                        NOT FOR PUBLICATION WITHOUT THE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-2097-15T2




MANUEL LIM,

        Plaintiff-Appellant,

v.

ROSEMARIE LIM,

        Defendant-Respondent.

_______________________________


              Submitted March 28, 2017 – Decided May 11, 2017

              Before Judges Fasciale and Sapp-Peterson.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Essex County,
              Docket No. FM-07-163-12.

              Charles P. Cohen, attorney for appellant.

              Paula L. Crane, attorney for respondent.


PER CURIAM

        This is an appeal of two post-judgment orders issued by the

Family Part.       The first is the November 6, 2015 order, which among
other     relief   granted   to    defendant     Rosemarie   Lim,    directed

plaintiff,     Manuel    Lim,     to   provide   documents     necessary      to

effectuate a Qualified Domestic Relations Order (QDRO) and denied

plaintiff's cross-motion for a plenary hearing.          The second order,

entered     January     8,   2016,     denied    plaintiff's    motion      for

reconsideration, amended the May 27, 2015 Amended Final Judgment

of Divorce (AFJOD), awarded counsel fees to defendant and denied

his application for a stay of the order.           We affirm both orders.

                                       I.

     The parties were married in 1993.           Two children, who are not

the subject of this appeal, were born of the union.                 Subsequent

to their marriage, plaintiff secured employment with Burns and

Roe, where he remained employed until his termination in June

2014.     As part of his compensation package, plaintiff maintained

a retirement savings account with Burns and Roe.

     On July 18, 2011, plaintiff filed for divorce.                  Upon the

completion of discovery, trial commenced and on October 8, 2014,

the parties reached a settlement on the issues of child support,

alimony, and equitable distribution, which defendant's counsel

placed on the record.           The provisions relevant to this appeal

concern distribution of the Burns and Roe retirement account:

            As to the retirement accounts. First of all,
            the husband has a Burns and Roe retirement


                                       2                               A-2097-15T2
          savings account, with an approximate value of
          $222,000 as of the date of complaint.

          That is a marital asset – asset completely.
          There – all – we're gonna [sic] – talking about
          QDROs – all the QDROs are going to be prepared
          . . . at joint expense. This particular – Burns
          and Roe retirement savings, from the date of
          the marriage – all of it is required after the
          date – from date of marriage to date of
          complaint and all investment experience is
          going to be divided 50/50 between the parties.

Plaintiff's counsel did not raise any objection.

     The court directed the parties to submit a signed agreement

and an AFJOD in approximately three weeks.    Notwithstanding this

directive, the proposed AFJOD was not submitted to the court until

several months later.   During those months, plaintiff objected to

the exclusion from equitable distribution of another retirement

fund held in defendant's name.

     The proposed AFJOD was submitted under the five-day rule,

Rule 4:42-1(c).    Defendant filed no formal     objection to the

proposed AFJOD and the court entered the AFJOD, as proposed, on

May 27, 2015.   Paragraph 25 of the AFJOD states:

          As to the retirement accounts, the plaintiff
          has a Burns and Roe retirement savings account
          with an approximate value of $222,000 as of
          the date of Complaint. This is a marital asset
          and all Domestic Relations Orders are going
          to be prepared at joint expense. All of it is
          acquired from the date of marriage to date of
          complaint and all investment experience is
          going to be divided 50% to the plaintiff and
          50% to the defendant.

                                 3                          A-2097-15T2
     In July 2015, plaintiff's counsel received a letter, dated

July 20, 2015, from Rosemary Weiss, a (QDRO) consultant for Troyan,

Inc. (Troyan), the pension expert the parties jointly selected.

The letter indicated that plaintiff's Burns and Roe savings plan

was terminated on June 27, 2014.

     In response, plaintiff's counsel advised Troyan that the

Burns and Roe account had been rolled over directly into an

individual retirement account with Vanguard and attached a copy

of the most recent Vanguard statement, which reported a balance

in the account, as of June 30, 2015, in the amount of $353,775.50.

