SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 0224

- 17T1 JOANNE K. SNYDER, Plaintiff

- Appellant,

v. HOWARD I. SNYDER,
Defendant

- Respondent.

________________________________

Argued August 8, 2018

– Decided August 24 , 2018 Before Judges Hoffman and Currier. On appeal from Superior Court of New Jersey , Chancery Division, Family Part, Burlington County, Docket No. FM - 03

- 1076

- 11. Ronald G. Lieberman argued the cause fo r appellant (Cooper Levenson, PA , attorneys; Ronald G. Lieberman, on the briefs). Jonathan Stone argued the cause for respondent.

PER CURIAM In this matrimonial action, plaintiff Joanne K. Snyder appeals from the provisions of the August 4, 2017 order compelling her to execute a Qualified Domestic Relation Order (QDRO) for the NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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

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division of her ex

- husband's pension. After a review of the

content ions in light of the record and applicable principles of law, we affirm. After thirty years of marriage, the parties were divorced in
June 2011. A Final Judgment of Divorce incorporated the parties' Property Settlement Agreement (PSA). Defendant Howard I. Snyder had a pension in pay status at the time of the divorce from which
he was receiving established payments. This pension is the subject of this appeal. Paragraph 3.5 of the PSA addressed the parties' retirement accounts and pension plans. Specific ally as to defendant's pension in pay status, it stated:

Wife shall be entitled to $2800 .00 a month from Hus b and's Pension with the remaining monthly payout being the sole property of the Husband. Wife will rem a in on the bank account where the funds from t he Pension are currently deposited until such time as a [ QDRO ] can be dra f ted and the . . . Pension [is] divided as per the abo v e speci f ications. Until such time as a QDRO is completed, w ife may withdraw $2800 .00 a month from the bank account that receives the monthly Pension payments. Paragraph 4.4, entitled "Income Tax Effect , " provided: "All of the foraging(sic) transactions as set forth in Article III , ( Equitable D istribution) , are intended to be tax

- free ev ents. " It
furt h er sta t ed that any financial events required under Article 63 A - 0224

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of the PSA were " intended to be non

- ta x able events under the
Internal Revenue Code 1041." For more than five years after the divorce, as per the PSA, plaintiff withdrew $2800 a m onth f r om the joint bank account as her share of defenda n t's p ension. During this time period defendant paid the tax liability for the entire distribution. In February 2016 , defendant self

- prepared a QDRO and presented it to the pension plan administrato r. Plaintiff's counsel objected to the form of the QDRO , the plan administrator took no action , and plaintiff continued to withdraw $2800 tax

- free from the bank

account.
In June 2017 , defendant filed a motion , in pertinent part , compelling plaintiff to ex ecute the QDRO. Plaintiff's cross motion asserted she was entitled to receive $2800 net of taxes
under the PSA , and judicial estoppel prevented defendant from requiring her to pay taxes on her share of the distribution, which
would result in a downward modification of her net monies. Following extensive oral argument, the Family Part judge issued an oral decision on August 4, 2017 , memorialized in an
order under the same date. In applying the plain language of the PSA, t he judge noted that Paragraph 3.5 did not address the "tax consequences of distributions received by the Wife from Husband's pension. " Although he acknowledg ed the statement in Paragraph 4.44 A - 0224

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that the p a rties intended transactions in Article III to be non

taxable events under Internal Rev enue Code (IRC) 1041 , the judge advised that Section 1041 did not app l y to the tax conseque n ces of pension distributions made pur s uant to a Q DRO. A pension distribution was governed by Section s 402(e)(1) (A) and 72 of the

IRC , which provid ed that a spouse o r former spouse of a par t icipan t who receives a distribution or payment under a QDRO is an "alternate payee , " and must pay federal income tax on the distribution or pay m e nt . Concluding that there was "no explicit provision" in the parties ' PSA that contradicted the pertinent sections of the tax code, the judge resol v ed that , going forward, plain t iff was required to pay federal income tax on her sh a re of defen dan t's pension ; the $2800 was deemed a gross figure subject to tax obligations unde r the QDRO . Defendant's motion was granted and

p lain t iff was ordered to execute the QDRO. On appeal, plaintiff argues that the parties' course of conduct for five years evidenced an intent that plaintiff was to receive a distribution of $2800 per month from defendant's pension net of taxes, and that the judge erred in not ordering a plenary hearing. Plaintiff also argues , for the first time , t h a t she should not have to pay taxes on her share of the pension distribution despite the existence of tax law t o the contrary.5 A - 0224

