JANUSZ KADZIELAWA v. MARIA KADZIELAWA (FM-16-0338-09, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4296-19

JANUSZ KADZIELAWA,

Plaintiff-Respondent/

Cross-Appellant,

v.

MARIA KADZIELAWA,

Defendant-Appellant/

Cross-Respondent.

_______________________

Argued October 6, 2021 – Decided August 18, 2022

Before Judges Hoffman and Susswein.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Passaic County,

Docket No. FM-16-0338-09.

Adamo Ferreira argued the cause for defendant-

appellant/cross-respondent.

Jeffrey J. Trapanese argued the cause for plaintiff-

respondent/cross-appellant (Weiss, Tom & Trapanese,

LLC, attorneys; Jeffrey J, Trapanese, on the briefs).

PER CURIAM

This appeal arises from a contentious divorce that has led to several post

judgment disputes. Defendant, Maria Kadzielawa (former wife), appeals a July

2020 Family Part order granting plaintiff Janusz Kadzielawa's (former

husband's) motion to enforce litigant's rights. The trial court found that

defendant acted in bad faith by withdrawing more from plaintiff's individual

retirement account (IRA) than was authorized under the explicit terms of a

settlement agreement. The order directs defendant to refund the overage to

plaintiff's IRA. The trial court also rejected defendant's cross-motion in which

she contends that she is entitled to an additional $11,000 regarding a loan against

plaintiff's retirement account. Both parties challenge the attorney fee aw ard.

After carefully reviewing the record in light of the applicable legal principles,

we affirm the trial court's rulings with respect to parties' motions to enforce

litigants' rights. We are constrained, however, to remand the matter for the trial

court to reconsider the attorney fee award and to make findings regarding the

factors set forth in Rule 5:3-5(c).

I.

We discern the following facts and procedural history from the record.

Plaintiff and defendant married in 1992 and divorced in 2010. An amended

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judgment of divorce was filed in October 2010. The parties thereafter returned

to court on numerous occasions to resolve various post-judgment disputes.

In May 2018, the parties agreed to resolve their outstanding issues in a

handwritten settlement agreement. At the time of that agreement, defendant had

a Roth IRA and plaintiff had a 401(k) through his employer. 1 The settlement

agreement expressly provided that plaintiff was to pay defendant $40,000 by

means of a rollover transfer from his 401(k), as well as the amount due for her

share of the coverture value of their retirement accounts. The settlement

agreement further explicitly provided that plaintiff was responsible for "100%

of the value of the loan against the 401(k) (approximately $22,000 of which

$11,000 was previously agreed to set off against [d]efendant's share)."

On June 4, 2018, the parties executed a Qualified Domestic Relations

Order (QDRO). Section eight of that order set forth the benefits that were to be

paid to the alternate payee, i.e., defendant. Specifically, the QDRO stated that

as alternate payee, defendant is "to be allocated $30,525.28 as of September 5,

2008. This amount is to be adjusted for gains and/or losses from September 5,

1

Plaintiff's 401(k) was terminated because his employer permanently closed

business. The funds contained in the 401(k) were rolled into a Safe Harbor IRA

administered by Matrix Trust Co.

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2008[,] to the date of distribution." That section of the QDRO also credited

defendant an additional $40,000. Accordingly, defendant was entitled to receive

$70,525.28 plus the gains and/or losses on the $30,525.28 allocation (the

coverture share).

A consent order filed by the court on March 4, 2019, ratified and

memorialized the parties' May 2018 handwritten settlement agreement. When

that consent order was filed, plaintiff's Safe Harbor IRA account with Matrix

contained $172,998.17.

On April 26, 2019, defendant filled out an IRA distribution request form

for plaintiff's IRA. Neither defendant nor her attorney advised plaintiff or his

attorney of this distribution request. Defendant requested "50% + $40,000" from

plaintiff's IRA. Matrix complied with defendant's request and paid to defendant

half of the $172,998.17 in the account ($86,561.38) plus $40,000, for a total of

$126,561.38.

On July 25, 2019, plaintiff filed a motion to enforce litigant's rights,

seeking an order: (1) adjudging defendant to be in violation of litigant's rights

"based upon her deliberate failure to abide" by the terms of the written

stipulation which was incorporated within the March 2019 consent order; (2)

directing defendant to immediately return the full sum of the $126,561.38 she

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received from the excessive distribution; (3) adjudging defendant to be "solely

responsible for any 10% early withdrawal penalty" assessing the penalty against

defendant's IRA and prohibiting any deduction for said penalty from plaintiff's

IRA; (4) calculating any gains and losses due to defendant's improper

withdrawal; (5) awarding plaintiff full reimbursement of all legal fees; and (6)

"[f]or such other relief as the [c]ourt may deem equitable and just."

