The opinion
NOT FOR PUBLICATION WITHOUT THE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-1642-22
ANESTIS KARASARIDIS,
Plaintiff-Appellant,
v.
VOULA CONSTANTARAKOS,
Defendant-Respondent.
___________________________
Submitted May 7, 2024 – Decided August 29, 2024
Before Judges Rose and Smith.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FM-13-1338-20.
Berse Law, LLC, attorneys for appellant (Samuel J.
Berse, on the briefs).
Abatemarco, Thomlison & Frantz, LLC, attorneys for
respondent (Gregory B. Thomlison, on the brief).
PER CURIAM
Plaintiff, Anestis Karasaridis, appeals the post-judgment equitable
distribution orders of the Family Part directing apportionment of plaintiff's
pension plan by way of a separate interest qualified domestic relations order
(QDRO). After a dispute between the parties about interpretation of the pension
distribution terms in their matrimonial settlement agreement (MSA), the court
appointed an expert to define the type of pension plaintiff possessed and
recommend whether the pension should be divided by way of a shared or
separate interest. After receipt of the expert report, the court issued an order
defining plaintiff's pension plan and directing that it be equitably distributed
with defendant Voula Constantarakos, according to the terms of the MSA, as a
separate interest.
Plaintiff moved for reconsideration of the order. After denial of
reconsideration, plaintiff appeals, arguing that the Family Part erred by issuing
its order, based on the opinion of the appointed expert, without discovery and a
hearing pursuant to Rule 5:3-3. We reverse and remand for proceedings
consistent with the rule and this opinion.
The parties married on July 3, 1999. Their final judgment of divorce
(FJOD) was entered on May 12, 2021. They do not share any children. The
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parties entered into a marital settlement agreement (MSA) which was
incorporated into their FJOD.
Terms of the MSA relevant to this appeal include:
6.1 [T]he parties agree to equally divide the marital
coverture portion of all retirement accounts along with
any gains or losses through the date of distribution. As
such, except as otherwise specifically stated herein,
[defendant] shall receive [fifty percent] of the value of
[plaintiff's] retirement accounts from the date of
marriage (July 3, 1999) or the commencement date of
[plaintiff's] participation in each plan (whichever later
occurs) through the filing date of the Complaint for
Divorce (May 14, 2020), together with any passive
appreciation or depreciation on said amounts through
the date of the distribution in accordance with the
principles enunciated in Marx v. Marx, 265 N.J. Super.
418, 627 A.2d 691 (Ch. Div. 1993). Likewise, except
as otherwise specifically stated herein, [plaintiff] shall
receive [fifty percent] of the value of [defendant's]
retirement accounts from the date of marriage (July 3,
1999) or the commencement date of [defendant's]
participation in each plan (whichever later occurs)
through the filing date of the Complaint for Divorce
(May 14, 2020), together with any passive appreciation
or depreciation on said amounts through the date of the
distribution in accordance with the principles
enunciated in Marx v. Marx, 265 N.J. Super. 418, 627
A.2d 691 (Ch. Div. 1993).
....
6.3 Pursuant to Paragraph 6.1, [defendant] shall receive
[fifty percent] of the marital coverture portion of
[plaintiff's] retirement accounts. [Plaintiff] has
indicated he has the following retirement accounts:
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3
....
D. [Plaintiff's] Qualified Pension Benefit: The parties
agree [plaintiff] has a Qualified Pension Benefit
(AT&T Legacy Management Program) through his
employer, AT&T. [Plaintiff's] Case Information
Statement indicates this account had a value of
approximately $257,368.00 as of December 31, 2019.
