, and the amount of life insurance plaintiff must maintain
to secure his pension and alimony obligations. Plaintiff cross-appeals, primarily
challenging the denial of his request for counsel fees. We affirm.
I.
The parties married in 1996. Two children were born of the marriage: a
son, born in 1998, and a daughter, born in 2000. Plaintiff has worked for the
State of New Jersey as an information technology specialist since 1983 and is a
member of the Public Employees Retirement System (PERS). Defendant also
worked for the State, as a computer programmer, for approximately nine years ,
before resigning from her full-time position to devote her attention to the family.
Because defendant only contributed to the pension system for nine years before
retiring, she was not yet vested in her pension and therefore only received the
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return of her contributions. In 2005, medical issues rendered defendant
disabled. She has collected Social Security disability benefits since 2006.
In April 2014, plaintiff filed for divorce. Defendant retained counsel, who
filed an answer and counterclaim on her behalf; however, by the time of trial,
defendant was self-represented, while plaintiff remained represented by counsel.
At a one-day trial on June 14, 2016, each party testified, and sixteen
documents were received in evidence. Plaintiff testified that his pension
contributions, as of June 30, 2014, totaled $81,810, and that the marital portion
of his pension was seventeen years and four months, plus eighteen months of
purchased-back service credit. Plaintiff explained that if he died before his
retirement and before his pension went into pay status, the payout would be the
return of his contributions; however, if plaintiff's death occurs with his pension
in "pay status," he would have the opportunity to select "Option 4." He
explained that, upon his death, Option 4 "provides survivor benefits to continue
that same amount or percentage . . . for the rest of [defendant's] life."
The trial judge appointed Lois Fried, CPA to determine the value of fifty
percent of the marital portion of plaintiff's pension. The judge explained that he
was "going to require that the plaintiff provide a life insurance policy" to cover
the value of defendant's share of the pension. The appraisal was to determine
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the amount of the life insurance necessary to provide security for defendant's
interest in plaintiff's pension.
On June 29, 2016, the trial judge issued the JOD and ordered plaintiff to
obtain a valuation of his pension from Ms. Fried. The judge ordered plaintiff to
pay alimony of $500 per week and required him to maintain life insurance of
$300,000 to secure his alimony obligation; however, he permitted the amount of
insurance to decrease as plaintiff's "obligation for alimony decreases."
Before signing the JOD, the judge reviewed it on the record in the
presence of counsel (by this point, defendant again had retained counsel).
Defendant's attorney raised several issues with the proposed JOD, including this
sentence: "Plaintiff shall name [d]efendant as survivor beneficiary of 50% of the
marital portion of his pension selecting Option 4." Defendant's attorney
expressed concern about whether Option 4 would cover defendant's interest and
wanted specific language added. Ultimately, the judge crossed out the phrase
"selecting Option 4."
Later that day, plaintiff's attorney wrote to Ms. Fried "on behalf of both
parties" to obtain a valuation of defendant's share of plaintiff's PERS pension
benefits. In addition, plaintiff's attorney wrote that defendant's share of the
pension "is 50% of 17 years and 4 months . . . plus an additional one and a half
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years due to a pension buy back during the marriage[,]" and "[t]he purpose of
the valuation is to assist us to determine how much life insurance [defendant]
should carry . . . in case he dies before the pension goes into pay status[.]"
On July 19, 2016, plaintiff's attorney wrote a follow-up letter to Ms. Fried,
indicating that plaintiff was requesting that the appraisal be done as a "schedule"
because it would seem that "as [defendant's] life expectancy reduces . . . the
amount of life insurance should also reduce." The JOD does not mention such
a schedule.1
Thereafter, defendant filed a motion for reconsideration of the JOD, and
plaintiff followed with a cross-motion for reconsideration. Notably, the trial
judge denied plaintiff's "request that he shall have no obligation to pay for life
insurance to secure [d]efendant's interest in her portion of his . . . pension;" in
addition, the judge denied plaintiff's request for defendant to "contribute $6,083
towards his counsel fees and costs[.]" However, the judge granted plaintiff's
"request that [p]laintiff shall select Option 4 on his pension to provide that
1
While Ms. Fried complied with plaintiff's request for a schedule, plaintiff's
expectation that the amount of insurance would decline over time was not
realized. Ms. Fried's schedule called for the amount of life insurance to secure
defendant's interest in plaintiff's pension to increase each year.
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[d]efendant's pension payments shall not be reduced if [p]laintiff dies while the
pension is in pay status."
