BARBARA A. MASON VS. THOMAS W. MASON (FM-08-0399-12, GLOUCESTER 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NOT FOR PUBLICATION WITHOUT THE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-2378-16T3

BARBARA A. MASON,

Plaintiff-Respondent/
Cross-Appellant,

v.

THOMAS W. MASON,

Defendant-Appellant/
Cross-Respondent.
_______________________________

Submitted May 22, 2018 – Decided August 21, 2018

Before Judges Sumners and Moynihan.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester
County, Docket No. FM-08-0399-12.

Adinolfi & Packman, PA, attorneys for
appellant/cross-respondent (Robert J.
Adinolfi, of counsel and on the briefs; Julie
R. Burick, on the briefs).

Stacy L. Spinosi, attorney for respondent/
cross-appellant.

PER CURIAM
 In this post-judgment divorce matter, defendant Thomas W.

Mason appeals the Family Part's orders dated December 20, 20161

and January 27, 2017, that provided plaintiff Barbara A. Mason was

entitled to survivorship rights to his Public Employees'

Retirement System (PERS) pension, and awarded her counsel fees.

We affirm that order. Plaintiff cross-appeals from the May 13,

2016 order as amended on December 20, 2016, terminating defendant's

alimony obligation due to his early retirement and thereby reducing

her counsel fee award. We reverse and remand that decision.

I.

After thirty-two years of marriage, the parties divorced on

November 14, 2012, followed by the entry of an Amended Final

Judgment of Divorce (AFJD) three weeks later. The parties' Marital

Settlement Agreement (MSA), which was incorporated into the AFJD,

required defendant to pay plaintiff permanent alimony of $195 per

week and maintain a $200,000 life insurance policy for her benefit

as long as alimony continued. A year after the divorce was

finalized, defendant remarried; plaintiff has remained unmarried.

In October 2014, defendant submitted a qualified domestic

relations order (QDRO) prepared by Lois Fried, CPA, to divide his

pension benefits. Without opposition, it was signed by the court

1
The order is actually dated December 20, 2016, but was filed
December 29, 2016.

2 A-2378-16T3
on December 8. Plaintiff subsequently filed a motion to vacate

the QDRO – contending it reflected no survivorship rights, cost

of living adjustment, and no interest on defendant's other pension

benefits – and to enforce litigant’s rights for failure to pay

alimony and attorney's fees. Defendant cross-moved to enforce the

QDRO and to terminate alimony. The request to vacate the QDRO was

denied without prejudice. Defendant's request to terminate

alimony was denied without prejudice pending oral argument on

April 10. The court set aside the QDRO on May 22, 2015, directing

the parties to consult with PERS, ruling that the MSA provided

plaintiff survivorship rights and awarded plaintiff counsel fees.

On February 27, 2015, defendant elected to take early

retirement with full medical benefits, which reduced his annual

income from $70,000 to an annual pension of approximately $42,000,

and replaced plaintiff with his new wife as the beneficiary of his

life insurance policy. When plaintiff learned of this over a year

later, she filed a motion to compel discovery; to require defendant

to reimburse her the portion of the pension benefit he had already

received plus interest; to reinstate her survivor benefits rights

to defendant's pension; to require that defendant obtain life

insurance with her as beneficiary to protect his MSA obligation

to provide her with his pension benefits; and to have the parties

sign a QDRO consistent with the parties intent in the MSA.

3 A-2378-16T3
Defendant cross-moved seeking reinstatement of the initially

submitted QDRO; credits for back taxes paid; termination of his

alimony and life insurance obligation retroactive to his

retirement date; and counsel fees. Upon concluding the MSA

provided that plaintiff had a survivorship interest in defendant's

pension, the court ordered on May 13, 2016,2 that the parties were

required to have Fried revise the QDRO to determine plaintiff's

share of defendant's pension based on plaintiff alone having the

survivorship benefits, and that defendant had to pay plaintiff

$13093 per month while the QDRO was pending. The order also

required defendant to obtain life insurance naming plaintiff as

the beneficiary and to pay plaintiff $4000 for her counsel fees.

Furthermore, the court terminated defendant's alimony obligation

effective February 1, 2015. In a January 27, 2017 order, the

court denied defendant's motion to stay enforcement pending

appeal, and granted plaintiff's motion to enforce the May 13, 2016

order.

