deeming a contention waived when the party failed to include any arguments supporting the contention in its brief
How later courts described this case
- deeming a contention waived when the party failed to include any arguments supporting the contention in its brief
Written by the judges who cited it.
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NOT FOR PUBLICATION WITHOUT THE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-1377-17T3
CAROLYN GILBERT-LEE,
Plaintiff-Appellant,
v.
VANDELL D. LEE,
Defendant-Respondent.
_____________________________
Submitted January 31, 2019 – Decided July 8, 2019
Before Judges O'Connor and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Salem County, Docket
No. FM-17-0103-14.
Brock D. Russell, attorney for appellant.
Robert J. O'Donnell, attorney for respondent.
PER CURIAM
In this post-judgment matrimonial matter, plaintiff Carolyn Gilbert-Lee
appeals from an October 27, 2017 order of the Family Part vacating the
previously entered October 11, 2016 Qualified Domestic Relations Order
(QDRO), directing the return of funds she received from a deferred
compensation plan under the QDRO, and awarding defendant Vandell D. Lee
attorney's fees. We reverse.
I.
We take the following facts from the record. The parties were divorced
by a Final Judgment of Divorce entered on March 25, 2015. An Amended Final
Judgment of Divorce (AJOD) was entered on September 22, 2015. The AJOD
provided, among other things, that Gilbert-Lee was to receive fifty percent of
the coverture portion of Lee's deferred compensation plan measured from the
date of the marriage through the date of the filing of the divorce complaint. The
court also ordered the parties to jointly engage an expert to draft the QDRO
necessary to implement this provision of the AJOD.
On May 26, 2016, Gilbert-Lee filed a motion to enforce litigant's rights
which, in relevant part, addressed Lee's continued failure to provide documents
establishing the premarital balance of his deferred compensation plan. The
expert retained by the parties advised them that she needed this information to
draft the QDRO.
A-1377-17T3
2
On July 15, 2016, the trial court granted Gilbert-Lee's motion and ordered
Lee to produce the information requested by the expert within thirty days. With
respect to Lee's deferred compensation plan, the court ordered that "if [Lee] fails
to provide information of the pre-marital interest, the parties shall split 50-50
the balance of [sic] the time of the [c]omplaint for [d]ivorce." Lee was present
in the courtroom when the trial court delivered its opinion.
Although Lee produced some information during the thirty-day period,
the expert informed the parties that the information he provided was insufficient
to determine the premarital balance of his deferred compensation plan. The
majority of documents produced by Lee were issued by an institution other than
the bank at which his deferred compensation plan was located and concerned an
annuity. A few documents concerning the deferred compensation plan were also
produced, but were dated the month before the filing of the divorce complaint.
Gilbert-Lee's counsel requested in writing that Lee produce documentation
establishing the premarital balance of the deferred compensation plan within
seven days. Lee did not produce any additional information. To date, he has
not established the premarital balance of the plan.
Gilbert-Lee's counsel thereafter submitted under the five-day rule, Rule
4:42-1(c), a proposed QDRO based on the assumption that there was no
A-1377-17T3
3
premarital balance in Lee's deferred compensation plan. Lee's counsel informed
the court in writing that he had reviewed the proposed QDRO and had no
objection to its terms. Lee was copied on his counsel's letter to the court.
On October 11, 2016, the trial court entered the QDRO. The order was
implemented through the administrator of Lee's deferred compensation plan
based on the assumption that there was no premarital balance, resulting in a
withdrawal of $96,817.36. After federal tax withholding, the administrator
issued $77,453.89 to Gilbert-Lee.
On August 11, 2017, Lee, having retained new counsel, filed a motion
pursuant to Rule 4:50-1(a) and (f) to: (1) vacate the QDRO; (2) compel Gilbert-
Lee to return all funds distributed to her from the deferred compensation plan
pursuant to the QDRO; (3) enter a revised QDRO providing that Gilbert-Lee
receive fifty percent of the value of Lee's deferred retirement plan from the date
of marriage to the date of the filing of the divorce complaint, minus Gilbert-
Lee's share of an outstanding pension loan; and (4) award Lee attorney's fees.