This pension afforded [plaintiff] a monthly annuity
payment of approximately $4,220.00 as of December
31, 2019. The parties agree [defendant] shall receive
one-half (1/2) of the value of [plaintiff's] Pension Plan
as of the date of the Complaint for Divorce, May 14,
2020, together with any passive appreciation or
depreciation on said amount through the date of
distribution. The parties shall cooperate with one
another to provide [defendant] with her one-half share
of this account. The parties shall equally share in the
cost of a Qualified Domestic Relations Order (QDRO)
if same is necessary to provide [defendant] with her
one-half share of this account. The parties shall utilize
the services of ALLPRO QDRO or any other company
mutually agreed by the parties to prepare any such
documents. The parties further agree that a loan taken
by [plaintiff], if any, against this account shall not
affect [defendant's] interest in the foregoing account.
E. [Plaintiff's] AT&T Pension Benefit Plan:
[Plaintiff] asserts he does not have a defined benefit
pension plan as part of his employment with AT&T.
[Plaintiff] shall have an affirmative obligation to
provide any and all documentation relative to his
deferred compensation/pension plans. [Plaintiff] shall
also execute an Authorization simultaneously with the
signing of this Agreement to permit [Defendant] and
her counsel to communicate directly with AT&T,
Fidelity, or such brokerage firm who manages the
AT&T pension plan so as to obtain all documentation
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4
relative to [plaintiff's] deferred compensation pension
plan(s). To the extent any defined benefit account is
discovered, [defendant] shall receive [fifty percent] of
said pension plan from the date of marriage through the
date of the Complaint for divorce. The parties shall
equally share in the cost of the Domestic Relations
Order necessary to prepare the DRO which shall be
initiated within [thirty] days of receipt of the pension
information. If the Authorization does not provide the
requisite documentation, [defendant] shall have limited
subpoena power to acquire the documentation from
AT&T.
F. The parties intend for [defendant] to receive [fifty
percent] of the marital coverture portion of [plaintiff's]
retirement accounts pursuant to paragraph 6.1. In the
event [plaintiff] has an account which is not specifically
listed in the MSA, one-half of the marital portion of
same, together with any passive appreciation or
depreciation associated with any such account, shall be
provided to [defendant]. The absence of any such
account being specifically listed herein shall not
constitute a waiver on the part of [defendant] as to her
interest in same.
6.4 Pursuant to Paragraph 6.1, [plaintiff] shall receive
[fifty percent] of the marital coverture portion of
[defendant's] retirement accounts as set forth below:
A. [Defendant's] New Jersey TPAF Pension: The
parties acknowledge [defendant] has a defined benefit
plan known as a Teacher's Pension and Annuity Fund.
[Plaintiff] shall receive [fifty percent] of the marital
coverture of this account, namely from the date of
[defendant's] entry in the plan through the date of the
Complaint for divorce on May 14, 2020. ALLPRO
QDRO or any other company agreed by the parties shall
prepare the requisite DRO to divide the marital
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coverture [fifty/fifty]. The cost of the DRO shall be
shared [fifty/fifty].
....
F. The parties intend for [plaintiff] to receive one-half
of all marital accounts. In the event [defendant] has a
marital account which is not specifically listed in this
MSA, one[-]half of the marital portion of same,
together with any passive appreciation or depreciation
associated with any such account, shall be provided to
[plaintiff]. The absence of any such account being
specifically listed herein shall not constitute a waiver
on the part of [plaintiff] as to his interest in same.
Following the divorce, the parties began the process of drafting QDROs
pursuant to the MSA. The parties could not agree on how plaintiff's pension
should be divided. Consequently, plaintiff refused to execute any of the
QDROs. Defendant then moved to enforce the equitable distribution of
plaintiff's retirement account as a separate interest under the MSA. Plaintiff
cross-moved to divide his pension as a shared interest, and for counsel fees.
After the cross-motions were filed, the court held a case management
conference on July 15, 2022. The court issued an order the same day appointing
Rodney Troyan, Esq. as an expert 1 to advise the court whether: plaintiff's plan
1
The order states plaintiff will pay for two-thirds of the expert's cost while
defendant will be pay one-third.
