                                NOT FOR PUBLICATION WITHOUT THE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-4421-17T1

TERESA PEREZ,
f/k/a TERESA TAPANES,

          Plaintiff-Respondent/
          Cross-Appellant,

v.

JUAN C. TAPANES,

   Defendant-Appellant/
   Cross-Respondent.
———————————————

                    Argued May 8, 2019 - Decided May 23, 2019

                    Before Judges Nugent and Mawla.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Union County, Docket
                    No. FM-20-0610-93.

                    Stuart J. Moskovitz argued                              the      cause         for
                    appellant/cross-respondent.

                    Lindsay A. Heller argued the cause for
                    respondent/cross-appellant (Fox Rothschild LLP,
                    attorneys; Lindsay A. Heller, of counsel and on the
                    briefs; Jessica C. Diamond, on the briefs).
PER CURIAM

      Defendant Juan C. Tapanes appeals from an April 25, 2018 order which

denied the motion he filed under Rule 4:50-2 for review from a Qualified

Domestic Relations Order (QDRO) that divided the marital portion of his

pension. Plaintiff Teresa Perez cross-appeals from the denial of her request for

counsel fees. Finding no abuse of discretion in either decision, we affirm.

      We take the following facts from the record. The parties were married for

sixteen and one-half years at the time of their divorce in 1993. They entered

into a settlement agreement, which among other things, divided defendant's

pension by way of QDRO. The agreement stated:

            The parties acknowledge that an evaluation is presently
            being conducted of defendant's pension and agree that
            plaintiff will be entitled to [fifty percent] of the value
            of defendant's pension from the date of the marriage to
            the date of the filing of the [d]ivorce [c]omplaint in this
            matter. The parties further acknowledge that a lump
            sum payment will not be made to plaintiff in
            accordance with the [r]ules and [r]egulations of the
            [p]ension [p]lan. However, in the event of defendant's
            death or his separation from the [p]ension [p]lan and
            except for defendant's early retirement, defendant is
            entitled to receive a lump sum payment equal to his
            contributions to the [p]ension [p]lan, in which case,
            plaintiff will be entitled to receive her share of the value
            of the pension in accordance with the evaluation
            conducted at the time of the divorce, and not [fifty
            percent] of defendant's contributions.


                                                                           A-4421-17T1
                                         2
      In 2010, defendant retired and began drawing on the pension without

informing plaintiff and without the entry of a QDRO. Defendant later relocated

to Florida. In September 2017, plaintiff contacted and spoke with defendant by

telephone and also emailed him regarding the preparation of a QDRO. A week

after her first email, plaintiff sent defendant another email confirming she had

retained an expert to prepare the QDRO. On September 19, 2017, the expert

sent both parties a draft QDRO. In pertinent part, the QDRO adhered to the

terms of the parties' settlement by allotting plaintiff one-half of the marital

coverture portion of the pension. It also stated plaintiff would receive twenty-

five percent of defendant's portion of the pension benefit to satisfy the arrears

that had accumulated as a result of his receipt of the full pension draw prior to

the QDRO.

      Plaintiff followed up regarding the QDRO with another email to

defendant, but he did not respond. Therefore, she telephoned defendant and left

him a voice message advising she would file a motion for entry of the QDRO.

Defendant did not respond.

      On October 2, 2017, plaintiff filed her motion and served defendant via

first-class mail and certified mail. On October 25, 2018, at the motion judge's

direction, plaintiff served defendant again in a similar fashion. On November


                                                                         A-4421-17T1
                                       3
3, 2017, the motion judge entered an order granting plaintiff's motion to enforce

the parties' settlement agreement and compelling defendant to sign the QDRO.

Specifically, the order memorialized the judge's findings that defendant had

been served with plaintiff's motion and failed to file an opposition. The court

served defendant with its order and plaintiff also emailed him a copy.

      On November 16, 2017, plaintiff served defendant by email and certified

mail with a letter she sent to the motion judge advising that defendant had failed

to comply with the November 3 order. The motion judge entered the QDRO on

November 16. The same day, an attorney corresponded with plaintiff on behalf

of defendant. Notably, counsel's letter stated:

            I know that you did not receive a prompt response to
            your original inquiries, but my client was under the
            impression that all of these issues had been taken care
            of by you or your attorney at or shortly after the time of
            the divorce.

                 The QDRO you sent appears to be appropriate,
            however my client would like to see actual numbers,
            and not just percentages, before he executes the
            [QDRO].