This amount reflected a growth in the account of approximately

$131,775.20, since July 18, 2011, the date the complaint was filed

and also the date the parties agreed was the end date of the

coverture period for purposes of equitable distribution.

     On August 11, 2015, Troyan advised the parties that in order

to determine defendant's share of the former Burns and Roe account,

it required confirmation of plaintiff's termination date from

Burns and Roe, as well as a "copy of each statement from the

Savings Plan from July 18, 2011 to the date of transfer[.]"

Plaintiff failed to provide this information, which resulted in a

motion by defendant seeking an order directing plaintiff to provide

the requested information.


                                 4                          A-2097-15T2
     Plaintiff responded to the motion by filing a cross-motion

seeking in relevant part, the denial of defendant's motion and a

determination that the sum of $222,000 was the total amount to be

distributed   between   the    parties.      Plaintiff   argued   that   any

investment experience earned subsequent to the date he filed the

divorce complaint should not be included in any distribution to

defendant.     Plaintiff      additionally    claimed    that   defendant's

counsel incorrectly stated the terms of the settlement when she

placed the settlement on the record on October 8, 2014, and that

he never agreed to divide the investment experience on a 50/50

basis.   Plaintiff also requested a plenary hearing to address the

"distribution of pensions and/or retirement accounts."

     The court conducted oral argument on November 6, 2015, and

rendered an oral decision on that same date.              In reaching its

decision regarding distribution of the Burns and Roe account, the

court stated that the distribution amount is "always whatever it

is at the time of distribution and if there [are] increases or

decreases due to market changes, due to passive changes, then the

parties share that."    In the order memorializing its decision also

entered on November 6, 2015, the court stated:

           Plaintiff is not entitled to the investment
           experience that has accumulated on defendant's
           share of the account just as defendant is not
           entitled to the investment experience that has
           accumulated on plaintiff's share of the

                                     5                              A-2097-15T2
           account. Troyan, Inc. shall determine the
           amount of investment experience to attribute
           to defendant's coverture share that has
           accumulated since that date.

The court denied plaintiff's request for a plenary hearing.

       Plaintiff moved for reconsideration once again requesting a

plenary hearing or, alternatively, seeking an order directing him

to pay directly to defendant $111,000, "in order to fully and

finally resolve this divorce litigation, without the need for a

new or [another] amended Judgment of Divorce as required by

Troyan's November 18, 2015 correspondence."    The court conducted

oral argument on the motion on January 18, 2016, and following

oral argument denied plaintiff's motion.

       In denying the motion, the court characterized the relief

sought by plaintiff as "simply plaintiff's attempt at a fourth

bite at the 'proverbial apple.'"     The court specifically found

that

           [t]he November 18, 2015 letter from Troyan
           indicates that plaintiff made no contributions
           to the IRA between the cut-off date of July
           18, 2011 and September 2015. The principle
           funds in this account were deposited solely
           during the coverture period, meaning that the
           entire    account,    including     investment
           experience shall be shared on a 50/50 basis
           pursuant to the parties' agreement.

       The court highlighted that the Burns and Roe account, as of

the date of the hearing on the reconsideration motion, had still


                                 6                          A-2097-15T2
not been divided.    Consequently, the court reasoned that "each

parties' $111,000 share has been accruing investment experience

while both shares are still in one account in plaintiff's name."

The court concluded that defendant was therefore entitled to the

investment experience earned on her share while it was being held

in plaintiff's account.     The court explained, "[i]f defendant's

share had been earning investment experience in an account separate

from plaintiff's share, plaintiff would not have a claim to that

investment   experience.   Plaintiff     cannot   reap   the   rewards    of

defendant's share being invested in his name."