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is a defined benefit plan, a cash balance pension, or a hybrid of the two;
plaintiff's pension should be divided via a shared or separate interest; MSA
paragraphs 6.3 (D) and (E) guide the parties intentions as to how to divide
plaintiff's plan; and the benefits and detriments to each party if the plan is
divided as a separate interest versus a shared interest. The order included a
statement that the court would "issue a decision on the parties' pending motions."
Troyan issued his expert opinion on August 1, 2022. Based on his analysis
of the facts and the relevant law, Troyan opined plaintiff's plan should be
considered as a separate plan for purposes of equitable distribution.
On August 22, 2022, rather than filing a motion seeking relief pursuant to
Rule 5:3-3, defendant wrote to the court asking that plaintiff's plan be divided
as a separate interest consistent with Troyan's opinion. On August 25, plaintiff
responded, disputing Troyan's opinion that his pension plan to be divided as a
separate interest. In plaintiff's letter to the court, he asked the court to equitably
distribute his pension as a shared interest. Plaintiff did not file a motion with
the court seeking such relief pursuant to Rule 5:3-3, nor did he notify the court
of his intent to retain an expert, seek discovery, or cross-examine Troyan.
Defendant replied on August 26, objecting to plaintiff's application.
Several weeks later, on October 3, plaintiff emailed the court seeking a status
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report on the matter. Again, plaintiff did not file a motion or affirmatively
request a case management conference.
On November 2, the court, without a hearing, issued an order and
statement of reasons directing plaintiff's plan be divided by way of a separate
interest QDRO. The court found Troyan's report "consistent with both statutory
and case law, as well as the underlying MSA and plan documents." The court
adopted Troyan's report "in its entirety."
Plaintiff moved for reconsideration, submitting the report of Lois Fried,
CPA. Fried opined that dividing the plan as a shared interest would be the most
equitable outcome. Defendant opposed reconsideration and sought enforcement
of the MSA and the November 2 order. The court heard argument on January
13, 2023 and denied reconsideration, declining to consider plaintiff's expert
report. Plaintiff appeals.
We review a trial judge's decision on whether to grant or deny a motion
for reconsideration under Rule 4:49-2 (motion to alter or amend a judgment
order) for an abuse of discretion. Branch v. Cream-O-Land Dairy, 244 N.J. 567,
582 (2021); Wiggins v. Hackensack Meridian Health, 478 N.J. Super. 355, 365
(App. Div. 2024). "The rule applies when the court's decision represents a clear
abuse of discretion based on plainly incorrect reasoning or failure to consider
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evidence or a good reason for the court to reconsider new information." Pressler
& Verniero, Current N.J. Court Rules, cmt. 2 on R. 4:49-2 (2024).
"Appellate courts accord particular deference to the Family Part because
of its 'special jurisdiction and expertise' in family matters." Harte v. Hand, 433
N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare v. Cesare, 154 N.J. 394,
412 (1998)). "Only when the trial court's conclusions are so 'clearly mistaken'
or 'wide of the mark' should we interfere." Ibid. (quoting N.J. Div. of Youth &
Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008)). "We will reverse only if we find
the trial judge clearly abused his or her discretion." Clark v. Clark, 429 N.J.
Super. 61, 72 (App. Div. 2012). "While an 'abuse of discretion . . . defies precise
definition,' we will not reverse the decision absent a finding the judge's decision
'rested on an impermissible basis,' considered 'irrelevant or inappropriate
factors,'" Spangenberg v. Kolakowski, 442 N.J. Super. 529, 535 (App. Div.
2015) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571-72 (2002)),
or "failed to consider controlling legal principles or made findings inconsistent
with or unsupported by competent evidence," ibid. (quoting Storey v. Storey,
373 N.J. Super. 464, 479 (App. Div. 2004)). However, "all legal issues are
reviewed de novo." Ricci v. Ricci, 448 N.J. Super. 546, 565 (App. Div. 2017).
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Plaintiff argues the trial court did not follow Rule 5:3-3, which establishes
the process for the court's appointment of an expert in family law matters.
