KAREN J. DREES VS. PETER T. DREES(FM-02-162-13, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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 only binding 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-0940-14T3

KAREN J. DREES,

Plaintiff-Respondent,

v.

PETER T. DREES,

Defendant-Appellant.
________________________________

Submitted September 13, 2016 – Decided August 28, 2017

Before Judges Gilson and Sapp-Peterson.

On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. FM-02-162-13.

Peter T. Drees, appellant pro se.

Sunshine, Atkins, Minassian, Tafuri, D'Amato,
Beane & Buckner, PA, attorneys for respondent
(Jay R. Atkins and Janell N. Weinstein, on the
brief).

PER CURIAM

Defendant Peter T. Drees appeals from the July 2, 2014 order

entering an Amended Dual Final Judgment of Divorce (AFJD) and the
October 6, 2014 order denying his motion for reconsideration of

the July 9, 2014 order. We affirm both orders.

The parties were married in 2001. Two children were born of

the marriage. In 2012, plaintiff filed a divorce complaint,

seeking, among other reliefs, joint legal custody, primary

residential custody, equitable distribution, alimony, child

support, and legal fees. Defendant filed an answer and

counterclaim. He sought primary residential custody, spousal and

child support, and an award of counsel fees.

Pending dissolution, the parties engaged in significant pre-

trial discovery and the court entered numerous orders pertaining

to financial, custody, and parenting issues. In May 2014, the

parties participated in an Intensive Settlement Conference "ISC",

presided over by the Family Part presiding judge. After extensive

negotiations, the parties reached a settlement on all but three

issues. Plaintiff's counsel memorialized the agreement in a letter

sent to defendant's attorney.

On May 22, 2014, counsel on behalf of the parties placed the

terms of the settlement on the record. However, the parties

agreed that any monies or credits owed would be submitted to an

accountant and that the parties would be bound by the accountant's

determination. They also agreed that any monies owed would be

adjusted out of the proceeds from the sale of the former marital

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residence (FMR); alimony would be fixed at one-third of the

difference between their respective incomes, which, at the time,

was represented to be a base salary of $173,000; and, any

additional income defendant received in the form of bonuses would

also be included in the percentage.

Next, the parties acknowledged that there were pensions and

401-Ks the parties acquired prior to the marriage. They agreed

that each party would waive evaluations and claims to these

accounts because there were no contributions made after the parties

married. With regard to the pensions and 401-Ks accumulated during

the marriage, it was agreed they "would be done via [a Qualified

Domestic Relations Order (QDRO)]."

The parties also reached an agreement regarding their

respective life insurance policies. Although they did not resolve

the disposition of personal property, the parties agreed they

would submit to arbitration, if necessary. Further, the parties

acknowledged they resolved issues of parenting time and custody.

Counsel then put before the court the unresolved issues

between the parties, which were being submitted for resolution at

trial. The first issue related to an e-trade account in

defendant's name, which plaintiff alleged defendant dissipated

contrary to a July 2013 pendente lite order. The second issue

related to plaintiff's application for retroactive pendente lite

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relief as of the filing date of the divorce complaint. The third

issue to be resolved by the court was whether plaintiff was

entitled to additional pendente lite support, which, when

initially ordered, was based upon defendant's imputed income of

$125,000. Subsequent discovery revealed that defendant's base

annual salary, exclusive of any bonus, was $173,000.

Both parties testified at trial. Thereafter, the court

permitted the parties to file post-trial submissions. Plaintiff's

counsel prepared a proposed Dual Final Judgment of Divorce.

Plaintiff's counsel forwarded the proposed judgment to defense

counsel, but received no response. Consequently, plaintiff's

counsel submitted the proposed judgment to the court under the

five-day rule, pursuant to Rule 4:42-1(c). Defense counsel

thereafter formally objected to the proposed judgment.

On June 19, 2014, the court presided over a hearing during

which outstanding issues related to the proposed judgment were

addressed, including the duration of alimony and the retirement

accounts. Defense counsel advised the court that the parties had

agreed on the amount of alimony but not the term. Counsel stated

that plaintiff's position was eight years, while defendant's

position was seven years. The court responded: "Seven and [one-]

half." Defense counsel stated: "That's what [plaintiff's counsel]

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did. . . . But my client is adamant he would like a seven-year

term based upon the facts."

Plaintiff's counsel stated: "That wasn't the deal." Defense

counsel offered to have his client address the court, but the

court stated that it was "not taking testimony, but . . . just

making [judgment]." The court advised the parties to address the

issue in the form of a post-judgment motion.