Lee argued that the QDRO was entered in error because it contradicted the
AJOD and the trial court's July 15, 2016 order. In addition, Lee argued that his
prior counsel did not show him the QDRO prior to consenting to its entry. Lee's
moving papers did not include a certification from his prior counsel explaining
A-1377-17T3
4
the circumstances of his having represented to the court that he had no objection
to the QDRO. Nor does Lee's certification address the fact that he was copied
on his prior counsel's letter accepting the QDRO, but apparently did not object
to the contents of the letter prior to entry of the QDRO. Lee's motion was
assigned to a judge different from the one who entered the QDRO.
On October 27, 2017, the trial court granted Lee's motion without holding
an evidentiary hearing. In a written opinion, which does not cite Rule 4:50-1 or
any legal authority referencing it, the trial court concluded that although Lee's
counsel had consented to the QRDO, "[t]he [c]ourt will not discuss the issue of
[Lee's] [c]ounsel . . . . [B]ased on previous orders of the [c]ourt it is clear that
[Lee] had no intention on [sic] consenting to such order." It appears that when
referring to "previous orders" the trial court was referring to the July 15, 2016
order, which reiterates that Gilbert-Lee is entitled to fifty percent of the martial
balance of the deferred compensation plan from the date of marriage to the date
the divorce complaint was filed. That order, however, contains a crucial caveat:
"To be clear, if [Lee] fails to provide information of the pre-marital interest, the
parties shall split 50-50 the balance of [sic] the time of the [c]omplaint for
[d]ivorce." The motion court does not mention this provision of the July 15 ,
2016 order in its written opinion or order.
A-1377-17T3
5
The trial court entered an order: (1) vacating the QDRO because it "was
unconscionable;" (2) directing the entry of an "appropriate" QDRO, presumably
granting Gilbert-Lee fifty percent of the value of Lee's deferred compensation
plan from the date of the marriage to the filing of the divorce complaint; (3)
directing Gilbert-Lee to return the funds distributed to her from Lee's deferred
compensation plan within thirty days; and (4) awarding Lee $2210 in attorney's
fees.1
This appeal followed. Gilbert-Lee makes the following arguments for our
consideration:
1
Gilbert-Lee cross-moved for relief, including restoration of alimony to the
amount agreed upon by the parties, which had been reduced by the trial court
when Lee retired sooner than expected. Gilbert-Lee argued that restoration was
warranted because Lee had returned to work. The trial court denied the cross-
motion. Although Gilbert-Lee mentioned the alimony issue in her case
information statement, she did not include argument on that point in her brief.
We therefore consider that issued waived. "[A]n issue not briefed is deemed
waived." Pressler and Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2
(2019); Telebright Corp. v. Dir., Div. of Taxation, 424 N.J. Super. 384, 393
(App. Div. 2012) (deeming a contention waived when the party failed to include
any arguments supporting the contention in its brief). The trial court also denied
Gilbert-Lee's cross-motion for attorney's fees. Gilbert-Lee did not designate the
paragraph of the October 27, 2017 order denying her attorney's fees application
in her notice of appeal and does not reference the issue in her case information
statement. We therefore decline to address her request that we remand this
matter for reconsideration of her fee application with respect to the issue raised
in her cross-motion.
A-1377-17T3
6
POINT I
[THE TRIAL COURT] ERRED BY VACATING
[THE] QDRO BECAUSE [IT] MISREAD THE
MEANING AND INTENT OF [THE] ORDER OF
JULY 15, 2016 (FINDING THE DEFENDANT IN
VIOLATION OF LITIGANT'S RIGHTS) UPON
WHICH THE QDRO WAS PREDICATED.
POINT II
[THE TRIAL COURT'S] FINDING THAT [THE]
QDRO OF OCTOBER 11, 2016 WAS
UNCONSCIONABLE OR WAS ENTERED
WITHOUT CONSENT WAS NOT SUPPORTED BY
ADEQUATE FINDINGS OF FACT AS REQUIRED
BY R. 1:7-4 AND WAS OTHERWISE ERRONEOUS.