Rule 5:3-3 states in pertinent part:
(c) Economic Experts. Whenever the court concludes
that disposition of an economic issue will be assisted
by expert opinion, it may in the same manner as
provided in Paragraph (a) of this rule appoint an expert
to appraise the value of any property or to report and
recommend as to any other issue, and may further order
any person or entity to produce documents or to make
available for inspection any information or property,
which is not privileged, that the court determines is
necessary to aid the expert in rendering an opinion.
....
(f) Submission of Report. Any finding or report by an
expert appointed by the court shall be submitted upon
completion to both the court and the parties. At the time
of submission of the court's experts' reports, the reports
of any other expert may be submitted by either party to
the court and the other parties. The parties shall
thereafter be permitted a reasonable opportunity to
conduct discovery in regard thereto, including, but not
limited to, the right to take the deposition of the expert.
(g) Use of Evidence. An expert appointed by the court
shall be subject to the same examination as a privately
retained expert and the court shall not entertain any
presumption in favor of the appointed expert's findings.
Any finding or report by an expert appointed by the
court may be entered into evidence upon the court's
own motion or the motion of any party in a manner
consistent with the rules of evidence, subject to cross-
examination by the parties.
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(h) Use of Private Experts. Nothing in this rule shall be
construed to preclude the parties from retaining their
own experts, either before or after the appointment of
an expert by the court, on the same or similar issues.
Specifically, plaintiff contends that the court erred by issuing its own
expert report and then adopting it, without giving plaintiff an opportunity to
conduct discovery and submit his own expert. Plaintiff further argues that the
trial court committed further error by not requiring its own expert to testify, so
that plaintiff could cross-examine the expert as required by Rule 5:3-3(g). We
agree.
The language of Rule 5:3-3(f) and (g) is clear. Pursuant to subsection (f),
the court shall permit the parties a reasonable opportunity to conduct discovery
as to the court's expert, including opportunity to take the expert's deposition.
Subsection (g) provides the admission of the court-appointed expert's opinion
into evidence is expressly subject to "cross-examination by the parties."
While plaintiff failed to take affirmative steps to assert his right to
discovery or cross-examination pursuant to Rule 5:3-3, the court erred by not
taking affirmative steps to implement the specific requirements of the rule. In
the vacuum which existed between August 1, 2022 and November 2, 2022, the
record shows the parties wrote or emailed the court to no avail. The trial court
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did not call a case management conference, nor issue a case management order
establishing incorporating a discovery schedule and hearing date.
The court's November 2, 2022 order that equitable distribution of
plaintiff's pension would be conducted as a separate interest, was issued without
a hearing, and therefore, without an opportunity for cross-examination by
plaintiff. The court relied on Troyan's report in making its findings, adopting
the expert's report in its entirety. We express no opinion on what impact
discovery, cross-examination, and plaintiff's production of an opposing expert
would have had on the court's conclusion, but Rule 5:3-3 requires that plaintiff
be given the opportunity to use these tools. Only after compliance with Rule
5:3-3 should the trial court have made its findings and issued an order
concerning equitable distribution of plaintiff's pension.
We conclude the trial court misapplied Rule 5:3-3 by not affording
plaintiff the opportunity for discovery and issuing its order of November 2, 2022
without conducting a hearing where its appointed expert could testify and be
subject to cross-examination. The harm was compounded on reconsideration
when the trial court improperly rejected consideration of plaintiff's opposing
expert report.
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We reverse and remand for further proceedings. The trial court shall
conduct a case management conference pursuant to Rule 5:3-3 within forty-five
days, and then shall issue a case management order. The case management order
shall include an expedited discovery schedule consistent with Rule 5:3-3(f) and
set a hearing date for testimony and cross-examination of the court appointed
expert, and any experts retained by the parties pursuant to Rule 5:3-3(g).
Reversed and remand. We do not retain jurisdiction.
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