Defense counsel then addressed several retirement accounts,

which plaintiff represented ended right at the beginning of the

marriage. One account "was plaintiff's Time Warner pension or

401-K." Defense counsel explained:

The way this reads is that those parties are
waiving -- doing a QDRO or dividing them.
Because they ended, these pensions ended --
virtually [ninety-percent] of them were
premarital. That was presented at the four
way conference. It was presented to
[plaintiff's counsel via] letter. My client
is not in agreement with that. He would like
just the [marital] portions of these accounts
divided.

Plaintiff's counsel responded:

That wasn't the deal. The deal was and again
we sent them a letter before we came here for
trial. The deal was that my client stopped
working within the first six or eight months
of their marriage. And there were [s]ome
accumulation by [defendant] of some pension
rights for those period[s] [of] time[s] of the
marriage. We waived them. That was the deal.
We waived them. . . . I sent [defense counsel]
a letter in May before the trial. No

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 objection, put it on the record here. No
objection. . . . That was the deal.

In response to the court's inquiry whether the agreement had

been placed on the record, defense counsel could not recall. He

acknowledged that he received the letter from plaintiff's counsel

and that he offered no objections to it. Nonetheless, he indicated

to the court his "client's belief [] that the representation made

was not accurate."

The court reviewed its notes from the trial and indicated

that the notes were not helpful. The court told counsel that it

was going to "sign the dual final [judgments] prepared by

[plaintiff's counsel]," and indicated to defense counsel that

"you'll have to file [a] motion for reconsideration if you feel

it's something I can do." The court signed the judgment.

The next day, the court entered an order awarding plaintiff

$25,000 in counsel fees. In its written statement of reasons

appended to the order the court addressed the outstanding issues

presented at trial on May 22, 2014.

The court first determined that plaintiff was not entitled

to an adjustment of the pendente lite order. The court found that

during the pendency of the litigation, defendant paid the mortgage,

deposited $27,000 into a joint bank account, to which plaintiff

had access, and "did in fact use to pay various bills by check.

In addition, the [p]laintiff made ATM withdrawals from the joint
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account." The court also found that defendant "paid various credit

card charges on behalf of the family."

The court concluded: "Considering [p]laintiff's needs and

the ability of [d]efendant to contribute to the family's needs in

2013[,] together with the division of assets, the [c]ourt finds

that [p]laintiff is not entitled to an adjustment from the [date

of separation] to May 14, 2013." Likewise, the court determined

that plaintiff was not entitled to a pendente lite adjustment of

support based upon defendant's anticipated gross income of

$173,000 in 2014 because, "on balance . . . [defendant] made a

fair contribution to family expenses from [the date of separation]

to May 14, 2013."

The court determined that plaintiff was entitled to recover

one-half of the repair costs undertaken at the former marital

residence after the date of separation from defendant's share of

the net proceeds. Further, the court concluded defendant failed

"to demonstrate that the [e-trade] account was drawn down to pay

family expenses." Consequently, the court ruled that plaintiff

was entitled to "a credit of [fifty-percent] of the [e-trade]

account of $84,101 or $42,050.50."

Finally, regarding attorneys' fees, the court considered the

factors set forth in Williams v. Williams, 59 N.J. 229 (1971),

including plaintiff's need; defendant's financial ability to pay;

7 A-0940-14T3
and plaintiff's good faith in instituting or defending the action.

After weighing these factors, the court found it appropriate for

defendant to contribute $25,000 towards plaintiff's attorney's

fees.

On July 2, 2014, following the trial judge's retirement and

with the consent of counsel for both parties, another judge entered

the AFJD, incorporating the trial judge's findings on the remaining

issues tried before the court on May 22, 2014. Defense counsel

consented to the form of judgment.

The judgment ordered defendant to pay $37,650 per year in

alimony, for a term of seven and one-half years, along with other

income-based payments in the event that defendant received a higher

salary than the projected $173,000. It set defendant's child

support obligation at either $318 or $305 per week, depending on

the amount of overnight visits the children have with defendant.

Additionally, it directed that disputes regarding the retirement

accounts would be determined by a forensic accountant. Finally,

in conjunction with the June 20, 2014 order, the judgment required

defendant to pay $25,000 in attorney's fees, $12,936 for repairs

to the former marital residence, and $42,050.50 for the e-trade

account, totaling $79,986.50.

Thereafter, defendant, proceeding pro se, sought

reconsideration of the June 20, 2014 order. Plaintiff filed

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various cross-motions and consolidated motions for additional

counsel fees. On August 29, 2014, the trial court heard oral

argument on all of the pending motions. Specifically, defendant

asked the court for arbitration on plaintiff's purported

contribution to repairs to the former marital residence, based

upon his contention plaintiff failed to provide evidence of her

expenses. In addition, defendant requested that the court reverse

its award to plaintiff for his alleged dissipation of the e-trade

account and the award of counsel fees. In turn, plaintiff's

counsel also requested additional counsel fees, noting that the

trial judge awarded substantially less than the $138,000

requested.