     Addressing plaintiff's argument that Troyan's requirement for

an AFJOD was proof that the settlement terms placed on the record

on October 8, 2014, had changed, the court found the only thing

that had changed was the name associated with the Burns and Roe

account and that this name change was the basis for Troyan's

request for an amended judgment.       The court further explained that

it was the same account, with the same funds, which had simply

been rolled over to create a new account, now under the control

of Vanguard rather than Burns and Roe.        The court concluded that

Troyan could not effectuate a QDRO on an account that no longer

existed and it was this fact, which prompted the need for a further

amendment of the AFJOD.    The present appeal followed.



                                   7                               A-2097-15T2
       On appeal, plaintiff contends the parties' submissions in

support of their motion and cross-motions returnable November 6,

2015, raised genuinely disputed issues that could only be resolved

in a plenary hearing and, therefore, the trial court erred when

it refused to conduct a plenary hearing to ascertain the parties'

intent when they entered into the settlement agreement concerning

the pension distribution of the Burns and Roe account.             Plaintiff

also urges this panel to exercise original jurisdiction and order

distribution of all pensions/retirement funds during the period

of coverture.

                                       II.

       We commence our analysis by highlighting our Supreme Court's

most   recent   iteration   of   the       import   of   marital   settlement

agreements:

                 Settlement    of   disputes,    including
            matrimonial disputes, is encouraged and highly
            valued in our system. "'strong public policy
            favoring   stability   of   arrangements'   in
            matrimonial matters." (quoting Smith v. Smith,
            72 N.J. 350, 360 (1977)).      This Court has
            observed that it is 'shortsighted and unwise
            for courts to reject out of hand consensual
            solutions to vexatious personal matrimonial
            problems that have been advanced by the
            parties themselves.' Ibid. (quoting Petersen
            v. Petersen, 85 N.J. 638, 645 (1981)).
            Therefore, 'fair and definitive arrangements
            arrived at by mutual consent should not be
            unnecessarily or lightly disturbed.' Id. at
            193-94 (quoting Smith, supra, 72 N.J. at 358.)
            Moreover, a court should not rewrite a

                                       8                              A-2097-15T2
            contract or grant a better deal than that for
            which   the  parties   expressly   bargained.
            Solondz v. Kornmehl, 317 N.J. Super. 16, 21-
            22, (App. Div. 1998).

                 A settlement agreement is governed by
            basic contract principles. J.B. v. W.B., 215
            N.J. 305, 326, (2013) (citing Pacifico v.
            Pacifico, 190 N.J. 258, 265 (2007)). Among
            those principles are that courts should
            discern and implement the intentions of the
            parties. Pacifico, supra, 190 N.J. at 266
            (citing Tessmar v. Grosner, 23 N.J. 193, 201
            (1957)). It is not the function of the court
            to rewrite or revise an agreement when the
            intent of the parties is clear. J.B., supra,
            215 N.J. at 326, 73 (citing Miller v. Miller,
            160   N.J.   408,   419   (1999)).      Stated
            differently, the parties cannot expect a court
            to present to them a contract better than or
            different from the agreement they struck
            between themselves. Kampf v. Franklin Life
            Ins. Co., 33 N.J. 36, 43. (1960) (citations
            omitted).    Thus, when 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.

            [Quinn v. Quinn, 225 N.J. 34, 44-45 (2016).]

     Guided by these principles, we note that "[a]pplications for

relief    from   equitable      distribution   provisions   contained   in   a

judgment of divorce and property settlement agreements are subject

to [Rule 4:50-1] and not, as in the case of alimony, support,

custody, and other matters of continuing jurisdiction of the court,

subject    to    a   'changed    circumstances'    standard."   Pressler     &

Verniero, Current N.J. Court Rules, comment 6.1 on R. 4:50-1 (2017)


                                       9                            A-2097-15T2
(citing Miller v. Miller, 160 N.J. 408, 418 (1999)); see also

Harrington v. Harrington, 281 N.J. Super. 39, 48 (App. Div.),

certif. denied, 142 N.J. 455 (1995).

