MANUEL LIM VS. ROSEMARIE LIMÂ Â (FM-07-163-12, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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 in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2097-15T2
MANUEL LIM,
Plaintiff-Appellant,
v.
ROSEMARIE LIM,
Defendant-Respondent.
_______________________________
Submitted March 28, 2017 – Decided May 11, 2017
Before Judges Fasciale and Sapp-Peterson.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FM-07-163-12.
Charles P. Cohen, attorney for appellant.
Paula L. Crane, attorney for respondent.
PER CURIAM
This is an appeal of two post-judgment orders issued by the
Family Part. The first is the November 6, 2015 order, which among
other relief granted to defendant Rosemarie Lim, directed
plaintiff, Manuel Lim, to provide documents necessary to
effectuate a Qualified Domestic Relations Order (QDRO) and denied
plaintiff's cross-motion for a plenary hearing. The second order,
entered January 8, 2016, denied plaintiff's motion for
reconsideration, amended the May 27, 2015 Amended Final Judgment
of Divorce (AFJOD), awarded counsel fees to defendant and denied
his application for a stay of the order. We affirm both orders.
I.
The parties were married in 1993. Two children, who are not
the subject of this appeal, were born of the union. Subsequent
to their marriage, plaintiff secured employment with Burns and
Roe, where he remained employed until his termination in June
2014. As part of his compensation package, plaintiff maintained
a retirement savings account with Burns and Roe.
On July 18, 2011, plaintiff filed for divorce. Upon the
completion of discovery, trial commenced and on October 8, 2014,
the parties reached a settlement on the issues of child support,
alimony, and equitable distribution, which defendant's counsel
placed on the record. The provisions relevant to this appeal
concern distribution of the Burns and Roe retirement account:
As to the retirement accounts. First of all,
the husband has a Burns and Roe retirement
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savings account, with an approximate value of
$222,000 as of the date of complaint.
That is a marital asset – asset completely.
There – all – we're gonna [sic] – talking about
QDROs – all the QDROs are going to be prepared
. . . at joint expense. This particular – Burns
and Roe retirement savings, from the date of
the marriage – all of it is required after the
date – from date of marriage to date of
complaint and all investment experience is
going to be divided 50/50 between the parties.
Plaintiff's counsel did not raise any objection.
The court directed the parties to submit a signed agreement
and an AFJOD in approximately three weeks. Notwithstanding this
directive, the proposed AFJOD was not submitted to the court until
several months later. During those months, plaintiff objected to
the exclusion from equitable distribution of another retirement
fund held in defendant's name.
The proposed AFJOD was submitted under the five-day rule,
Rule 4:42-1(c). Defendant filed no formal objection to the
proposed AFJOD and the court entered the AFJOD, as proposed, on
May 27, 2015. Paragraph 25 of the AFJOD states:
As to the retirement accounts, the plaintiff
has a Burns and Roe retirement savings account
with an approximate value of $222,000 as of
the date of Complaint. This is a marital asset
and all Domestic Relations Orders are going
to be prepared at joint expense. All of it is
acquired from the date of marriage to date of
complaint and all investment experience is
going to be divided 50% to the plaintiff and
50% to the defendant.
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In July 2015, plaintiff's counsel received a letter, dated
July 20, 2015, from Rosemary Weiss, a (QDRO) consultant for Troyan,
Inc. (Troyan), the pension expert the parties jointly selected.
The letter indicated that plaintiff's Burns and Roe savings plan
was terminated on June 27, 2014.
In response, plaintiff's counsel advised Troyan that the
Burns and Roe account had been rolled over directly into an
individual retirement account with Vanguard and attached a copy
of the most recent Vanguard statement, which reported a balance
in the account, as of June 30, 2015, in the amount of $353,775.50.
This amount reflected a growth in the account of approximately
$131,775.20, since July 18, 2011, the date the complaint was filed
and also the date the parties agreed was the end date of the
coverture period for purposes of equitable distribution.
On August 11, 2015, Troyan advised the parties that in order
to determine defendant's share of the former Burns and Roe account,
it required confirmation of plaintiff's termination date from
Burns and Roe, as well as a "copy of each statement from the
Savings Plan from July 18, 2011 to the date of transfer[.]"
Plaintiff failed to provide this information, which resulted in a
motion by defendant seeking an order directing plaintiff to provide
the requested information.