In an order dated October 6, 2014, the court denied

defendant's motion. In its written decision, the court determined

that the trial judge provided a comprehensive analysis of the

Williams factors, taking into consideration both defendant's bad

faith and the parties' ability to pay based on their incomes. The

court also noted that defendant's argument that plaintiff hid a

trust from which funds were drawn to pay legal fees was

"preposterous" because the trust "is the [p]laintiff's attorney's

trust account, where the parties agreed to deposit an income tax

refund. Plaintiff's counsel then divided the refund in half, and

issued a check in the amount of $3395 to [both] parties."

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 Regarding plaintiff's repairs to the former marital

residence, the court found that defendant was seeking to arbitrate

an issue after the parties had already conferenced the matter with

the court and reached an agreement. Further, the court observed

that "[d]efendant provided no evidence that the agreement reached

was unfair or inequitable or that [the trial judge's] finding that

[p]laintiff contributed to repairs after the date of separation

was inaccurate."

Similarly, as to the e-trade account, the court determined

that "[d]efendant provided no support for his argument that the

court's finding was palpably incorrect or that the court failed

to consider the significance of the probative evidence." Finally,

the court found the trial judge weighed the appropriate factors

before awarding counsel fees to plaintiff. The court then awarded

plaintiff an additional $6650 in counsel fees as a result of the

reconsideration motion.

On appeal, defendant raises three arguments: (1) the Family

Part improperly proceeded to trial before resolving a fee dispute

concerning a parenting coordinator; (2) the Family Part improperly

entered the AFJD without holding a plenary hearing concerning

plaintiff's pension and the duration of alimony; and (3) the Family

Part used the wrong standard in denying defendant's motion for

reconsideration.

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 "The findings of the Family Part are entitled to particular

deference in view of its 'special expertise in the field of

domestic relations.'" Pressler & Verniero, Current N.J. Court

Rules, comment 6.2 on R. 2:10-2 (2017) (quoting Cesare v. Cesare,

154 N.J. 394, 412-13 (1998)). In addition we have been

particularly mindful of the special expertise of Family Part

judges. See Cesare, supra, 154 N.J. at 412. Furthermore,

[w]ith respect to dissolution matters, the
Family Part has discretion in allocating
marital assets to the parties in equitable
distribution, . . . and an equitable
distribution award will be affirmed as long
as the trial court could reasonably have
reached its result from the evidence presented
and the award is not distorted by legal or
factual mistake.

[Pressler & Verniero, supra, comment 6.2 on
R. 2:10-2 (citing Borodinsky v. Borodinsky,
162 N.J. Super. 437, 443-44 (App. Div. 1978);
Tannen v. Tannen, 416 N.J. Super. 248, 276
(App. Div. 2010), aff'd o.b., 208 N.J. 409
(2011)).]

Thus, we will not disturb a judgment entered by the Family

Part "except upon the basis of a carefully reasoned and factually

supported . . . determination, after canvassing the record and

weighing the evidence, that the continued viability of the judgment

would constitute a manifest denial of justice." In re Adoption of

a Child by P.F.R., 308 N.J. Super. 250, 255 (App. Div. 1998)

(quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977));

See also In re Guardianship of J.T., 269 N.J. Super. 172, 188
11 A-0940-14T3
(App. Div. 1993) (citing Rova Farms Resort, Inc. v. Inv'rs Ins.

Co. of Am., 65 N.J. 474, 483-84 (1974)).

These principles guide our consideration of defendant's

contentions raised in this appeal. First, we address defendant's

argument that the court erred by entering the AFJD on July 2,

2014, without having resolved the issue of defendant's liability

for parenting coordinator fees to Dr. Mark Hatton. We disagree.

In an earlier proceeding before the court, defendant

certified that he did not owe Dr. Hatton $30,624.55. Initially,

the court determined that the question of fees owed was genuinely

disputed, warranting a plenary hearing. However, the court later

determined that "as [defendant] is asking relief of a third party

who is not [a party] to [this] family proceedings[,] [d]efendant's

motion, captioned Dr. Mark Hatton v. Peter Drees, should be filed

in the Civil Division under [D]ocket [N]umber BER-L-1400-15."

We conclude there was no error in the court's refusal to

consider defendant's dispute with the parenting coordinator in the

pending matrimonial action. Although the dispute arose in the

context of the parties' dissolution action, Dr. Hatton was not a

party to the litigation, nor did he file a motion seeking

intervention in the matrimonial action to address the issue of his

outstanding fees. Rather, Dr. Hatton commenced a civil action in

the Law Division under a separate docket, BER-L-1400-15, which the

12 A-0940-14T3
court noted in its order of dismissal. Cf. Sweeney v. Sweeney,

405 N.J. Super. 586, 593-94 (App. Div.), certif. denied, 199 N.J.

519 (2009).