     Rule 4:50-1 (Rule) provides that relief may be obtained

               from a final judgment or order for the
          following reasons: (a) mistake, inadvertence,
          surprise, or excusable neglect; (b) newly
          discovered evidence which would probably alter
          the judgment or order and which by due
          diligence could not have been discovered in
          time to move for a new trial under R. 4:49;
          (c) fraud (whether heretofore denominated
          intrinsic or extrinsic), misrepresentation,
          or other misconduct of an adverse party; (d)
          the judgment or order is void; (e) the
          judgment or order has been satisfied, released
          or discharged, or a prior judgment or order
          upon which it is based has been reversed or
          otherwise vacated, or it is no longer
          equitable that the judgment or order should
          have prospective application; or (f) any other
          reason justifying relief from the operation
          of the judgment or order.

     In order to obtain relief under the Rule the party seeking

such relief is required to present proof "of exceptional and

compelling circumstances" justifying the relief sought because the

Rule is "[d]esigned to balance the interests of finality of

judgments and judicial efficiency against the interest of equity

and fairness."   Harrington, supra, 281 N.J. Super. at 48 (citing

Baumann v. Marinaro, 95 N.J. 380, 392 (1984)).    "[T]o establish

the right to such relief, it must be shown that enforcement of the

order or judgment would be unjust, oppressive or inequitable."

                               10                          A-2097-15T2
Ibid.    (citations omitted).       Relief under this Rule is granted

sparingly and a party is entitled to a hearing on the application

only upon a showing that there exists genuinely disputed issues

of material fact supporting the relief sought.                  Barrie v. Barrie,

154 N.J. Super. 301, 303-04 (App. Div. 1977), certif. denied, 75

N.J. 601 (1978).

      Moreover, not every factual dispute on a motion requires a

plenary hearing.      A plenary hearing is only necessary to resolve

genuine issues of material fact in dispute.                Eaton v. Grau, 368

N.J. Super. 215, 222 (App. Div. 2004); Harrington, supra, 281 N.J.

Super. at 47; Adler v. Adler, 229 N.J. Super. 496, 500 (App. Div.

1988).    Genuinely    disputed     issues     of   fact    are     those    having

substance as opposed to insignificance.             Cokus v. Bristol Myers

Squibb Co., 362 N.J. Super. 366, 370 (Law Div. 2002), aff'd o.b.,

362 N.J. Super. 245, certif. denied, 178 N.J. 32 (2003).                    A trial

judge's decision whether to allow or deny such relief on one of

the six specified grounds in the Rule should be "left undisturbed

unless it results from a clear abuse of discretion." Pressler &

Verniero, supra, comment 1 on R. 4:50-1 (citing U.S. Bank Nat'l

Ass'n v. Guillaume, 209 N.J. 449, 467 (2012)).

      Here,   there   is   absolutely     no    proof      of    mistake,     newly

discovered evidence, fraud, overreaching, unconscionability, or

any   other   enumerated   ground    to   warrant       modification        of   the

                                    11                                      A-2097-15T2
equitable distribution provisions of the AFJOD.        On the contrary,

at the time the settlement regarding the Burns and Roe retirement

provision was placed on the record and eventually incorporated

into the Amended Final Judgment of Divorce, both parties were

represented by counsel. Neither party raised any objection to this

specific provision, either on the day the settlement was placed

on the record, prior to the issuance of the AFJOD, or during the

five-day period the proposed AFJOD had been submitted to the court

pursuant to Rule 4:42-1(c).      Indeed, under Rule 4:42-1(c), the

court, in its discretion could have listed the matter for a hearing

had an objection to the proposed judgment been raised by plaintiff

at that time.

     The   record   further   reveals   that   prior   to   placing   the

settlement on the record, the court cautioned both parties:

           I want you to listen carefully as counsel
           places the settlement on the record. You're
           going to be questioned as to whether you
           understand it, whether you agree to all the
           terms, OK? This is a settlement. Once you
           acknowledge that you understand it and you
           agree to it, there's no going back, OK? So, I
           just want to be clear that – [because] it seems
           like every time we make one step forward we
           take five steps back.