Ms. Fried completed her appraisal and report, dated July 26, 2016, and
sent it to the parties. In the first paragraph, the report stated that it "is to be used
only to determine the increasing term life insurance needed to secure
[defendant's] interest in [plaintiff's] entitlement through the date of his
retirement." The report provided a schedule representing the various amounts
of life insurance required to secure defendant's interest in plaintiff's pension as
of August 1 of 2016 through 2028, the date anticipated for plaintiff's retirement.
Ms. Fried calculated the varying amounts of life insurance based upon several
assumptions, including the date of retirement, plaintiff's final salary, and
marginal tax rates. The report contained two columns with different scenarios,
Column A assuming defendant would be responsible for the cost of survivor
benefits and Column B assuming the cost of survivor benefits would be shared
pro rata by the parties. Based upon Column B, plaintiff would need to provide
life insurance of $139,675.04 in 2016, with that sum increasing to $188,486.22
by 2028, the last year plaintiff expected to work before retirement.
By this time, the parties agreed to hire Ms. Fried to prepare a draft
qualified domestic relations order (QDRO). However, it appears Ms. Fried's
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report undermined defendant's confidence in her work. Defendant understood
Paragraph 10 of the JOD to direct Fried to appraise the value of the marital
portion of the pension in one lump sum to determine the appropriate level of life
insurance. Defendant believed Ms. Fried was working for plaintiff, rather than
both parties, because she followed plaintiff's direction to prepare a schedule and
defendant was not included in many of the conversations between plaintiff and
Ms. Fried.
Lacking confidence in Ms. Fried, defendant retained Pension Evaluators
at Troyan, Inc. (Troyan) to prepare an alternate QDRO. Defendant's attorney
sent a draft QDRO prepared by Troyan to plaintiff's attorney for review.
However, the parties could not agree which QDRO to sign.
On September 18, 2017, defendant filed a post-judgment motion seeking,
among other things, to implement the Troyan QDRO. On October 16, 2017,
plaintiff filed a cross-motion seeking, among other things, to implement the
Fried QDRO. Since the trial judge was no longer assigned to Burlington County,
the matter was reassigned to a different judge (the motion judge), who presided
over all post-judgment proceedings thereafter.
On November 3, 2017, the motion judge referred the parties to attend
economic mediation to address disputed matters regarding the QDRO, life
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insurance, and other economic issues. After mediation proved unsuccessful, the
judge held a plenary hearing to address these issues. By the time of this hearing,
both parties were self-represented.
At the plenary hearing, which began on February 1, 2019, defendant
presented testimony from Carter Troyan, a Troyan actuary. Mr. Troyan
explained that the Troyan QDRO set forth the marital fraction in accordance
with the Marx2 formula. He further explained that the Fried QDRO did not
calculate the marital fraction with the "the true Marx formula," and "most
importantly[,] it doesn't call for the retirement allowance, which would call for
immediate rejection by the plan of this order." He added that the Fried QDRO
did not account for the possibility of plaintiff becoming disabled or provide for
coverage for group life insurance.
Plaintiff objected to the Troyan QDRO, contending that defendant
receiving a portion of pre-retirement death benefits would constitute "double
dipping." Under the trial judge's ruling, defendant would already receive life
insurance to cover her full interest in his pension should he die before
commencing benefits. Thus, if plaintiff died before commencement of benefits,
2
See Marx v. Marx, 265 N.J. Super. 418 (Ch. Div. 1993) (setting forth a formula
for allocating the marital share of a deferred distribution pension).
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defendant would receive the life insurance covering her interest in his pension
and the percentage of contributions.
At the conclusion of the hearing, on March 8, 2019, the motion judge
ordered plaintiff to maintain his State group life insurance, while employed,
"with defendant as the only beneficiary . . . as security for [his] alimony"
obligation. He also ordered plaintiff to "keep [his] Genworth life insurance
policy active," pending further review. Additionally, the judge ordered the
parties to use the Troyan QDRO; however, the judge vacated this order on April
1, 2019, after determining the Troyan QDRO did not comply with the JOD.
On April 18, 2019, defendant filed a motion for reconsideration of the
April 1, 2019 order, asking the judge to reconsider the order as it related to the
equitable distribution of plaintiff's pension and life insurance issues; in turn,
plaintiff filed a cross-motion addressing the same issues, and seeking counsel
fees. The judge heard oral argument on the cross-motions on May 31 and June
17, 2019. At the hearing, the motion judge expanded on his decision concerning
the QDRO, stating "[t]he only thing that [the trial judge] ordered was the
coverture portion, not the Marx formula. The Marx formula has to specifically
be ordered by the [c]ourt. There was no order[.]" The judge also commented
that the group life insurance was for the alimony, the Genworth policy was for
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the pension, but the JOD did not expressly address plaintiff's group life
insurance.