      Defendant retained new counsel who corresponded with plaintiff on

December 1, 2017, and in pertinent part, stated:

            I have had the opportunity to review the [d]ual
            [j]udgment of [d]ivorce, your [n]otice of [m]otion and
            the subsequent [o]rders by [the motion judge]. In

                                                                          A-4421-17T1
                                        4
             reviewing same I believe the issue of arrears and the
             repayment of same needs to be rectified. My goal is to
             avoid having to file any subsequent [m]otion for
             [r]econsideration with the [c]ourt to resolve this
             matter[.]

       In January 2018, the plan administrator corresponded with the parties

confirming the QDRO had been processed, the amount of arrears, and the

parties' respective share of the pension draw. Defendant retained a third attorney

and filed a motion in March 2018, to vacate the QDRO. He claimed the parties'

settlement contained an "anti-Marx"1 formula because the parties did not intend

to divide the marital coverture portion of the pension. Instead, he argued

plaintiff was to receive a lump sum amount equivalent to one-half of defendant's

contributions to the pension plan during the marriage. Defendant also claimed

Hurricane Irma prevented him from responding to plaintiff's motion. Plaintiff

filed a cross-motion for counsel fees.

       A second motion judge heard the motions and denied both. Regarding

defendant's motion, the judge found he had notice of the proceedings by

telephone, email, letter, and voice message, and his claim the hurricane

prevented him from responding to plaintiff's communications and motion was a




1
    Marx v. Marx, 265 N.J. Super. 418 (Ch. Div. 1993).
                                                                          A-4421-17T1
                                         5
"red herring." The judge concluded the parties were in communication after

"Hurricane Irma had already occurred."

      The judge noted neither of the attorneys defendant retained to correspond

with plaintiff raised the hurricane as an impediment to defendant's ability to

respond to the communications and motion regarding the QDRO, or comply with

the court's order to sign the QDRO.           The judge noted the attorneys'

correspondence did not object to the coverture formula, but rather the arrearage

component of the QDRO. Importantly, the motion judge further noted defendant

neither sought reconsideration of nor appealed from either the November 3 order

or the November 16, 2017 QDRO. The judge concluded

            I do not find that [Rule] 4:50-1 is applicable in this
            matter.

                  . . . [H]ere what we're talking about is a party who
            was well aware of the proceedings before [the first
            motion judge]. And for whatever reason decided not to
            avail himself initially of the notice he received and
            come to [c]ourt to challenge what [plaintiff] wanted.

      The judge signed the April 25, 2018 order, denying the motion and cross-

motion, and issued a written supplemental decision with reasons for the counsel

fee denial. This appeal followed.




                                                                         A-4421-17T1
                                        6
                                       I.

           [F]indings by a trial court are binding on appeal when
           supported by adequate, substantial, credible evidence.
           Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). . . .

                  If the trial court's conclusions are supported by
           the evidence, we are inclined to accept them. Id. at 412.
           We do "not disturb the 'factual findings and legal
           conclusions of the trial judge unless . . . convinced that
           they are so manifestly unsupported by or inconsistent
           with the competent, relevant and reasonably credible
           evidence as to offend the interests of justice.'" Ibid.
           (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of
           Am., 65 N.J. 474, 484 (1974)). "Only when the trial
           court's conclusions are so 'clearly mistaken' or 'wide of
           the mark'" should we interfere to "ensure that there is
           not a denial of justice." N.J. Div. of Youth & Family
           Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J.
           Div. of Youth & Family Servs. v. G.L., 191 N.J. 596,
           605 (2007)).

           [Gnall v. Gnall, 222 N.J. 414, 428 (2015).]

     On appeal, defendant repeats the arguments he made to the motion judge,

namely, 1) the QDRO is contrary to the terms of the settlement agreement

because the agreement contained an anti-Marx provision and plaintiff was only

entitled to a lump sum distribution of $3903.21; 2) the first motion judge

unilaterally entered the QDRO without defendant's input, and plaintiff

engineered the result while defendant was unable to respond due to Hurricane




                                                                        A-4421-17T1
                                       7
Irma; and 3) there were grounds to grant his motion under Rule 4:50-1(a), (b),

and (f), and the court made no findings as to why it denied the relief.

      On her cross-appeal, plaintiff asserts the motion judge should have

granted her counsel fees for defending defendant's motion. She asserts the judge

made no findings on the issue of counsel fees, and the supplemental findings

were in response to the cross-appeal and not a valid amplification pursuant to

Rule 2:5-1(b).

                                       II.

      The Supreme Court has stated:

                   A motion under Rule 4:50-1 is addressed to the
            sound discretion of the trial court, which should be
            guided by equitable principles in determining whether
            relief should be granted or denied. The decision
            granting or denying an application to open a judgment
            will be left undisturbed unless it represents a clear
            abuse of discretion.