On appeal, defendant contends the court erred in its

enforcement of the plain language of the MSA and AFJD with respect

2
The order was issued to the parties on October 5, 2016.
3
The amount was corrected by the court on December 29, 2016.

4 A-2378-16T3
to the QDRO and granting plaintiff's survivorship interest with

life insurance.

According to paragraph nine of the AFJD:

The parties shall divide Husbands PERS Plan
equally by way of [QDRO] based upon the
marital coverture formula, which is from the
Date of Marriage; 10/27/79 through Date of
Complaint for Divorce; 11/17/11.

Amount of Wife's Benefits: Accordingly,
effective as of the date of this document,
Wife shall be assigned a portion of Husband's
retirement benefits in an amount equal to the
actuarial equivalent of Fifty (50%) Percent
of the Marital Portion of Husband's Accrued
Benefit, Husband shall be solely responsible
for repayment of all pension loans according
to requirements of PERS. Husband will take
no further pension loans until the QDRO is
complete. Wife shall receive a separate
interest [o]f Husband's pension, so that any
further actions by Husband with respect to the
pension loans will not affect Wife's share.
Wife's separate interest shall not be affected
by the Husband's loans and her benefit shall
not be reduced as a result of same. The
parties shall share equally in the costs of
the preparation of said QDRO utilizing Lois
Fried to perform the same.

Defendant argues "the sole purpose of the use of the language

'separate interest' is intended to separate [plaintiff] from any

liability as to [his] PERS pension loan."4 Defendant further

argues the language "separate interest" only serves the purpose

4
The parties were unaware at the time of divorce that PERS did
not allow distribution with a separate interest approach.

5 A-2378-16T3
"to insulate [plaintiff] from any liability as to [his] PERS

pension loan." We are unpersuaded.

In evaluating defendant's contentions, we are mindful that

"[a MSA] is governed by basic contract principles." Quinn v.

Quinn, 225 N.J. 34, 45 (2016) (citing J.B. v. W.B., 215 N.J. 305,

326 (2013)). The trial court "should discern and implement the

intentions of the parties." Ibid. (citing Pacifico v. Pacifico,

190 N.J. 258, 265 (2007)). "[W]hen 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." Ibid. In addition, a court is not positioned

to "rewrite or revise an agreement when the intent of the parties

is clear." Ibid. (citation omitted).

In our review, "when [we] conclude[] there is satisfactory

evidentiary support for the trial court's findings, '[our] task

is complete and [we] should not disturb the result.'" Elrom v.

Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015) (quoting Beck v.

Beck, 86 N.J. 480, 496 (1981)). "Deference is appropriately

accorded to factfinding; however, the trial judge's legal

conclusions, and the application of those conclusions to the facts,

are subject to our plenary review." Ibid. (quoting Reese v. Weis,

430 N.J. Super. 552, 568 (App. Div. 2013)). "[L]egal conclusions

6 A-2378-16T3
are always reviewed de novo." Id. at 433-34 (citing Manalapan

Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Applying these principles, we conclude the court's decision

in determining the parties' intent is supported by the record and

consistent with the law. The court concluded "that the inclusion

of the word[s] 'separate interest' in . . . [paragraph nine

establishes that] . . . [p]laintiff['s] . . . rights create[] a

distinction in how the parties intended to treat her interest in

[d]efendant's PERS Plan when compared to [d]efendant's interest

in [p]laintiff's Shoprite Pension." The court further analyzed

the meaning of "separate interest" by comparing the definitions

supplied by the Department of Labor (DOL) and its plain meaning.

The court notes, the DOL

describes the separate interest approach as
dividing the participant's benefit, rather
than just payment, into two separate portions
which allows the alternate payee to manage
their benefit with the same rights as those
of the primary beneficiary. The separate
approach allows for the alternate payee to
receive their benefit based on their life
expectancy and retirement age. It creates,
by definition a survivorship right. . . . The
separate interest approach effectively grants
the alternative payee an independent benefit
that is not linked to that of the primary
payee.

The court also found "there is no evidence that . . . [p]laintiff

entered an agreement to accept a benefit essentially up to twenty

7 A-2378-16T3
percent less than her actual . . . 'fifty percent actuarial

coverture share.'" The court thus reasoned the words "separate

interest" were included in the MSA to intentionally provide

survivorship rights to plaintiff. The court further noted that

the words "'separate interest' were not needed to protect either

parties from the negative impact of pension loans made by the

other." In sum, the court properly analyzed the MSA's inclusion

of the term "separate interest," and we agree with its

determination that it was "included in the [MSA] intentionally

with the intent of providing a survivorship right in . . .