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Our standard of review requires us to give considerable deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly , 405 N.J. Super. 117, 127 (App. Div. 2009) ( citing Larbig v. Larbig , 384 N.J. Super. 17, 21 (App. Div. 2006)). That is so "[b]ecause of the family courts' special jurisdiction and expertise in family matters . " Cesare v. Cesare , 154 N.J. 394, 413 (1998). Unlike a trial judge's fact and cred ibility findings, the judge's " interpretation o f the law and the legal consequences that flow from established facts are not ent itled to any special
deference. " Crespo v. Crespo , 395 N.J. Super. 190, 194 (App. Div. 2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan , 140 N.J. 366, 378, (1 995)). Consistent with New Jersey's " ' strong public policy favoring stability of arrangements ' in matrimonial matt ers," where matters in dispute in a post

- judgment matrimonial motion are addressed in a PSA, courts will not "unnecessarily or lightly distu rb[]" the agreement so long as it is fair and equitable. Quinn v. Quinn , 225 N.J. 34 , 44 (2016) (quoting Konzelman v. Konzelman , 158 N.J. 185, 193

- 94 (1999) ) ; see also Pacifico v. Pacifico , 190 N.J. 258, 266 (2007) (a matrimonial agreement i s enforceable so long as it is not inequitable) ; Dolce v. Dolce , 383 N.J. Super. 11 , 20 (App. Div. 2006) (quoting Petersen v. Petersen , 85 N.J. 638, 642 (1981)) (PSAs are entitled to "'considerable weight with respect to their6 A - 0224

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validity and enforceability' i n equity, provided th ey are fair and just " ) . Plaintiff asserts that she has relied on receiving $2800 gross as her share of defe n d a nt's pension for more than seven years and , therefore , the doctrine of laches requires th e perpetuation of this arrangement. We disagree. As the judge stated, the PSA permitted plaintiff to withdraw $2800 monthly from a joint bank account. This arrangement was to continue until a QDRO was executed to divide the pension monies. Although p aragraph 3.5 did not address the tax consequences to either party following the execution of the QDRO , p aragraph 4.4 informed that all transactions under Article III were to be non

taxable events, referring to IRC 1041. Pursuant to those provisions, plaintiff has received $2800 mont hly , free of taxes, as her share of the pension distribution for more than seven years . Although t he PSA require s the preparation of a QDRO to divide
th e pension account , it is silent as to the tax consequences of the division of the account under the QDRO . Plaintiff does not dispute that a tax liability is incurred on a pension distribution , instead, she argues that since defendant paid the taxes on the
full distribution for so many years, she has become reliant on that arrangement .7 A - 0224

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We agree, as did the trial judge, that defendant failed to comply with his responsibility for drafting and submitting a QDRO for the division of the account. However, defendant's neglect was to his detriment and resulted in a windfall for plaintiff. She
has not pa id any taxes on her share of the pension distribution from June 2011 to the present time. The PSA does not address the tax consequences to the parties following the entry of a QDRO. The IRC imposes a tax liability on pension distributions. Under the circu mstances present here, we are satisfied the trial judge's determination that each party be responsible , going forward, for the tax owed on their resp e ctiv e shares of the pension distribution is a fair and just r eading of
the PSA. Although defendant was d ilatory in the preparation of the QDRO, plaintiff did not pursue the division of the account either. Instead, she collected a tax

- free share of the pension for more
than seven years. The equities favor the conclusion that th e gross distribution paid to p laintiff of $2800 is subject to the requisite imposition of taxes. We discern no abuse of discretion in the judge's denial of a plenary hearing , and w e decline to address plaintiff's argument that the trial court could have entered an order contrary to8 A - 0224

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exi sting tax laws as it was not raised to the trial court. See Selective Ins. Co. of Am. v. Rothman , 208 N.J. 580, 586 (2012) . Affirmed .