DOROTHY THOMAS VS. DAVID THOMAS (FM-11-0264-01, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be bin ding 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-3722-18T3

DOROTHY THOMAS,

Plaintiff-Appellant,

v.

DAVID THOMAS,

Defendant-Respondent.
_________________________

Argued October 6, 2020 — Decided October 19, 2020

Before Judges Yannotti, Mawla, and Natali.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FM-11-0264-01.

Lauren K. Beaver argued the cause for appellant
(Ulrichsen Rosen & Freed LLC, attorneys; Derek M.
Freed, of counsel and on the briefs; Lauren K. Beaver,
on the briefs).

Jennifer Weisberg Millner argued the cause for
respondent (Stark & Stark PC, attorneys; Corrine E.
Cooke, of counsel and on the brief; Taylor W.
Brownell, on the brief).
PER CURIAM

Plaintiff Dorothy Thomas appeals from a March 18, 2019 order denying

her post-judgment motion for relief from the parties' final judgment of divorce.

We affirm in part and reverse and remand for further proceedings.

Plaintiff and defendant David Thomas were married for twenty-nine

years. Plaintiff filed a complaint for divorce in 2000, and on June 13, 2002, the

parties entered into a marital settlement agreement (MSA), which was

incorporated into the judgment of divorce. Beginning in 1976 and throughout

the marriage, defendant was employed at Mobil (now ExxonMobil). There, he

accumulated income in various plans including: a Merrill Lynch ExxonMobil

Savings and 401k Plan; a UK-Mobil AVC savings Plan; ExxonMobil Savings

Plan; and an ExxonMobil Pension Plan (EMPP).

The MSA named and equally divided each of the savings plans, except the

EMPP. The MSA also contained the following language as one of its "General

Provisions":

Except as in this [a]greement otherwise provided, each
party shall retain whatever property now belongs to him
or her as his or her own property, free and clear of any
claims thereto of whatever nature, by either of them
against the other; it being understood that all property
belonging to either party is now in his or her separate
name and/or independent possession.

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In a separate section entitled "Disclosure" the MSA provided as follows:

The [husband] and [wife] acknowledge that they have
disclosed to the other all financial information and all
assets owned or possessed by the parties, or either of
them, and it is acknowledged that this [a]greement is
entered into in reliance upon that information to the
extent that if there exist other assets not so disclosed,
this [a]greement shall not be a bar to distribution of said
assets.

In November 2000, defendant's counsel sent a letter to plaintiff's attorney

addressing a proposed consent order which plaintiff prepared to place pendente

lite restraints on the dissipation of the parties' assets. Regarding the EMPP,

defendant's counsel stated he did not object to restraints but noted defendant

"has continued to pay into this fund after the [c]omplaint filing date which

portion is now 1 subject to equitable distribution." An administrative hold was

placed on the EMPP and the parties' settlement discussions regarding the asset

was whether defendant would buyout plaintiff's interest or execute a Qualified

Domestic Relations Order (QDRO) to divide the asset.

On February 5, 2002, plaintiff's counsel wrote to defendant's attorney

stating: "it is my understanding that you will direct [defendant] to obtain a

1
The record is unclear whether defendant's counsel meant to say the post-
complaint contributions were "not subject to equitable distribution" as opposed
to "now subject to equitable distribution." Regardless of word choice, the letter
clearly indicates some portion of the EMPP was subject to equitable distribution.
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pension valuation from Exxon Mobil." On May 23, 2002, defendant's counsel

forwarded "a comprehensive proposal of settlement" in part stating: "The

[EMPP] will be the subject of a [QDRO] designating [plaintiff] as [a]lternate

[p]ayee of [fifty percent] of the coverture portion of [defendant's] benefits." On

May 28, 2002, defendant's attorney responded to a May 24, 2002 letter from

plaintiff's counsel, which is not a part of the appellate record, but appears to

have sought a lump sum buyout of plaintiff's portion of the EMPP because

defendant's counsel stated:

I fail to understand the basis of your request for a copy
of the . . . [p]ension [r]eport since your last position was
that [plaintiff] is not interested in a buy-out of her
interest in the [EMPP]. On the contrary, my
understanding is that she wishes to proceed via QDRO
as an [a]lternative [p]ayee thereby making your request
inappropriate.

Plaintiff's counsel responded to the settlement proposal in a June 7, 2002

letter, stating: "As I indicated in my prior proposal, to facilitate the distribution

of this asset, the value . . . of the pension shall be calculated and [plaintiff] shall

receive a lump sum payment equivalent to [fifty percent] of this value from

[defendant's] share of the 401(k) plan." After the divorce was finalized,

defendant's counsel wrote to plaintiff's counsel requesting authorization to

release the administrative hold, which both attorneys executed on May 12, 2003.