Moreover, defendant's dispute with the parenting coordinator

was irrelevant to any of the three outstanding issues before the

court at the time of trial. Indeed, during the trial, the only

reference to Dr. Hatton arose in the context of the parties

utilizing his office to drop off some of defendant's personal

items.

Next, defendant argues that the judgment is unenforceable

because the trial judge entered the order without addressing two

outstanding issues, specifically the term of the alimony payments

and a discrepancy regarding the retirement accounts.

At the June 19, 2014 proceeding, defense counsel advised the

court that defendant wanted the marital portion of the retirement

accounts divided and that his client was adamant in wanting to

limit alimony to seven years, while plaintiff's position was that

its duration should be eight years. Plaintiff's counsel disputed

defense counsel's claims and argued that the parties had agreed

to the terms reflected in the proposed judgment he prepared.

We are persuaded the entry of judgment setting the duration

of alimony at seven and one-half years reflects the court's

considered judgment as to what was fair and equitable. In reaching

13 A-0940-14T3
this conclusion, we are cognizant that the June 19, 2014 hearing

clearly reflects a dispute between the parties regarding the

duration of alimony. We are equally mindful that the court's

statement of "seven and [one-] half years" may have been its

suggested resolution rather than a definitive disposition.

Nonetheless, the determination that defendant shall pay alimony

to plaintiff for seven and one-half years is a reasonable result,

based upon the evidence before the trial judge, and was not

"distorted by legal or factual mistakes." Tannen, supra, 416 N.J.

Super. at 276.

One final observation regarding the duration of alimony.

Defendant filed his motion for reconsideration one week after the

court entered the AFJD. Plaintiff did not seek reconsideration

of that portion of the judgment directing him to pay alimony for

seven and one-half years.

Turning to the disposition of the retirement accounts, after

defense counsel and plaintiff expressed different recollections

as to what had been placed on the record on May 22, 2014, the

court indicated: "Well, unfortunately my notes don't help us. I

think what I have to do, because we don't have a transcript, is

I'm going to sign the dual final [judgments] prepared by

[plaintiff's counsel] and you'll have to file [a] motion for

reconsideration if you feel it's something I can do."

14 A-0940-14T3
 A review of the May 22, 2014 record confirms the parties

placed on the record their agreement regarding the respective

retirement accounts. The AFJD incorporated these terms. Thus,

the trial judge did not enter judgment without resolving this

issue. There was no need to do so since both parties were present

at the hearing, represented by counsel, and knowingly and

voluntarily reached an agreement on the disposition of their

retirement accounts.

Finally, defendant contends the court applied a more

stringent standard for relief by requiring him to file a motion

for reconsideration rather than resolving the disputed issues. We

reject this argument as lacking in merit. We affirm the denial

of defendant's motion for reconsideration for the reasons

expressed by Judge McGrogan in the comprehensive and well-reasoned

October 6, 2014 written decision appended to the order of the same

date. We add the following comments.

At the June 19, 2014 hearing, the court candidly acknowledged

that its notes were not helpful in resolving the dispute

surrounding the retirement accounts. The court indicated that it

was without the benefit of a "transcript," and invited defendant

to seek reconsideration. Defendant suggests that had the court

resolved the disputed issues before entering judgment, its

decision would have been guided by the interest of justice standard

15 A-0940-14T3
rather than the requirement of a reconsideration motion to identify

matters or controlling decisions the court may have overlooked or

to which it may have erred. R. 4:49-2.

Continuing the proceedings before entering a final judgment,

as defendant urges, would not necessarily mean the court would

have taken additional testimony as defendant presumes. Rather,

it would have called for a review of the May 22, 2014 transcript,

which unequivocally reveals the parties' agreement as to the

disposition of their retirement accounts and the court's

announcement of seven and one-half years on the duration of

alimony. Consequently, the court would have been guided by the

evidence in the record, which is consistent with the ultimate

decision reached by the court. Thus, defendant suffered no

prejudice by the trial judge's decision that he seek

reconsideration.

Finally, as noted above, with the exception of the e-trade

account, defendant's reconsideration motion raised issues other

than the duration of alimony and the retirement accounts.

Specifically, defendant sought reconsideration of the counsel fee

award, the court's finding that the parties agreed to sell the

marital home and divide the net proceeds equally, and the court's

determination that the parties would equally divide defendant's

e-trade account. Therefore, the additional counsel fees awarded

16 A-0940-14T3
were not incurred because defendant sought reconsideration of the

issues related to the duration of alimony and the disposition of

the retirement accounts.

Affirmed.

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