On August 30, 2019, defendants filed a cross-motion seeking an order:

(1) denying plaintiff's motion in its entirety; (2) ordering plaintiff "to pay all

costs associated with the calculation of the coverture value of the parties'

retirement account[;]" (3) "[a]djudging the [p]laintiff to be in violation of

litigant's rights based upon his non-compliance" with the May 10, 2018 consent

order; (4) awarding reimbursement of all attorneys' fees and legal expenses; and

(5) "such further relief as the [c]ourt deems fair and equitable."

The parties appeared before the Family Part court on October 18, 2019,

but the court was unable to resolve the motions because it lacked sufficient

information. The trial court issued an order instructing the parties to provide

the following information: (1) the "gains/losses since September 5, 2008 on the

$30,525.28 that was identified as the marital coverture portion of [p]laintiff's

401(k) account[;]" (2) the "dollar value of the amount of interest lost by

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[p]laintiff based on more money having been withdrawn from his 401(k)

account, if any[;]" and (3) "[w]hether all funds must be returned to the Matrix

account in order to perform a redistribution or alternatively whether a rollover

from [d]efendant's IRA to [p]laintiff's Matrix account is permissible." The order

provided that the hearing on plaintiff's motion and defendant's cross-motion

would be reconvened on November 15, 2019. The court reserved on the issue

of counsel fees.

The gains and losses on the marital coverture from September 2008 to the

distribution date were to be calculated by the pension evaluator, Troyan, Inc.

(Troyan). Those calculations were not completed by the November 15, 2019

hearing date. The trial court issued an order on that date providing that the

parties "shall equally divide the $300 fee for calculations of gains/losses on the

marital coverture" and that defendant would be responsible for the $250 archive

retrieval fee to Troyan. The order further directed that parties "to notify the

[c]ourt by December 15, 2019 via letter or facsimile regarding their ability to

resolve the issue of legal fees, or alternatively, whether a plenary hearing is

required in this matter."

Troyan provided the calculations on January 24, 2020. The calculations

were based on an average of four indexes "to offer counsel a range of curre nt

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values for the base award" to defendant. Defendant agreed to a calculation using

these averages. There remained, however, unresolved disputed issues, including

defendant's claim that she was entitled to $11,000 from the $22,000 loan against

plaintiff's 401(k).

In March 2020, defendant filed an opposing certification raising a new

argument that she is "entitled to the investment experience earned on her

[coverture] share while it is being held in plaintiff's account." (emphaisis added).

The COVID-19 pandemic delayed proceedings. On July 10, 2020, the

parties appeared for oral argument via Zoom video conference. The trial court

granted plaintiff's motion and denied defendant's cross-motion in its entirety.

The court ruled that defendant was adjudicated and determined to have acted in

bad faith. The trial court thereupon entered an order enforcing litigant's rights.

That order instructed that defendant was to "effectuate a direct rollover and

return the sum of $42,293.75 from her IRA account into [p]laintiff's Safe Harbor

IRA with Matrix[.]" The court further ordered defendant to pay plaintiff $5,000

for counsel fees.

This appeal followed. Defendant raises the following contentions for our

consideration:

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POINT I

DEFENDANT IS ENTITLED TO THE INVESTMENT

EXPERIENCE AS GAINS EARNED ON HER

COVERTURE SHARE WHILE IT WAS BEING

HELD IN PLAINTIFF'S ACCOUNT SINCE

SEPTEMBER 2008.

POINT II

PLAINTIFF IS RESPONSIBLE FOR THE VALUE OF

THE LOAN AGAINST THE 401K IN THE

APPROXIMATE AMOUNT OF $11,000.00 AND

SAID PAYMENT MUST BE MADE DIRECTLY TO

DEFENDANT TO COMPLY WITH THE TERMS OF

THE PARTIES' SETTLEMENT AGREEMENT.

POINT III

THE SETTLEMENT AGREEMENT IS VOIDABLE

BY DEFENDANT UNDER THE DOCTRINE OF

MUTUAL MISTAKE.

POINT IV

THE COURT COMMITTED ERROR BY

AWARDING PLAINTIFF ATTORNEYS FEES.

Plaintiff raises the following contention for our consideration in his cross-

appeal:

POINT I

DEFENDANT'S CLAIM FOR RECOVERY OF

"INVESTMENT EXPERIENCE" AS GAINS ON HER

COVERTURE SHARE OF PLAINTIFF'S SAFE

HARBOR IRA WAS PROPERLY REJECTED BY

THE TRIAL COURT AS UNTIMELY, CONTRARY

TO THE PARTIES' AGREEMENT, AND NOT

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SUPPORTED BY A COMPETENT ACTUARIAL

EXPERT OPINION.