Defendant argued that plaintiff was required to secure defendant's portion
of his pension (if he dies before pay status) and that Mr. Troyan told her if
plaintiff was utilizing his group life insurance to satisfy that obligation, it must
be included in a QDRO to be recognized by the State. Plaintiff acknowledged
that he must maintain life insurance to cover defendant's interest in his pension.
Under plaintiff's calculations, his life insurance obligation for pension and
alimony together totaled $390,000. To cover this amount, plaintiff requested
that he be permitted to cancel his Genworth policy and name defendant as the
beneficiary on the State group life insurance in the amount of $330,000. When
the motion judge asked plaintiff how he would satisfy the balance of his
obligation, plaintiff stated he would designate a portion of his contributions to
defendant, in lieu of life insurance, to satisfy the gap from $330,000 to $390,000.
At the conclusion of the June 17, 2019 hearing, the motion judge issued
an oral decision denying defendant's request to reconsider his decision selecting
the Fried QDRO over the Troyan QDRO. The judge explained that the Fried
QDRO complied with the trial judge's JOD, while that the Troyan QDRO
inserted noncomplying terms. With respect to plaintiff's cross-motion for
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reconsideration, the judge, among other things, granted, in part, plaintiff's
request to reconsider the order requiring him to maintain the Genworth policy.
In so doing, the judge ruled that plaintiff is responsible to maintain insurance
coverage as security for his alimony obligation and defendant's interest in his
pension; however, he relieved plaintiff of his obligation to continue the
Genworth policy. The judge required plaintiff to "delineate in writing how the
insurance is to be divided between alimony and pension security."
The motion judge issued a written order on June 28, 2019, confirming the
rulings he made at the June 17, 2019 hearing and in his June 24, 2019 oral
opinion. These cross-appeals followed.
On appeal, defendant argues the motion judge erred in denying her motion
for reconsideration 1) by not formally amending the JOD; 2) by ruling that the
draft QDRO prepared by Ms. Fried should be implemented rather than the draft
prepared by Troyan, Inc.; and 3) by not requiring plaintiff to obtain sufficient
life insurance to cover defendant's interest in plaintiff's pension and plaintiff's
alimony obligation.
On his cross-appeal, plaintiff disputes the issues raised by defendant in
her appeal; in addition, he argues the motion judge erred in failing to award him
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$16,169.45 in counsel fees, "primarily on the basis of [defendant's] BAD FAITH
motive."
II.
Reconsideration is "a matter within the sound discretion of the [c]ourt, to
be exercised in the interest of justice." D'Atria v. D'Atria, 242 N.J. Super. 392,
401 (Ch. Div. 1990). It is not appropriate merely because a litigant is
dissatisfied with a decision of the court or wishes to reargue a motion, but
should be utilized only for those cases which fall into
that narrow corridor in which either 1) the [c]ourt has
expressed its decision based upon a palpably incorrect
or irrational basis, or 2) it is obvious that the [c]ourt
either did not consider, or failed to appreciate the
significance of probative, competent evidence.
[Ibid.]
Motions for reconsideration are governed by Rule 4:49-2, which requires
the moving party to explicitly identify the grounds for the motion to fit within
that "narrow corridor" where reconsideration is appropriate:
The motion shall state with specificity the basis on
which it is made, including a statement of the matters
or controlling decisions which counsel believes the
court has overlooked or as to which it has erred.
See also Cap. Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299,
310 (App. Div. 2008); Cummings v. Bahr, 295 N.J. Super. 374, 384-385 (App.
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Div. 1996). "Said another way, a litigant must initially demonstrate that the
[c]ourt acted in an arbitrary, capricious, or unreasonable manner, before the
[c]ourt should engage in the actual reconsideration process." D'Atria, 242 N.J.
Super. at 401.
Defendant contends there are two significant omissions in the JOD: 1)
language awarding fifty percent of the marital portion of plaintiff's pension to
defendant and 2) language ordering plaintiff to obtain a life insurance policy to
secure defendant's interest in his pension. The JOD's omission of such language,
defendant argues, runs counter to the trial court's express intent and rulings.
First, we agree the trial judge intended for plaintiff to secure defendant's
interest in his pension with a life insurance policy. This is apparent from the
judge's own words at trial and in deciding post-judgment motions. See Heinl v.