After defendant's counsel placed the terms of the settlement on

the record, the court questioned both parties regarding their




                                  12                             A-2097-15T2
understanding of the agreement and willingness to be bound by the

terms articulated on the record.

    The following colloquy occurred, first between plaintiff and

his attorney, then between plaintiff and the court, and finally

between plaintiff and defendant's counsel:

          MR. COHEN:     Plaintiff, you heard the terms
          of the settlement as they were placed on the
          record just now, by Ms. Crane. This settlement
          was based upon compromises that were made over
          the past several days, and possibly even
          earlier. Do you understand the terms of the
          agreement?

          PLAINTIFF:     Yes, I do.

          MR. COHEN:     Under      all    of  the
          circumstances, do you find same to be
          reasonable and fair in order to end this
          divorce litigation on this date?

          PLAINTIFF:     I don’t think it's fair, but
          I'll agree to it.

          THE COURT:     Well,    in   the   spirit   of
          compromise and negotiation, recognizing you
          didn’t get everything you wanted, she didn’t
          get   everything    she    wanted,   but   you
          compromised, you met in the middle or -- or
          part way in so that you could resolve this,
          and you wouldn’t have to go through the
          expense and the stress of a trial. Under those
          circumstances, do you think it’s fair and
          reasonable?

          PLAINTIFF:     Yes.

          . . . .




                                13                         A-2097-15T2
          THE COURT:     Anybody force or make you sign
          it -- well, anybody make -- force or make you
          enter into this agreement against your will?

          PLAINTIFF:     No.

          THE COURT:     Okay.   Anybody  promise   you
          anything other than what’s been placed on the
          record today?

          PLAINTIFF:     No.

          THE COURT:     Have you had enough time to
          review this agreement and discuss it with your
          attorney?

          PLAINTIFF:     Yes.

          . . . .

          MS. CRANE:     Plaintiff, you understand that
          you can’t come back and say, oh, I forgot this
          and you didn’t handle this and we didn’t do
          that –

          PLAINTIFF:     I agree.

          MS. CRANE:     -- this is the -- what I placed
          on the record is the entire agreement. All
          other claims or charges are waived.

          PLAINTIFF:     Right.

    Additionally, it is undisputed that the Burns and Roe account

was acquired during the marriage and therefore deemed a marital

asset.   As the court noted in the statement of reasons:

               . . . the account was not divided at [the
          time the divorce complaint was filed] and
          still has not been divided. Thus each parties'
          $111,000 share has been accruing investment
          experience while both shares are still in one
          account in plaintiff's name. Defendant is

                                14                         A-2097-15T2
          entitled to the investment experience earned
          on her share while it is being held in
          plaintiff's account. If defendant's share had
          been earning investment experience in an
          account separate from plaintiff's share,
          plaintiff would not have a claim to that
          investment experience. Plaintiff cannot reap
          the rewards of defendant's share being
          invested in his name.

     Moreover, as highlighted by the court during the January 8,

2016 hearing, the Burns and Roe account was described on October

8, 2014, as having an "approximate value of $222,000,"           because

at the time of the settlement was placed on the record, plaintiff

had yet to provide any documentation associated with the account,

notwithstanding that the parties were in trial.

     Turning to plaintiff's claim of newly discovered evidence,

the court properly found that Troyan's requirement for a new

Amended Judgment of Divorce was not, as plaintiff urged, proof

that the settlement terms had changed. Rather, the court correctly

found that once Troyan discovered that plaintiff's Burns and Roe

account had been terminated and rolled over into Vanguard, the

judgment needed to be amended to reflect the account's new name.

Thus, while the name associated with the funds changed, the terms

of the settlement remained consistent. Therefore, plaintiff's

claim of newly discovered evidence lacks merit.