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 On July 17, 2015, defendant emailed plaintiff stating: "I am thinking more

seriously of retirement. . . . Before I can select a retirement date, ExxonMobil's

QDRO department requires a waiver signed by you that no claims are being

made against my pension." Defendant advised his attorney would be mailing

plaintiff the waiver. Defendant's counsel forwarded plaintiff the waiver on

August 19, 2015, which stated plaintiff was waiving her interest in the EMPP

"for good and valuable consideration[.]" On August 26, 2015, defendant's

counsel wrote to plaintiff's counsel enclosing the waiver and stated: "In

accordance with the MSA, [defendant] is entitled to retain his interest in the

[EMPP]." However, on March 27, 2016, defendant sent plaintiff's counsel an

email stating: "As I have not decided when I shall retire I no longer require the

waiver at this time."

On July 27, 2017, plaintiff wrote to the ExxonMobil Benefits Service

Center referencing defendant's July 17, 2015 email to her and the August 19,

2015 letter from his attorney enclosing the release. She stated:

On my taking legal advice on the matter, I was advised
not to sign this waiver until the following matter
detailed below was clarified.

1. The issue is that there is no plan in the divorce
document called "ExxonMobil Pension Plan."

....

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5
 2. I have taken legal advice and the position is that if it
is a new plan then it is required that ExxonMobil
advises me when it was created. If the benefit was
earned after the divorce then [defendant] is obviously
entitled to retain it and a waiver is appropriate.

On August 15, 2017, ExxonMobil responded enclosing a copy of the signed May

12, 2003 authorization releasing the administrative hold on the EMPP.

On October 29, 2018, plaintiff's counsel wrote to defendant's attorney

regarding the EMPP and the waiver defendant had previously requested. The

letter stated: "There is no asset that is set forth in the divorce judgment and/or

the [MSA] by this name. As such, [plaintiff] properly declined to sign the

waiver. [I]f this is an asset that was created post-divorce, [plaintiff] requested

production of documentation relative to same to confirm such a fact."

On November 15, 2018, defendant's counsel responded enclosing a copy

of the May 2003 release of the administrative hold on the EMPP and stated the

asset "was excluded from division as an integral part of the settlement." In a

December 4, 2018 letter, plaintiff's counsel responded "that the release of the

administrative hold [was] needed to implement the QDRO for the division of

the Mobil[] Savings Plan QDRO account. [Plaintiff's divorce attorney] did not

waive any right to an equitable distribution of the account, nor could she, as the

account was not identified in the MSA." Defendant's counsel responded as

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follows: "Despite the passage of time, it remains clear that [plaintiff's divorce

attorney] knew the status of the account when she released it in 2003.

[Defendant] recalls that all assets were disclosed and that the exclusion of his

pension from equitable distribution was in consideration for multiple

concessions he made to achieve closure."

On January 24, 2019, plaintiff filed a motion seeking relief from the

judgment of divorce alleging defendant failed to disclose the EMPP. In the

alternative, her motion sought relief from the judgment "as a matter of equity

due to the lack of inclusion of [d]efendant's [EMPP], as an asset subject to

equitable distribution . . . ." The motion also sought discovery, equitable

distribution of the EMPP, to hold defendant in violation of litigant's rights an d

sanction him, and counsel fees. In addition to recounting the contents of the

MSA and the parties' post-judgment communications relating to the EMPP,

plaintiff cited the disclosure provision of the MSA and argued the nondisclosure

of the asset was not a bar to its future distribution.

Defendant cross-moved requesting the court deny the motion, sanction

plaintiff for a frivolous application, and require her to pay his counsel fees.

Defendant argued plaintiff was aware of the EMPP "despite the fact it was not

specifically listed on either party's Case Information Statement [CIS]." He

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argued plaintiff knew of the EMPP because the asset was identified in the

correspondence discussing pendente lite restraints on assets in November 2000.

Defendant pointed to a February 2001 letter from his attorney enclosing plan

statements for the EMPP and an October 2001 letter from plaintiff's attorney

discussing discrepancies in the pension information provided and defendant's

CIS.

In an effort to explain that he did not withhold information, defendant

certified as follows: "Clearly, there was confusion as to the pensions (and correct

names of same), as a result of the merger [of the U.K. and U.S. branches of

ExxonMobil.]" Defendant described how plaintiff's counsel subpoenaed

ExxonMobil for the pension information and then received the information by

authorization. He described how during 2002 the parties' counsel discussed

whether there would be a buyout or a QDRO of the asset.

Regarding the MSA, defendant certified as follows:

Although it is true that the MSA does not specifically
address the ExxonMobil pension and why it was not
included in our MSA, the logical conclusion from the
correspondence between counsel was: 1) that it was
absolutely disclosed and either; 2) not subject to
equitable distribution (exempt) or 3) offset against
another asset.