POINT II

UNDER THE EXPRESS TERMS OF THE PARTIES'

SETTLEMENT AGREEMENT DATED MAY 10,

2018, PLAINTIFF BEARS ABSOLUTELY NO

OBLIGATION TO PAY THE SUM OF $11,000.00 TO

DEFENDANT, AND DEFENDANT'S CLAIMS TO

THE CONTRARY ARE PATENTLY ABSURD AND

CONTRIVED IN BAD FAITH.

POINT III

THE PARTIES' SETTLEMENT AGREEMENT

DATED MARCH 10, 2018 IS BOTH VALID AND

ENFORCEABLE, SINCE THERE WAS NEVER ANY

"MUTUAL MISTAKE" AS ALLEGED BY THE

DEFENDANT.

POINT IV

THE TRIAL COURT PROPERLY CONCLUDED

THAT DEFENDANT ACTED IN BAD FAITH, AND

ALSO PROPERLY AWARDED COUNSEL FEES TO

PLAINTIFF, BUT ERRED IN FIXING THE

QUANTUM OF COUNSEL FEES DUE TO

PLAINTIFF BASED UPON THE "PREVAILING

PARTY" PROVISION IN THE PARTIES'

SETTLEMENT AGREMEENT DATED MARCH 10,

2018, AND ALSO A PROPER ANALYSIS UNDER

[RULE] 4:42-9(A) (1), [RULE] 5:3-5(C) AND [RULE]

4:42-9(B).

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II.

We begin our analysis by acknowledging the legal principles governing

this appeal. Appellate courts generally "review the Family Part judge's findings

in accordance with a deferential standard of review, recognizing the court 's

'special jurisdiction and expertise in family matters.'" Thieme v. Aucoin-

Thieme, 227 N.J. 269, 282–83 (2016) (quoting Cesare v. Cesare, 154 N.J. 394,

413 (1998)). Appellate courts also defer to the trial court's findings of fact

"when supported by adequate, substantial, credible evidence." Cesare, 154 N.J.

at 411–12 (citing Rova Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484

(1974)). However, "[a] trial court's interpretation of the law and the legal

consequences that flow from established facts are not entitled to any s pecial

deference." Manalapan Realty L.P. v. Manalapan Twp. Comm., 140 N.J. 366,

378 (1995). Legal decisions of Family Part judges are reviewed under the same

de novo standard that applies to legal decisions in other cases. Rowe v. Bell &

Gossett Co., 239 N.J. 531, 552 (2019); Reese v. Weis, 430 N.J. Super. 552, 568

(App. Div. 2013).

N.J.S.A. 2A:34-23.1 governs the equitable distribution of marital assets.

The standard of review of trial court rulings relating to which assets are available

for distribution and the valuation of those assets, "is whether the trial judge's

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findings are supported by adequate credible evidence in the record." Borodinsky

v. Borodinsky, 162 N.J. Super. 437, 443–44 (App. Div. 1978) (citing Rothman

v. Rothman, 65 N.J. 219, 232 (1974)). Where the issue on appeal concerns the

manner in which allocation of the eligible assets is made, "an appellate court

may determine whether the amount and manner of the award constituted an

abuse of the trial judge's discretion." Id. at 444; see also Slutsky v. Slutsky, 451

N.J. Super. 332, 355 (App. Div. 2017) (a Family Part judge has broad discretion

in allocating assets subject to equitable distribution).

A.

We first address defendant's contention that she is entitled to "investment

experience" as gains earned on her coverture share. As we have noted, and as

the trial court emphasized in its ruling, defendant had agreed to Troyan's

calculation methodology. The court rejected defendant's attempt to employ a new

calculation raised for the first time in her supplemental certification, reasoning that

"the [c]ourt can't make a better deal for the parties than the one that they made for

themselves." See Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 43 (1960) ("Courts

cannot make contracts for parties. They can only enforce the contracts which the

parties themselves have made.").

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Defendant now argues that "[o]ur country has experienced unprecedented

growth in the stock market over the past eleven years." She thus contends that

"[t]here simply exists no reason why the [p]arties should use a flat interest rate

when they know the actual return rates of the assets that comprised the pension."

We agree with the trial court that there is no reason not to hold defendant

to her prior agreement to use the Troyan calculations. The trial court aptly noted

that this case has been protracted, and that using a calculation methodology other

than the one the parties agreed to would cause further dely. The court explained,

"[i]f the defendant wanted another methodology to be used, the defendant

certainly could have alerted the court to that sometime between October and

when I did my order today."