POINT III
TO THE EXTENT [THE TRIAL COURT] WAS OF
THE VIEW THAT [THE] EARLIER ORDER WAS
UNCONSCIONABLE OR OTHERWISE
INEQUITABLE, THIS ISSUE WAS NOT PROPERLY
BEFORE [THE COURT] BECAUSE DEFENDANT
HAD NOT SOUGHT RELIEF FROM THAT ORDER
PRESUMABLY BECAUSE HE WAS OUT OF TIME
UNDER R. 4:50-2.
POINT IV
[THE TRIAL COURT] ABUSED [ITS] DISCRETION
UNDER R. 5:3-5(c) BY AWARDING DEFENDANT
COUNSEL FEES OF $2,210.00 AND BY DENYING
PLAINTIFF'S CROSS-APPLICATION FOR FEES.
A-1377-17T3
7
II.
R. 4:50-1 provides
[o]n motion, with briefs, and upon such terms as are
just, the court may relieve a party or the party’s legal
representative from a final judgment or order for the
following reasons: (a) mistake, inadvertence, surprise,
or excusable neglect . . . or (f) any other reason
justifying relief from the operation of the judgment or
order.
The Rule is "designed to reconcile the strong interests in finality of
judgments and judicial efficiency with the equitable notion that courts should
have authority to avoid an unjust result in any given case." Mancini v. EDS,
132 N.J. 330, 334 (1993) (quoting Baumann v. Marinaro, 95 N.J. 380, 392
(1984)). "The trial court's determination under the rule warrants substantial
deference, and should not be reversed unless it results in a clear abuse of
discretion." US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (citing
DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 (2009)). A court abuses its
discretion when it issues a decision that is "made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible
basis." Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007) (quoting Flagg
v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
A-1377-17T3
8
Our review of the trial court's decision is hampered by a lack of detail in
its findings of fact and conclusions of law. "When a trial court issues reasons
for its decision, it 'must state clearly [its] factual findings and correlate them
with relevant legal conclusions, so that parties and the appellate courts [are]
informed of the rationale underlying th[ose] conclusion[s].'" Avelino-Catabran
v. Catabran, 445 N.J. Super. 574, 594-95 (App. Div. 2016) (alternations in
original) (quoting Monte v. Monte, 212 N.J. Super. 557, 565 (App. Div. 1986)).
"[A]n articulation of reasons is essential to the fair resolution of a case." O'Brien
v. O'Brien, 259 N.J. Super. 402, 407 (App. Div. 1992).
The trial court did not make detailed findings of fact with respect to the
issuance of the QDRO and cited no legal precedents supporting its conclusion
that relief was warranted. Lee sought relief pursuant to both Rule 4:50-1(a) and
Rule 4:50-1(f). Those provisions concern distinct circumstances. Because the
trial court did not cite either subsection of the Rule in its decision or order, we
cannot determine the basis on which it granted relief to Lee. However, having
reviewed the parties' arguments in light of the record and applicable legal
principles, we conclude that Lee is not entitled to relief under either provision
of Rule 4:50-1 and therefore reverse the provisions of the October 27, 2017 order
from which Gilbert-Lee appeals.
A-1377-17T3
9
Section (a) of the Rule provides relief for errors "that a party could not
have protected against" during the litigation. DEG, 198 N.J. at 263 (quotation
omitted). Thus, an attorney's error of law is not sufficient to justify relief. Posta
v. Chung-Loy, 306 N.J. Super. 182, 206 (App. Div. 1997). Nor is an attorney's
failure to assert a particular claim in litigation. Hendricks v. A.J. Ross Co., 232
N.J. Super. 243, 248-49 (App. Div. 1989). Section (a) also does not provide
relief from the effects of litigation decisions, even if based on erroneous legal
advice. DEG, 198 N.J. at 263.
