Linek v. Korbeil

755 A.2d 1229, 333 N.J. Super. 464
CourtNew Jersey Superior Court Appellate Division
DecidedAugust 3, 2000
StatusPublished
Cited by16 cases

This text of 755 A.2d 1229 (Linek v. Korbeil) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Linek v. Korbeil, 755 A.2d 1229, 333 N.J. Super. 464 (N.J. Ct. App. 2000).

Opinion

755 A.2d 1229 (2000)
333 N.J. Super. 464

Patricia LINEK, Plaintiff-Respondent,
v.
John KORBEIL, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued January 12, 2000.
Decided August 3, 2000.

*1230 Jeffrey D. Curzi, Clinton, argued the cause for defendant-appellant (Morrow & Curzi, attorneys; Sieglinde K. Rath, on the brief).

Benjamin Luke Serra, Somerville, argued the cause for plaintiff-respondent.

Before Judges STERN, KESTIN and STEINBERG.

The opinion of the court was delivered by KESTIN, J.A.D.

Defendant appeals from the trial court's order clarifying and modifying the provision in the parties' 1981 judgment of divorce which purported to distribute defendant's pension equitably. We affirm.

Judge O'Donnell, who tried the contested issues at the time of the divorce, including those relating to equitable distribution, expressed his findings and conclusions in letter opinions dated May 4 and May 26, 1981. In making his equitable distribution determination regarding the pension, the judge expressly relied on Kikkert v. Kikkert, 177 N.J.Super. 471, 427 A.2d 76 (App. Div.), aff'd, 88 N.J. 4, 438 A.2d 317 (1981), and determined that that asset of the sixteen-year marriage should be distributed equally. After applying the coverture fraction, the judge calculated the marital value of the pension at the time the complaint was filed at $433.63 per month and, assuming defendant's retirement at age sixty-five, the judge made the following award in the June 30, 1981 judgment of divorce:

[U]pon defendant attaining the age of 65 years, plaintiff shall be awarded one-half of defendant's pension, at its value on August 1, 1979 in the amount of $433.63, or $216.82 per month[.]

In 1987, after qualified domestic relations orders (QDROs) were authorized by federal statute, a consent order was entered to satisfy the requirements of the pension administrator. The order provided, inter alia, that plaintiff was:

to begin receiving payments in the amount of $216.62 [sic] per month at the time the participant [defendant] reaches the age of 65 years....

Defendant, however, retired on January 14, 1996, at the age of fifty-six and began collecting his pension. By letter dated February 8, 1996, the pension administrator advised plaintiff of that fact and proposed to begin immediate payment to her of the dollar share fixed in the QDRO, $216.62 per month. On February 26, the pension administrator's position had changed to one of strict compliance with the terms of the order:

[Y]ou will commence your portion of the pension benefit payment of $216.62 ... when Mr. John Korbeil reaches age 65.
After commencement, your pension payments will be made over Mr. Korbeil's lifetime. If Mr. Korbeil predeceases you before you commence your benefit, no payments will be made to you.

In September 1996, plaintiff filed a post-judgment motion seeking immediate payment of her share of defendant's pension and requiring defendant to pay plaintiff arrears that had accrued since defendant started receiving the pension. Defendant opposed the motion, claiming that, because he had retired early, plaintiff was not entitled to the full amount set forth in the judgment of divorce.

On October 21, 1996, Judge Herr ordered the parties to "retain an actuary to calculate the marital value of Defendant's AT & T pension pursuant to the Final Judgment of Divorce dated June 30, 1981, and the amount that would be distributed to plaintiff if one-half that value were paid *1231 to her monthly beginning on January 13, 1996, defendant's retirement date."

In December 1997, plaintiff filed another motion seeking arrears and an order compelling payment of $216.41 [sic] per month from defendant's pension. Defendant presented the court with a report from actuary Otis Ray, which said plaintiff was entitled to a monthly pension of $93.23. However, the Ray calculation was made on the erroneous assumption that the payment at issue was on a deferred vested pension and not a service pension.

Judge Bernhard recognized this error when he ruled in a January 23, 1998 proceeding: "[T]here's no question that Mr. Ray's computations are in error ... they don't deal with the computation of [this] service pension and he gives you several indications that his computations don't apply if we're talking about a service pension[.]" Judge Bernhard denied plaintiff's motion without prejudice, however, on the basis that "no one has really complied with... the order of the 21st of October 1996[,]" and because the information which had been supplied by both parties was not sufficient upon which to base a decision.

In May 1998, plaintiff again filed a motion seeking monthly payment of her share of the pension, arrears and counsel fees. Defendant filed a cross-motion seeking denial of plaintiff's motion, imposition of monetary sanctions against plaintiff and her attorney for "intentionally violating" Judge Herr's October 21, 1996 order, and an award of counsel fees. Defendant presented another actuary's report, from Charles Stipelman, which found that "the value of [the interest provided in the judgment of divorce as of August 1, 1979] adjusted to the earlier payment commencement date" for defendant came to $115.71 per month for plaintiff. Judge Bernhard reviewed Stipelman's report and stated as part of his June 19, 1998 oral disposition:

Plaintiff continues to erroneously assert that her share of defendant's pension at the present time is $216.82 despite the fact that defendant retired at 56 years, three months and not 65. The $216.82 is the appropriate pension benefit she is entitled to receive when the defendant reaches 65 years of age. If she were entitled to receive a portion of defendant's present pension as retirement date of January 13, 1996, it would not be $216.82 as the actuarial fund would not have received an amount to pay that sum. The appropriate sum, if the plaintiff was to receive benefits based upon defendant's retirement at age 56 years, three months is $115.71.... Thus, the plaintiff's application for the defendant to make payments [is] misplaced. Therefore, the relief she request[s] is inappropriate and is denied. This Court assumes that the next application will be payment for a sum of money from defendant's actual retirement date of January 13th, 1996. Plaintiff ... would be entitled to receive her share of the pension benefit either when he reaches 65 or some earlier date. In other words, the question I cannot answer, will AT & T pay plaintiff $115.71 now and into the future? That's not a question before me.

The judge recognized, however, that "she's probably entitled to something more than $115 if it starts now as opposed to the date of retirement," and he told the parties, "[t]hat's a determination you have to get from AT & T." The judge entered an order on the same day denying all relief requested by both parties.

Plaintiff's appeal from that order was eventually dismissed, after a Civil Appeals Settlement Program conference, in an order noting that the matter had been settled. Judge Herr in her later bench opinion determined that plaintiff had "voluntarily[ ] dismissed her appeal with the understanding that the trial court should properly address the pension issue" based upon a new actuarial analysis from William Troyan, Inc. prepared at plaintiff's behest, as well as the Stipelman report.

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Bluebook (online)
755 A.2d 1229, 333 N.J. Super. 464, Counsel Stack Legal Research, https://law.counselstack.com/opinion/linek-v-korbeil-njsuperctappdiv-2000.