            [Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283
            (1994) (citations omitted).]

"Courts should use Rule 4:50-1 sparingly, [and] in exceptional situations[.]" Id.

at 289.

      "The kind of mistake contemplated by [Rule 4:50-1(a)] has been described

as one which the parties could not have protected themselves from during the

litigation." Pressler & Verniero, Current N.J. Court Rules, cmt. 5.1.1 on R. 4:50-

                                                                          A-4421-17T1
                                        8
1 (2018); citing DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 263 (2009).

Therefore, "neither the court's nor an attorney's error as to the law or the remedy

constitutes mistake under this section." Pressler & Verniero, cmt. 5.1.1 on R.

4:50-1 (citing Wausau Ins. v. Prudential Prop. Ins., 312 N.J. Super. 516, 518-19

(App. Div. 1998)).

            To obtain relief from a judgment based on newly
            discovered evidence, the party seeking 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." All three
            requirements must be met.          Moreover, "newly
            discovered evidence" does not include an attempt to
            remedy a belated realization of the inaccuracy of an
            adversary's proofs.

            [DEG, LLC, 198 N.J. at 264 (citations omitted).]

And Rule 4:50-1(f) grants relief from a judgment only in "exceptional

situations." Id. at 270 (quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341

(1966)).

      Having considered defendant's arguments, we are convinced the motion

judge did not abuse her discretion. Indeed, defendant never appealed or sought

reconsideration of the QDRO itself or the order compelling him to sign it. The

record demonstrates defendant had proper notice of plaintiff's applications to the

court, knew the court had granted plaintiff's motions, and only then objected to

                                                                           A-4421-17T1
                                        9
the arrears-related aspect of the QDRO—not the issues raised to the second

motion judge or here on appeal. Thus, the record bears no evidence of mistake,

or grounds to grant relief due to newly discovered evidence or exceptional

circumstances.

      Additionally, we are unpersuaded there were grounds for relief from the

QDRO based upon defendant's theory the settlement agreement contained anti -

Marx language. Our Supreme Court recently stated:

            "[A]n agreement that resolves a matrimonial dispute is
            no less a contract than an agreement to resolve a
            business dispute." Quinn v. Quinn, 225 N.J. 34, 45
            (2016) (citations omitted).          According to those
            principles, we must "discern and implement the
            common intention of the parties." Ibid. Therefore, our
            role when interpreting marital settlement agreements is
            to "consider what is 'written in the context of the
            circumstances' at the time of drafting and to apply 'a
            rational meaning in keeping with the expressed general
            purpose.'" Sachau v. Sachau, 206 N.J. 1, 5-6 (2011)
            (quoting Atl. N. Airlines, Inc. v. Schwimmer, 12 N.J.
            293, 302 (1953)). In doing so, "the words of an
            agreement are given their 'ordinary' meaning."
            Flanigan v. Munson, 175 N.J. 597, 606 (2003) (quoting
            Shadow Lake Vill. Condo. Ass'n v. Zampella, 238 N.J.
            Super. 132, 139 (App. Div. 1990)). Therefore, where
            the parties' intent "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, 225 N.J. at 45.

            [Woytas v. Greenwood Tree Experts, Inc., ___ N.J.
            ___, ___ (2019) (slip op. at 12-13).]

                                                                          A-4421-17T1
                                       10
      The QDRO fulfilled the terms of the parties' settlement agreement, whose

plain language required an equitable distribution of the value of the marital

portion of the pension.    The Marx marital coverture formula effectuates a

division of the value of a pension. Panetta v. Panetta, 370 N.J. Super. 486, 494-

95 (App. Div. 2004). The settlement agreement did not eschew a Marx formula.

      Moreover, other than a self-serving certification authored by his former

divorce attorney, defendant provided the motion judge no objective evidence,

valuation, or rationale to support his argument why plaintiff should only receive

$3903.21 as her share of equitable distribution from the asset. The settlement

agreement's mention of a lump sum distribution pertained only to defendant in

the event he died or separated from the plan.       Therefore, notwithstanding

defendant's failure to object to the entry of the QDRO, the record does not

support his tortured interpretation of the settlement agreement regarding the

pension division.

                                      III.

      Finally, "[a]n allowance for counsel fees and costs in a family action is

discretionary." Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004) (citing

R. 4:42-9(a)(1)). Having considered the arguments raised on the cross-appeal,



                                                                         A-4421-17T1
                                      11
we are convinced the decision to deny plaintiff counsel fees was not an abuse of

discretion and affirm for the reasons expressed in the motion judge's decision.

      Affirmed.




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                                      12