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Plaintiff responded to the motion by filing a cross-motion
seeking in relevant part, the denial of defendant's motion and a
determination that the sum of $222,000 was the total amount to be
distributed between the parties. Plaintiff argued that any
investment experience earned subsequent to the date he filed the
divorce complaint should not be included in any distribution to
defendant. Plaintiff additionally claimed that defendant's
counsel incorrectly stated the terms of the settlement when she
placed the settlement on the record on October 8, 2014, and that
he never agreed to divide the investment experience on a 50/50
basis. Plaintiff also requested a plenary hearing to address the
"distribution of pensions and/or retirement accounts."
The court conducted oral argument on November 6, 2015, and
rendered an oral decision on that same date. In reaching its
decision regarding distribution of the Burns and Roe account, the
court stated that the distribution amount is "always whatever it
is at the time of distribution and if there [are] increases or
decreases due to market changes, due to passive changes, then the
parties share that." In the order memorializing its decision also
entered on November 6, 2015, the court stated:
Plaintiff is not entitled to the investment
experience that has accumulated on defendant's
share of the account just as defendant is not
entitled to the investment experience that has
accumulated on plaintiff's share of the
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account. Troyan, Inc. shall determine the
amount of investment experience to attribute
to defendant's coverture share that has
accumulated since that date.
The court denied plaintiff's request for a plenary hearing.
Plaintiff moved for reconsideration once again requesting a
plenary hearing or, alternatively, seeking an order directing him
to pay directly to defendant $111,000, "in order to fully and
finally resolve this divorce litigation, without the need for a
new or [another] amended Judgment of Divorce as required by
Troyan's November 18, 2015 correspondence." The court conducted
oral argument on the motion on January 18, 2016, and following
oral argument denied plaintiff's motion.
In denying the motion, the court characterized the relief
sought by plaintiff as "simply plaintiff's attempt at a fourth
bite at the 'proverbial apple.'" The court specifically found
that
[t]he November 18, 2015 letter from Troyan
indicates that plaintiff made no contributions
to the IRA between the cut-off date of July
18, 2011 and September 2015. The principle
funds in this account were deposited solely
during the coverture period, meaning that the
entire account, including investment
experience shall be shared on a 50/50 basis
pursuant to the parties' agreement.
The court highlighted that the Burns and Roe account, as of
the date of the hearing on the reconsideration motion, had still
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not been divided. Consequently, the court reasoned that "each
parties' $111,000 share has been accruing investment experience
while both shares are still in one account in plaintiff's name."
The court concluded that defendant was therefore entitled to the
investment experience earned on her share while it was being held
in plaintiff's account. The court explained, "[i]f defendant's
share had been earning investment experience in an account separate
from plaintiff's share, plaintiff would not have a claim to that
investment experience. Plaintiff cannot reap the rewards of
defendant's share being invested in his name."
Addressing plaintiff's argument that Troyan's requirement for
an AFJOD was proof that the settlement terms placed on the record
on October 8, 2014, had changed, the court found the only thing
that had changed was the name associated with the Burns and Roe
account and that this name change was the basis for Troyan's
request for an amended judgment. The court further explained that
it was the same account, with the same funds, which had simply
been rolled over to create a new account, now under the control
of Vanguard rather than Burns and Roe. The court concluded that
Troyan could not effectuate a QDRO on an account that no longer
existed and it was this fact, which prompted the need for a further
amendment of the AFJOD. The present appeal followed.
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On appeal, plaintiff contends the parties' submissions in
support of their motion and cross-motions returnable November 6,
2015, raised genuinely disputed issues that could only be resolved
in a plenary hearing and, therefore, the trial court erred when
it refused to conduct a plenary hearing to ascertain the parties'
intent when they entered into the settlement agreement concerning
the pension distribution of the Burns and Roe account. Plaintiff
also urges this panel to exercise original jurisdiction and order
distribution of all pensions/retirement funds during the period
of coverture.
II.
We commence our analysis by highlighting our Supreme Court's
most recent iteration of the import of marital settlement
agreements:
Settlement of disputes, including
matrimonial disputes, is encouraged and highly
valued in our system. "'strong public policy
favoring stability of arrangements' in
matrimonial matters." (quoting Smith v. Smith,
72 N.J. 350, 360 (1977)). This Court has
observed that it is 'shortsighted and unwise
for courts to reject out of hand consensual
solutions to vexatious personal matrimonial
problems that have been advanced by the
parties themselves.' Ibid. (quoting Petersen
v. Petersen, 85 N.J. 638, 645 (1981)).
