                        NOT FOR PUBLICATION WITHOUT THE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