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Defendant's certification concluded "[t]herefore, it is likely that the [p]laintiff

received approximately $60,000 more in liquid cash assets and securities in

exchange for the waiver of her eventual interest in my [EMPP]." Defendant

stressed "that it is not up to the [c]ourt today to determine whether the

offset/terms set forth in the MSA were or equitable. Rather, the only issue

before this [c]ourt is whether I failed to disclose my [EMPP]."

Plaintiff's reply certification argued that even if the EMPP was identified

she never waived an interest in it. Referring to her own chart of assets, she

disputed defendant's claim that she received a greater equitable distribution and

asserted she received 49.92% of the disclosed assets and defendant 50.08%.

At oral argument, plaintiff's counsel asserted the motion had been filed

pursuant to Rule 4:50-1(f). Defendant's counsel argued the court should review

the motion under Rule 4:50-1(c) because plaintiff alleged defendant failed to

disclose the EMPP, which sounded in fraud.

The motion judge made oral findings and concluded plaintiff had not

demonstrated grounds for relief under Rule 4:50-1(c) because she presented no

clear and convincing evidence of a fraud. He found "the record is replete with

correspondence . . . and mention of the [EMPP] . . . . [A]t best there appears to

have been a lack of follow through on one or both parties. But the court finds

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that there . . . was a disclosure, even though it did not ultimately make it into the

MSA."

Addressing Rule 4:50-1(f), the judge noted that Rule 4:50-2 provides that

such motions should be made within a reasonable time and stated:

[W]hen courts apply the discovery rule . . . it's not when
the plaintiff found out about it, but when . . . the
plaintiff . . . should have known about it. And so even
if we were to run the clock from 2015 when [defendant]
asked for [plaintiff] to execute a waiver . . . it would not
be reasonable for there to be an approximately three-
year delay between making the application . . . .

The judge concluded "this record is . . . sufficient for the court to make a finding

of reasonableness, and thus, there is no need for a . . . plenary hearing."

The judge denied plaintiff's request for counsel fees and also denied

defendant's cross-motion for fees and sanctions. The judge made no specific

findings regarding the fees other than plaintiff's motion lacked merit, but was

not in bad faith and that "it's not clear that both sides don't have the ability to

shoulder their own counsel fees[.]"

We review a decision on a Rule 4:50-1 motion for an abuse of discretion.

US Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). An abuse of

discretion exists "when a decision is 'made without a rational explanation,

inexplicably departed from established policies, or rested on an impermissible

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basis.'" Id. at 467-68 (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123

(2007)). We also review decisions regarding counsel fees for an abuse of

discretion. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001)

(citing Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). However, if a judge

makes a discretionary decision but acts under a misconception of the applicable

law or misapplies the law to the facts, we "need not extend deference." Johnson

v. Johnson, 320 N.J. Super. 371, 378-79 (App. Div. 1999) (citing State v. Steele,

92 N.J. Super. 498, 507 (App. Div. 1966)).

On appeal, plaintiff argues the judge found her motion was not timely, but

did not make adequate factual findings to support the ruling and failed to address

plaintiff's requests for equitable relief. Plaintiff asserts her motion was filed

within a reasonable time given the exceptional circumstances, namely, that she

did not learn the EMPP was a marital asset until November 2018 because it was

not identified in the MSA. She contends there were material disputes of fact

and the motion judge erroneously denied her request for post-judgment

discovery and a plenary hearing. She argues the motion judge denied her request

for counsel fees without properly analyzing all of the Rule 5:3-5(c) factors.

At the outset, we agree the record lacks any evidence warranting relief

under Rule 4:50-1(c) on account of defendant having engaged in "fraud . . . ,

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misrepresentation, or other misconduct" as set forth in the Rule. The record

shows the EMPP was disclosed and that the methods for its possible division

were discussed, yet it was not mentioned in the MSA. Therefore, Rule 4:50-1(f)

and plaintiff's invocation of the court's equitable powers properly framed this

dispute.

Rule 4:50-1 states: "On motion, with briefs, and upon such terms as are

just, the court may relieve a party or the party's legal representative from a final

judgment or order for the following reasons: . . . (f) any other reason justif ying

relief from the operation of the judgment or order." "No categorization can be

made of the situations which would warrant redress under subsection (f). . . .

[T]he very essence of (f) is its capacity for relief in exceptional situations. And

in such exceptional cases its boundaries are as expansive as the need to achieve

equity and justice." DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 269-70 (2009)

(quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)) (alterations in

original). Relief under Rule 4:50-1 "is designed to reconcile the strong interests

in finality of judgments and judicial efficiency with the equitable notion that

courts should have authority to avoid an unjust result in any given case."

Manning Eng'g, Inc. v. Hudson Cnty. Park Comm'n, 74 N.J. 113, 120 (1977)

(citing Hodgson v. Applegate, 31 N.J. 29, 43 (1959)).