     However,   assuming   plaintiff's   claim   of   newly   discovered

evidence as a basis for relief from judgment had any facial merit,

                                 15                              A-2097-15T2
in order to obtain such relief, the party seeking the 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."    Quick Chek Food Stores v. Twp. of Springfield, 83

N.J. 438, 445 (1980) (citing State v. Speare, 86 N.J. Super. 565,

581-82 (App. Div.), certif. denied, 45 N.J. 589 (1965)).            All

three requirements must be met. See ibid.      Here, this information

was   only   "new"    because   plaintiff   failed   to   produce   any

documentation regarding the Burns and Roe account, or at the very

least notify defendant that the account had been rolled over into

a different IRA.     Plaintiff failed to do so prior to trial, while

the settlement was being placed on the record during the trial or

after the trial.

      To summarize, substantial, credible, and undisputed evidence

in the record demonstrates that plaintiff's amended cross-motion

failed to meet the standards for relief from judgment under the

Rule. Moreover, the record demonstrates plaintiff's understanding

of the terms of the settlement and his knowing and voluntary assent

to its terms.   Under such circumstances, a plenary hearing was not

necessary to ascertain the intent of the parties.         In short, we

discern no basis on this record from which we may conclude the



                                  16                           A-2097-15T2
court abused its discretion in denying the relief sought by

plaintiff.

                                          III.

       Finally, plaintiff contends the court improperly awarded

attorney's fees to defendant after it denied his cross-motion.

The court awarded defendant $2,527.50 in counsel fees, which

included    the     court's   consideration      of   defense   counsel's    time

expended in preparing and addressing the motions as well as the

oral arguments conducted on the two post-judgment motions.

       We review a trial court's award of fees again under an abuse

of discretion standard, Yueh v. Yueh, 329 N.J. Super. 447, 466

(App. Div. 2000) (citation omitted), and such an award will be

disturbed "only on the 'rarest occasion[.]'" Strahan v. Strahan,

402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine v.

Pantzer, 141 N.J. 292, 317 (1995)).               In Yueh, supra, the court

held      conduct     that     increases      litigation        costs   through

recalcitrance, defiance of court orders or misrepresentation will

support an award of attorney's fees. 329 N.J. Super. at 459-60.

       Here, while the court failed to express its findings in the

January 8, 2016 Statement of Reasons appended to its order, the

record clearly and convincingly demonstrates that the counsel fee

awarded    to     defendant   was   the    direct     result    of   plaintiff's

noncompliance with previously entered orders.

                                      17                                 A-2097-15T2
       Plaintiff failed to notify defendant or the court that as of

June 27, 2014, his Burns and Roe account no longer existed under

that name. In fact, on the day the settlement agreement was placed

on    the    record,    the   account   had     not   been    in    existence   for

approximately two months.         Yet, plaintiff allowed the settlement

to be placed on the record with specific reference to the account

in detailing the terms of the settlement, without alerting the

court that the account no longer existed.

       After the settlement was placed on the record and knowing

that a pension expert would be preparing a QDRO, plaintiff still

failed to apprise defendant, defendant's attorney or Troyan of the

termination of the Burns and Roe account and its direct rollover

into the Vanguard account.         Once Troyan discovered that the Burns

and    Roe    account    no   longer    existed,      it     requested    specific

documentation and information about the status of the funds.

Plaintiff failed to respond to this request.                       This ultimately

generated significant additional work not only for defendant's

counsel, but also for Troyan.                The court noted in its November

6, 2015 order, that plaintiff had yet to provide the documents

required by Troyan.

       Irrespective of the merits of plaintiff's claims in his cross-

motion, the pension expert was going to need all of the requested

documentation.         Thus, no reasonable argument could have been

                                        18                                 A-2097-15T2
advanced justifying plaintiff's ongoing failure to provide the

requisite documents to Troyan.    Consequently, the award of counsel

fees here was not so wide of the mark that we can conclude the

court mistakenly exercised its discretion in rendering the award.

     Finally, given our conclusion that the court properly denied

plaintiff's request for a relief from judgment and for a plenary

hearing, there is no basis for this court to consider plaintiff's

final argument that we exercise original jurisdiction to resolve

the pension distribution issue.

     Affirmed.




                                 19                          A-2097-15T2