Heinl, 287 N.J. Super. 337, 353 (App. Div. 1996) (holding that "an oral
pronouncement of a judgment in open court on the record constitutes the jural
act"). When the judge ordered Ms. Fried's appraisal of the marital share of
plaintiff's pension, he explained,
I'm going to require that the plaintiff provide a life
insurance policy, perhaps term, depending on his life
expectancy[,] to secure that amount should he
predecease [defendant]. . . . Whatever the amount
is[,] he's going to have to cover it to ensure that that
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pension amount exists should he predecease his
retirement.
While the JOD instructs plaintiff to "obtain a valuation of his pension from . . .
Fried," it fails to expressly state the judge's intent behind the appraisal – to
determine the amount of life insurance plaintiff must provide to secure
defendant's interest in his pension. Furthermore, the trial judge denied plaintiff's
"request that he shall have no obligation to pay for life insurance to secure
[d]efendant's interest in her portion of his . . . pension" because he intended for
plaintiff to do just that.
Defendant did not appeal the JOD. Nevertheless, because of the omission
of explicit language regarding the life insurance issue, the motion judge
appropriately and correctly addressed this issue in a post-judgment order,
consistent with the obvious intent of the trial judge, based upon the trial judge's
rulings at the conclusion of trial testimony, and his rulings in the one post-
judgment motion he decided. Addressing this issue, the motion judge confirmed
plaintiff's obligation to provide life insurance and ruled that plaintiff may reduce
his life insurance requirement by the amount of alimony he pays each year;
however, the judge also ordered that plaintiff may not decrease the amount of
life insurance below $100,000 since "plaintiff is to pay open[-]durational
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alimony to defendant"; as such, his alimony obligation "may only be terminated
by order of the [c]ourt after a finding of changed circumstances."
We next reject defendant's contention that the motion judge erred when
he declined to reconsider the filing of the Fried QDRO instead of the Troyan
QDRO. The Fried QDRO complies with state law and the JOD. The motion
judge did not abuse his discretion when deciding not to require more. None of
the additional provisions in the Troyan QDRO, including the Marx formula, are
required by law or the JOD. Defendant even acknowledges in her brief that
many provisions in the Troyan QDRO are not in the JOD. Therefore, we find
no abuse of discretion and affirm the motion judge's ruling.
Finally, we reject defendant's contention that the motion judge erred when
he declined to reconsider his order permitting plaintiff to reduce his life
insurance each year as his obligation for alimony decreases. Nor do we see a
need to "clean-up" the matter, as requested by defendant, by requiring plaintiff
to secure a specific amount of life insurance.
The post-judgment orders are consistent with the JOD and defendant
provides no evidence of error. Plaintiff must maintain life insurance to secure
defendant's interest in his pension and his alimony obligations and may reduce
his requirement for life insurance by the amount of alimony he pays each year.
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Moreover, plaintiff must name defendant as a beneficiary of an increasing
amount of life insurance as recommended by Ms. Fried's report. To secure this
amount, plaintiff may use his State group life insurance and assign a portion of
his PERS death benefits and return of pension contributions to defendant. We
find no abuse of discretion in these rulings and affirm.
III.
On cross-appeal, plaintiff essentially disputes the issues raised by
defendant in her appeal; in addition, he argues the motion judge erred in failing
to award him $16,169.45 in counsel fees, "primarily on the basis of [defendant's]
BAD FAITH motive." We disagree.
We review a trial court's order concerning attorneys' fees under an abuse
of discretion standard. Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div.
2007) (citing Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). N.J.S.A. 2A:34-
23 authorizes family courts to award counsel fees in a matrimonial action after
a judge considers "the factors set forth in the court rule on counsel fees, the
financial circumstances of the parties, and the good faith or bad faith of either
party." Chestone v. Chestone, 322 N.J. Super. 250, 255-56 (App. Div. 1999)
(quoting N.J.S.A. 2A:34-23). Rule 5:3-5(c) states that a court should consider
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nine factors, including "reasonableness and the good faith of the position
advanced by the parties[.]"
The motion judge here referenced the factors enumerated in the court rules
and found that those factors did not support an award of counsel fees. The judge
did not find that defendant acted in bad faith. We discern no abuse of discretion
in the judge's determinations. Both parties asserted various claims in post-
judgment proceedings, with varying degrees of success. The record does not
reflect that either party pursued any claims in bad faith.
To the extent plaintiff's brief raises any additional arguments , they lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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