Therefore, 'fair and definitive arrangements
arrived at by mutual consent should not be
unnecessarily or lightly disturbed.' Id. at
193-94 (quoting Smith, supra, 72 N.J. at 358.)
Moreover, a court should not rewrite a
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contract or grant a better deal than that for
which the parties expressly bargained.
Solondz v. Kornmehl, 317 N.J. Super. 16, 21-
22, (App. Div. 1998).
A settlement agreement is governed by
basic contract principles. J.B. v. W.B., 215
N.J. 305, 326, (2013) (citing Pacifico v.
Pacifico, 190 N.J. 258, 265 (2007)). Among
those principles are that courts should
discern and implement the intentions of the
parties. Pacifico, supra, 190 N.J. at 266
(citing Tessmar v. Grosner, 23 N.J. 193, 201
(1957)). It is not the function of the court
to rewrite or revise an agreement when the
intent of the parties is clear. J.B., supra,
215 N.J. at 326, 73 (citing Miller v. Miller,
160 N.J. 408, 419 (1999)). Stated
differently, the parties cannot expect a court
to present to them a contract better than or
different from the agreement they struck
between themselves. Kampf v. Franklin Life
Ins. Co., 33 N.J. 36, 43. (1960) (citations
omitted). Thus, when the intent of the
parties is plain and the language is clear and
unambiguous, a court must enforce the
agreement as written, unless doing so would
lead to an absurd result.
[Quinn v. Quinn, 225 N.J. 34, 44-45 (2016).]
Guided by these principles, we note that "[a]pplications for
relief from equitable distribution provisions contained in a
judgment of divorce and property settlement agreements are subject
to [Rule 4:50-1] and not, as in the case of alimony, support,
custody, and other matters of continuing jurisdiction of the court,
subject to a 'changed circumstances' standard." Pressler &
Verniero, Current N.J. Court Rules, comment 6.1 on R. 4:50-1 (2017)
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(citing Miller v. Miller, 160 N.J. 408, 418 (1999)); see also
Harrington v. Harrington, 281 N.J. Super. 39, 48 (App. Div.),
certif. denied, 142 N.J. 455 (1995).
Rule 4:50-1 (Rule) provides that relief may be obtained
from a final judgment or order for the
following reasons: (a) mistake, inadvertence,
surprise, or excusable neglect; (b) newly
discovered evidence which would probably alter
the judgment or order and which by due
diligence could not have been discovered in
time to move for a new trial under R. 4:49;
(c) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation,
or other misconduct of an adverse party; (d)
the judgment or order is void; (e) the
judgment or order has been satisfied, released
or discharged, or a prior judgment or order
upon which it is based has been reversed or
otherwise vacated, or it is no longer
equitable that the judgment or order should
have prospective application; or (f) any other
reason justifying relief from the operation
of the judgment or order.
In order to obtain relief under the Rule the party seeking
such relief is required to present proof "of exceptional and
compelling circumstances" justifying the relief sought because the
Rule is "[d]esigned to balance the interests of finality of
judgments and judicial efficiency against the interest of equity
and fairness." Harrington, supra, 281 N.J. Super. at 48 (citing
Baumann v. Marinaro, 95 N.J. 380, 392 (1984)). "[T]o establish
the right to such relief, it must be shown that enforcement of the
order or judgment would be unjust, oppressive or inequitable."
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Ibid. (citations omitted). Relief under this Rule is granted
sparingly and a party is entitled to a hearing on the application
only upon a showing that there exists genuinely disputed issues
of material fact supporting the relief sought. Barrie v. Barrie,
154 N.J. Super. 301, 303-04 (App. Div. 1977), certif. denied, 75
N.J. 601 (1978).
Moreover, not every factual dispute on a motion requires a
plenary hearing. A plenary hearing is only necessary to resolve
genuine issues of material fact in dispute. Eaton v. Grau, 368
N.J. Super. 215, 222 (App. Div. 2004); Harrington, supra, 281 N.J.
Super. at 47; Adler v. Adler, 229 N.J. Super. 496, 500 (App. Div.
1988). Genuinely disputed issues of fact are those having
substance as opposed to insignificance. Cokus v. Bristol Myers
Squibb Co., 362 N.J. Super. 366, 370 (Law Div. 2002), aff'd o.b.,
362 N.J. Super. 245, certif. denied, 178 N.J. 32 (2003). A trial
judge's decision whether to allow or deny such relief on one of
the six specified grounds in the Rule should be "left undisturbed
unless it results from a clear abuse of discretion." Pressler &
Verniero, supra, comment 1 on R. 4:50-1 (citing U.S. Bank Nat'l
Ass'n v. Guillaume, 209 N.J. 449, 467 (2012)).