[p]laintiff to her equitable distribution share of the PERS pension

in monthly payments until her death, regardless of whether . . .

[d]efendant predeceased her."

Defendant argues that the court erred in finding plaintiff

was entitled to a survivorship interest in his pension in

accordance with the AFJD's paragraph ten, which provides:

The parties shall divide the Wife's Shoprite
Pension Plan equally for all benefits accrued
during the marital [coverture], from the date
of marriage; 10/27/79 through 11/17/11; Date
of Complaint for Divorce. It is the
[intension] of the parties for [defendant] to
receive 50% of the marital covertures portion
of this pension. In the event that as of the
date [of] Complaint [there] existed a pension
loan with an amount still owed of as of the
Date of Complaint as well as loans taken post
complaint, if any, [plaintiff] is solely
responsible for the repayment of any pension

8 A-2378-16T3
 loans under this plan and [defendant's]
benefit shall not be reduced by the amount of
said outstanding loans. The parties shall
share equally in the costs of the preparation
of said QDRO utilizing Lois Fried to perform
the same.

Our review of the record discloses there was adequate,

substantial, credible evidence in the record to support the

findings made by the court. Thus, we find no fault with the

court's reasoning:

[p]laintiff's retirement benefit is a fraction
of [d]efendant's. Defendant was the main wage
earner during the thirty-two year coverture
period of the marriage. As a result, his
pension is much more valuable. It was logical
to not provide a separate survivorship right
to [d]efendant in [p]laintiff's plan to avoid
the additional cost of that right, given that
[d]efendant is not dependent on that monthly
payment to meet his needs.

The court's decision is consistent with N.J.S.A. 2A:34-23.1(f),

which requires the consideration of "[t]he economic circumstances

of each party at the time the division of property becomes

effective."

In challenging plaintiff's right to survivorship benefits,

defendant also argues that the court erred in requiring him to

provide life insurance for plaintiff's benefit because he retired

and decided to give his survivorship rights to his new wife in

place of plaintiff. Recognizing that the pension plan does not

allow defendant to choose another survivorship beneficiary because

9 A-2378-16T3
thirty days have passed since his retirement start date, the court

found that "[t]he only remaining mechanism which the court may

order is for him to provide life insurance naming [plaintiff] as

irrevocable beneficiary and providing a decreasing death benefit,

annually, based on the then present value of funding a lump sum

sufficient to provide her monthly benefits should [he] predecease

her."5 We conclude the court's decision is a sound remedy to place

the parties in the position as set forth in the MSA; that plaintiff

is entitled to her alimony payments should defendant predecease

her.

We turn next to the parties' respective contentions regarding

continuation of alimony payments to plaintiff. Defendant argues

the court failed to terminate his alimony obligation retroactive

to the date of his retirement. He contends the court's decision

violated N.J.S.A. 2A:34-23(b) and -23(j)(4),6 by allowing

5
To avoid reducing defendant's current available disposable
income, the court also suggested that defendant's second wife
could voluntarily agree to divert $1309 from her pension
survivorship benefits to pay plaintiff's monthly alimony as set
forth in the MSA; leaving the second wife with the balance of
$1700 per month. However, the court admitted it had no authority
over the second wife.
6
According to N.J.S.A. 2A:34-23(j)(4), "assets distributed
between the parties at the time of the entry of a final order of
divorce or dissolution of a civil union shall not be considered
by the court for purposes of determining the obligor’s ability to
pay alimony following retirement."

10 A-2378-16T3
plaintiff "to continue collecting alimony despite [his]

retirement." On the other hand, plaintiff's cross-appeal contends

the court erred in finding defendant's early retirement and

termination of alimony is "without full disclosure by defendant

about his financial situation and without a full analysis of

N.J.S.A. 2A:34-23(j)." Plaintiff further adds that an "inquiry

should be made as to whether the retirement was in good faith but

also whether . . . it was reasonable for the supporting former

spouse to elect early retirement" based on the applicable factors

of N.J.S.A. 2A:34-23(j).7 We conclude the merits favor plaintiff.

Effective September 10, 2014, our legislature amended the

alimony statute, N.J.S.A. 2A:34-23, to add a new subsection (j),

which began by stating: "Alimony may be modified or terminated

upon the prospective or actual retirement of the obligor."