Because the trial court did not hold a hearing on the motion, it did not take
testimony from Lee, his prior counsel, or any other party with respect to the
circumstances under which prior counsel informed the court in writing that Lee
had no objection to entry of the QDRO. The only evidence on this crucial point
in the motion record was Lee's certification that he was not consulted before his
counsel accepted the QDRO, which the trial court apparently accepted at face
value without the benefit of live testimony. The trial court's finding that Lee
did not intend to consent to the QDRO is, therefore, not supported by adequate,
substantial, credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
Moreover, the QDRO was entered by the trial court not because it
represented an agreement between the parties, but because Lee had for a period
A-1377-17T3
10
of years failed to establish the premarital balance of his deferred compensation
plan. Shortly before Gilbert-Lee's counsel submitted the QDRO under the five-
day rule, Rule 4:42-1(c), the trial court had ordered that if Lee did not produce
documents demonstrating the premarital balance of the plan within a specified
period of time, the court would enter a QDRO granting Gilbert-Lee fifty percent
of the balance as of the date of the filing of the divorce complaint. Lee's prior
counsel's consent to the QDRO is not an acknowledgement that Lee agreed to
the terms of the QDRO, but that the QDRO accurately reflects the trial court's
distribution of the deferred retirement plan in light of Lee's failure to comply
with its order. Lee's prior counsel, in effect, acknowledged that Lee had not
complied with the trial court's order to produce the information the parties'
expert deemed necessary to draft the QDRO. There is nothing in the record
establishing that Lee ever produced evidence of the premarital balance, if one
existed, of the deferred compensation plan. 2
2
Lee's submissions suggest that it was not necessary for the trial court or the
parties' expert to determine the premarital balance of the deferred compensation
plan because a QDRO granting Gilbert-Lee fifty percent of the coverture during
the period of the marriage would have allowed the administrator of the plan to
calculate Gilbert-Lee's interest. Lee's prior counsel did not raise this issue with
the trial court prior to entry of the July 15, 2016 order or as an objection to the
QDRO under the five-day rule.
A-1377-17T3
11
Nor was relief warranted under subsection (f) of Rule 4:50-1. "No
categorization can be made of the situations which would warrant redress under
subsection (f) . . . . [T]he very essence of (f) is its capacity for relief in
exceptional situations." DEG, 198 N.J. at 269-70 (alternation in original)
(quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)). Relief under this
provision should be afforded "only when 'truly exceptional circumstances are
present.'" Guillaume, 209 N.J. at 484 (quoting Housing Auth. v. Little, 135 N.J.
274, 286 (1994)). "The rule is limited to 'situations in which, were it not applied,
a grave injustice would occur.'" Ibid. (quoting Little, 135 N.J. at 289).
Lee did not demonstrate exceptional circumstances warranting relief from
the QDRO. As noted above, the QDRO incorporates the trial court's decision to
distribute the deferred compensation plan based on the presumption that there
was no premarital balance because of Lee's recalcitrance with respect to
producing documents necessary to establish a premarital balance. Lee, having
not explained his failure to comply with the court's orders, nor established that
he had produced the necessary information prior to entry of the QDRO, did not
establish exceptional circumstances justifying relief under section (f).
In light of these conclusions, we need not address the parties' remaining
arguments and reverse the provisions of the October 27, 2017 order granting
A-1377-17T3
12
relief to Lee, including the award of attorney's fees. R. 5:3-5(c). The matter is
remanded to the trial court for further proceedings necessary to restore to
Gilbert-Lee any funds distributed to her from Lee's deferred compensation plan
and returned pursuant to the October 27, 2017 order, and for consideration of
whether Gilbert-Lee is entitled to fees in light of this court's opinion. We do not
retain jurisdiction. 3
3
Gilbert-Lee requests that the court direct the trial court to consider on remand
whether Lee overstated the balance of a pension loan as of the date of the filing
of the divorce complaint and failed to make an adequate disclosure of his
acquisition of a life insurance policy during the marriage. Because these issues
were not addressed in the October 27, 2017 order we decline to grant her request
for a remand. We offer no opinion with respect to whether Gilbert-Lee may
make an application to the trial court for relief on these points.
A-1377-17T3
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