Here, there is absolutely no proof of mistake, newly
discovered evidence, fraud, overreaching, unconscionability, or
any other enumerated ground to warrant modification of the
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equitable distribution provisions of the AFJOD. On the contrary,
at the time the settlement regarding the Burns and Roe retirement
provision was placed on the record and eventually incorporated
into the Amended Final Judgment of Divorce, both parties were
represented by counsel. Neither party raised any objection to this
specific provision, either on the day the settlement was placed
on the record, prior to the issuance of the AFJOD, or during the
five-day period the proposed AFJOD had been submitted to the court
pursuant to Rule 4:42-1(c). Indeed, under Rule 4:42-1(c), the
court, in its discretion could have listed the matter for a hearing
had an objection to the proposed judgment been raised by plaintiff
at that time.
The record further reveals that prior to placing the
settlement on the record, the court cautioned both parties:
I want you to listen carefully as counsel
places the settlement on the record. You're
going to be questioned as to whether you
understand it, whether you agree to all the
terms, OK? This is a settlement. Once you
acknowledge that you understand it and you
agree to it, there's no going back, OK? So, I
just want to be clear that – [because] it seems
like every time we make one step forward we
take five steps back.
After defendant's counsel placed the terms of the settlement on
the record, the court questioned both parties regarding their
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understanding of the agreement and willingness to be bound by the
terms articulated on the record.
The following colloquy occurred, first between plaintiff and
his attorney, then between plaintiff and the court, and finally
between plaintiff and defendant's counsel:
MR. COHEN: Plaintiff, you heard the terms
of the settlement as they were placed on the
record just now, by Ms. Crane. This settlement
was based upon compromises that were made over
the past several days, and possibly even
earlier. Do you understand the terms of the
agreement?
PLAINTIFF: Yes, I do.
MR. COHEN: Under all of the
circumstances, do you find same to be
reasonable and fair in order to end this
divorce litigation on this date?
PLAINTIFF: I don’t think it's fair, but
I'll agree to it.
THE COURT: Well, in the spirit of
compromise and negotiation, recognizing you
didn’t get everything you wanted, she didn’t
get everything she wanted, but you
compromised, you met in the middle or -- or
part way in so that you could resolve this,
and you wouldn’t have to go through the
expense and the stress of a trial. Under those
circumstances, do you think it’s fair and
reasonable?
PLAINTIFF: Yes.
. . . .
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THE COURT: Anybody force or make you sign
it -- well, anybody make -- force or make you
enter into this agreement against your will?
PLAINTIFF: No.
THE COURT: Okay. Anybody promise you
anything other than what’s been placed on the
record today?
PLAINTIFF: No.
THE COURT: Have you had enough time to
review this agreement and discuss it with your
attorney?
PLAINTIFF: Yes.
. . . .
MS. CRANE: Plaintiff, you understand that
you can’t come back and say, oh, I forgot this
and you didn’t handle this and we didn’t do
that –
PLAINTIFF: I agree.
MS. CRANE: -- this is the -- what I placed
on the record is the entire agreement. All
other claims or charges are waived.
PLAINTIFF: Right.
Additionally, it is undisputed that the Burns and Roe account
was acquired during the marriage and therefore deemed a marital
asset. As the court noted in the statement of reasons:
. . . the account was not divided at [the
time the divorce complaint was filed] and
still has not been divided. Thus each parties'
$111,000 share has been accruing investment
experience while both shares are still in one
account in plaintiff's name. Defendant is
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entitled to the investment experience earned
on her share while it is being held in
plaintiff's account. If defendant's share had
been earning investment experience in an
account separate from plaintiff's share,
plaintiff would not have a claim to that
investment experience. Plaintiff cannot reap
the rewards of defendant's share being
invested in his name.
Moreover, as highlighted by the court during the January 8,
2016 hearing, the Burns and Roe account was described on October
8, 2014, as having an "approximate value of $222,000," because
at the time of the settlement was placed on the record, plaintiff
had yet to provide any documentation associated with the account,
notwithstanding that the parties were in trial.