N.J.S.A. 2A:34-23(j). In addition, N.J.S.A. 2A:34-23(j)(2),

provides in pertinent part:

(2) Where the obligor seeks to retire prior
to attaining the full retirement age as
defined in this section, the obligor shall
have the burden of demonstrating by a
preponderance of the evidence that the
prospective or actual retirement is reasonable
and made in good faith. Both the obligor’s
application to the court for modification or
termination of alimony and the obligee’s

7
Plaintiff also contends a letter by defendant's doctor regarding
defendant's medical condition resulting in his retirement was
inadmissible hearsay.

11 A-2378-16T3
response to the application shall be
accompanied by current Case Information
Statements or other relevant documents as
required by the Rules of Court, as well as the
Case Information Statements or other documents
from the date of entry of the original alimony
award and from the date of any subsequent
modification.

In order to determine whether the obligor has
met the burden of demonstrating that the
obligor’s prospective or actual retirement is
reasonable and made in good faith, the court
shall consider the following factors:

(a) The age and health of the parties at the
time of the application;

(b) The obligor’s field of employment and the
generally accepted age of retirement for those
in that field;

(c) The age when the obligor becomes eligible
for retirement at the obligor’s place of
employment, including mandatory retirement
dates or the dates upon which continued
employment would no longer increase retirement
benefits;

(d) The obligor’s motives in retiring,
including any pressures to retire applied by
the obligor’s employer or incentive plans
offered by the obligor’s employer;

(e) The reasonable expectations of the parties
regarding retirement during the marriage or
civil union and at the time of the divorce or
dissolution;

(f) The ability of the obligor to maintain
support payments following retirement,
including whether the obligor will continue
to be employed part-time or work reduced
hours;

12 A-2378-16T3
 (g) The obligee’s level of financial
independence and the financial impact of the
obligor’s retirement upon the obligee; and

(h) Any other relevant factors affecting the
obligor’s decision to retire and the parties’
respective financial positions.

Because the court failed to conduct an analysis under this statute,

we remand for the court to do so. Should the court determine that

termination of alimony is appropriate, it must also determine the

effective date of the termination.

Turning to the court's counsel's fee award of $4000 to

plaintiff, both parties challenge the decision. Defendant

contends plaintiff's certification of service was not compliant

with Rule 4:42-9 (b) or (c) or RPC 1.5(a). Plaintiff contends in

her cross-appeal that the court erred by reducing her reasonably

detailed fee request of $9,597.50. None of these contentions are

persuasive.

The decision to award counsel fees in a family court matter

"rests in the discretion of the trial court," Addesa v. Addesa,

392 N.J. Super. 58, 78 (App. Div. 2007), and will be disturbed

"only on the 'rarest occasion,' and then only because of [a] clear

abuse of discretion," Strahan v. Strahan, 402 N.J. Super. 298, 317

(App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317

(1995)).

In its counsel fee award, the court stated:

13 A-2378-16T3
 The applicable [c]ourt [r]ule requires the
court to balance the listed factors. In this
series of motions the court finds the most
relevant factors to be the parties'
comparative resources, the portion of counsel'
fees expended to enforce the court's Orders
and the reasonableness of the parties'
positions. The parties currently appear to
have equally modest means. . . . [D]efendant's
actions in circumventing . . . [p]laintiff's
rights to have the court rule on how the
MSA/AFJD should be interpreted have occurred
throughout this motion litigation. The first
instance was the December 2014 . . .
submission of an order under the "five-day
rule" for signature by the court, in the
absence of consent or a specific court ruling,
where plaintiff's attorney had previously and
clearly noticed defendant['s] attorney that
she disagreed with the language of the QDRO.
The second is . . . [d]efendant's election of
an irrevocable surviving beneficiary, in
contravention of the survivorship right which
he knew [p]laintiff was litigating, without
advising the court or counsel that he had
taken this step. A good deal of the expense
of this litigation would not have occurred if
he had not taken those actions. To
[d]efendant's credit, his position on the
reasonableness of his "early retirement[,"]
objected to by . . . [p]laintiff, was adopted
by the court. Based on the above, the [c]ourt
awards $4,000 as attorney's fees payable by .
. . [d]efendant to . . . [p]laintiff.

Plaintiff has not shown that the court abused its discretion in

the amount she was awarded.

Any arguments not addressed in this opinion lack sufficient

merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E).

14 A-2378-16T3
 Affirmed in part, reversed and remanded in part consistent

with this opinion. We do not retain jurisdiction.

15 A-2378-16T3