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 Our Supreme Court has stated:

Marital property settlement agreements "involve far
more than economic factors" and must serve the strong
public and statutory purpose of ensuring fairness and
equity in the dissolution of marriages. Rothman v.
Rothman, 65 N.J. 219, 229 (1974); see Peterson v.
Peterson, 85 N.J. 638, 644 (1981). Even when a divorce
order incorporates agreements reached privately
between the parties, such orders can be modified "in
light of all the facts" bearing on what is "equitable and
fair." Smith v. Smith, 72 N.J. 350, 360 (1977).

[Conforti v. Guliadis, 128 N.J. 318, 323 (1992).]

We have held "[t]he law grants particular leniency to agreements made in

the domestic arena, and likewise allows judges greater discretion when

interpreting such agreements. See N.J.S.A. 2A:34-23. Such discretion lies in

the principle that although marital agreements are contractual in nature, 'contract

principles have little place in the law of domestic relations.'" Guglielmo v.

Guglielmo, 253 N.J. Super. 531, 541-42 (App. Div. 1992) (citation omitted).

Because of the obligation to assure fairness "interspousal separation agreements,

enforceable only in equity, remain subject 'to the court's power to exercise

continued supervisory control.'" Smith v. Smith, 72 N.J. 350, 358 (1977)

(citation omitted). See also Fattore v. Fattore 458 N.J. Super. 75, 88 (App. Div.

2019) (holding in a similar post-judgment context that spouses owe a duty of

fairness to one another.).

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 The motion judge misapplied the law when he held plaintiff's motion was

barred by the discovery rule. The Supreme Court has stated: "The discovery

rule is essentially a rule of equity . . . develop[ed] as a means of mitigating the

often harsh and unjust results which flow from a rigid and automatic adherence

to a strict rule of law." Lopez v. Swyer, 62 N.J. 267, 273 (1973). By "strict rule

of law" the Lopez Court was referring to the statute of limitations, which was

inapplicable here. Id. at 274. The relief accorded under Rule 4:50-1(f) is limited

only by Rule 4:50-2, which posits the motion be made within a reasonable time.

The motion judge erred by finding, based on this record, that plaintiff

failed to file her motion for review under Rule 4:50-1(f) within a reasonable

time. We cannot discern from the judge's factual findings the significance, if

any, he gave to the fact that: 1) plaintiff was self-represented at the time she

received the waiver form from defendant's counsel over thirteen years after the

divorce; 2) there were several retirement assets equitably distributed in the

MSA; 3) she did not construe the 2003 release of an administrative hold as a

waiver of equitable distribution of the EMPP; and 4) defendant rescinded his

intent to retire. We remand the matter for reconsideration and issuance of a new

decision.

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 In making his decision, the judge should consider: whether plaintiff acted

reasonably in waiting until July 2017 to contact ExxonMobil to inquire whether

the EMPP was a pension plan that was established post-divorce; whether

plaintiff contacted the attorney who represented her in the divorce proceedings

to seek clarification as to the EMPP and, if not, whether she acted reasonably in

failing to do so; when plaintiff retained counsel to address the issue regarding

the EMPP; what steps, if any, did plaintiff take between ExxonMobil's response

to her inquiry in August 2017 and October 2018, when her attorney wrote to

defendant's counsel to ascertain whether she was entitled to a distribution of the

EMPP; and any other issue relevant to whether plaintiff filed her motion within

a reasonable time.

If the judge determines plaintiff filed her motion within a reasonable

amount of time, he should address the question of whether this case presents an

exceptional situation, in which relief from the judgment is necessary to "achieve

equity and justice." DEG, LLC, 198 N.J. at 269-70.

We note that, in denying plaintiff's motion, the judge focused exclusively

on the timeliness of the motion and did not consider whether enforcement of the

judgment would be fair and equitable under the circumstances. On the record

presented, it is evident a hearing was necessary to answer this question. Indeed,

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the parties disputed the following: the value of the EMPP; whether the MSA

addressed the EMPP; and whether plaintiff waived her interest in the EMPP and

received a disproportionate share of the equitable distribution in consideration

for her share of the asset. Resolution of these disputed issues of material fact is

necessary for any determination as to whether relief from the judgment is

warranted. On remand, the motion judge should afford the parties the ability to

submit additional information on the issues to be addressed at the hearing and a

brief period of discovery.

Finally, the transcript reveals the motion judge denied plaintiff counsel

fees because her motion was unsuccessful. Because we have remanded the

equitable distribution issue, the motion judge should also address the counsel

fees requests of the parties as a part of the hearing by analyzing all of the Rule

5:3-5(c) factors.

Affirmed in part and reversed and remanded in part. We do not retain

jurisdiction.

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