Turning to plaintiff's claim of newly discovered evidence,
the court properly found that Troyan's requirement for a new
Amended Judgment of Divorce was not, as plaintiff urged, proof
that the settlement terms had changed. Rather, the court correctly
found that once Troyan discovered that plaintiff's Burns and Roe
account had been terminated and rolled over into Vanguard, the
judgment needed to be amended to reflect the account's new name.
Thus, while the name associated with the funds changed, the terms
of the settlement remained consistent. Therefore, plaintiff's
claim of newly discovered evidence lacks merit.
However, assuming plaintiff's claim of newly discovered
evidence as a basis for relief from judgment had any facial merit,
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in order to obtain such relief, the party seeking the relief must
demonstrate "that the evidence would probably have changed the
result, that it was unobtainable by the exercise of due diligence
for use at the trial, and that the evidence was not merely
cumulative." Quick Chek Food Stores v. Twp. of Springfield, 83
N.J. 438, 445 (1980) (citing State v. Speare, 86 N.J. Super. 565,
581-82 (App. Div.), certif. denied, 45 N.J. 589 (1965)). All
three requirements must be met. See ibid. Here, this information
was only "new" because plaintiff failed to produce any
documentation regarding the Burns and Roe account, or at the very
least notify defendant that the account had been rolled over into
a different IRA. Plaintiff failed to do so prior to trial, while
the settlement was being placed on the record during the trial or
after the trial.
To summarize, substantial, credible, and undisputed evidence
in the record demonstrates that plaintiff's amended cross-motion
failed to meet the standards for relief from judgment under the
Rule. Moreover, the record demonstrates plaintiff's understanding
of the terms of the settlement and his knowing and voluntary assent
to its terms. Under such circumstances, a plenary hearing was not
necessary to ascertain the intent of the parties. In short, we
discern no basis on this record from which we may conclude the
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court abused its discretion in denying the relief sought by
plaintiff.
III.
Finally, plaintiff contends the court improperly awarded
attorney's fees to defendant after it denied his cross-motion.
The court awarded defendant $2,527.50 in counsel fees, which
included the court's consideration of defense counsel's time
expended in preparing and addressing the motions as well as the
oral arguments conducted on the two post-judgment motions.
We review a trial court's award of fees again under an abuse
of discretion standard, Yueh v. Yueh, 329 N.J. Super. 447, 466
(App. Div. 2000) (citation omitted), and such an award will be
disturbed "only on the 'rarest occasion[.]'" Strahan v. Strahan,
402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine v.
Pantzer, 141 N.J. 292, 317 (1995)). In Yueh, supra, the court
held conduct that increases litigation costs through
recalcitrance, defiance of court orders or misrepresentation will
support an award of attorney's fees. 329 N.J. Super. at 459-60.
Here, while the court failed to express its findings in the
January 8, 2016 Statement of Reasons appended to its order, the
record clearly and convincingly demonstrates that the counsel fee
awarded to defendant was the direct result of plaintiff's
noncompliance with previously entered orders.
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Plaintiff failed to notify defendant or the court that as of
June 27, 2014, his Burns and Roe account no longer existed under
that name. In fact, on the day the settlement agreement was placed
on the record, the account had not been in existence for
approximately two months. Yet, plaintiff allowed the settlement
to be placed on the record with specific reference to the account
in detailing the terms of the settlement, without alerting the
court that the account no longer existed.
After the settlement was placed on the record and knowing
that a pension expert would be preparing a QDRO, plaintiff still
failed to apprise defendant, defendant's attorney or Troyan of the
termination of the Burns and Roe account and its direct rollover
into the Vanguard account. Once Troyan discovered that the Burns
and Roe account no longer existed, it requested specific
documentation and information about the status of the funds.
Plaintiff failed to respond to this request. This ultimately
generated significant additional work not only for defendant's
counsel, but also for Troyan. The court noted in its November
6, 2015 order, that plaintiff had yet to provide the documents
required by Troyan.
Irrespective of the merits of plaintiff's claims in his cross-
motion, the pension expert was going to need all of the requested
documentation. Thus, no reasonable argument could have been
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advanced justifying plaintiff's ongoing failure to provide the
requisite documents to Troyan. Consequently, the award of counsel
fees here was not so wide of the mark that we can conclude the
court mistakenly exercised its discretion in rendering the award.
Finally, given our conclusion that the court properly denied
plaintiff's request for a relief from judgment and for a plenary
hearing, there is no basis for this court to consider plaintiff's
final argument that we exercise original jurisdiction to resolve
the pension distribution issue.
Affirmed.
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