NOT FOR PUBLICATION WITHOUT THE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;
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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."
9 A-0940-14T3
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
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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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