We agree with the trial court that defendant's newly-minted argument

essentially asked the trial court to make a new settlement agreement for the

parties, which is inappropriate. See Kampf, 33 N.J. at 43. We are satisfied that

there is sufficient credible evidence in the record to support the trial court's

finding that the parties had previously agreed to use Troyan's calculation

methodology, and on that basis, we reject defendant's "investment experience"

argument.

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B.

We likewise reject defendant's contention that she is entitled to half of the

amount of the $22,000 loan against plaintiff's 401(k). We agree with the trial

court that the plain language of the 2018 settlement agreement expressly

provides that plaintiff is solely responsible for the loan. The handwritten

settlement agreement, which was ratified and incorporated by the March 4, 2019

consent order, provides explicitly and unambiguously that

Plaintiff shall be responsible for 100% of the value of

the loan against the 401(k) (approximately $22,000 of

which $11,000 was previously agreed to be set off

against defendant's share until this agreement). Upon

the court's entry of the QDRO, defendant shall record a

warrant of satisfaction on the judgment she has against

plaintiff.

The trial court correctly determined that the plain language of this

provision is controlling. Accordingly, the trial court concluded, "plaintiff . . .

agreed to assume responsibility for the full $22,000 which meant that defendant

was no longer entitled to $11,000."

"As a general rule, courts should enforce contracts as the parties

intended." Sachau v. Sachau, 206 N.J. 1, 5 (2011). Applying this well-settled

principle, we reject defendant's request essentially either to ignore the meaning

of the express terms, or else change the terms of the agreement. When the parties

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entered the 2018 settlement agreement, its terms made clear that plaintiff would

assume the entire responsibility for the loan.

We likewise reject defendant's argument that the settlement agreement is

voidable "because it is based on a material mistake of fact of the parties[,]"

specifically relating to the language regarding the $11,000. That argument lacks

sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E).

We acknowledge the general principle that, "[a] compromise which is the

result of a mutual mistake is not binding and consent to a settlement agreement

is not considered freely given when it is obtained as a result of a mistake."

Lampley v. Davis Mach. Corp., 219 N.J. Super. 540, 550 (App. Div. 1987).

"The doctrine of mutual mistake applies when a 'mistake was mutual in that both

parties were laboring under the same misapprehension as to [a] particular,

essential fact.'" Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 608 (1989)

(alteration in original) (emphasis in original) (quoting Beachcomber Coins, Inc.

v. Boskett, 166 N.J. Super. 442, 446 (App. Div. 1979)).

We are satisfied, however, that plaintiff was not operating under a

mistake. Even accepting defendant's supplemental certification as true, her

claimed mistake is, at most, a unilateral mistake, not a mutual mistake. A

unilateral mistake is "unknown to the other party" and "is not ordinarily grounds

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for avoidance of a contract." Ctr. 48 Ltd. P'ship v. May Dep't Stores Co., 355

N.J. Super. 390, 412 (App. Div. 2002) (citing Intertech v. Paterson, 255 N.J.

Super. 52, 59 (App. Div. 1992)).

To the extent we have not addressed them, any remaining arguments

raised by defendant with respect to the motion and cross-motion to enforce

litigants' rights lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

III.

We turn finally to the argument raised by both parties that the trial court

abused its discretion in awarding plaintiff $5,000 in counsel fees. Pursuant to

the May 2018 handwritten settlement agreement, which was incorporated into

the March 4, 2019 consent order, the parties agreed that "[i]n the event of a

breach of this agreement, the non-breaching party shall be entitled to recover

reasonable attorney's fees and cost against the breaching party."

At the July 10, 2020 hearing, the trial court found that defendant was

"clearly act[ing] in bad faith[,]" which impacted the court's determination of

counsel fee awards. The trial court further recognized that "plaintiff's counsel

fees would not even ha[ve] been necessary had the defendant simply done the

right thing and refunded the portion of the money that she felt was due."

However, the court noted, "I don't think it would be fair to make [defendant] pay

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the entire amount of the plaintiff's counsel's fees[,] so I'm going to do what I

think is fair and reasonable . . . ." The court thereupon determined "it would be

appropriate for the defendant to pay $5,000 of the plaintiff's counsel fees. And

if she doesn't have the ability to afford that, you can adjust the amount of money

that's going to be refunded to the plaintiff to include that counsel fee amount."

Plaintiff asserts that by the time the court decided the motion and cross-

motion on July 10, 2020, he had incurred at least $15,761.45 in legal fees.

Plaintiff adds that "[a]s a result of this appeal, [p]laintiff's legal costs are still

ongoing and may well double." Plaintiff thus contends the trial court's $5,000

award was "arbitrary in nature, because it did not fairly take into consideration

the extent of [d]efendant's bad faith, the parties' respective financial

circumstances, or the applicable Rules of Court and Rules of Pro fessional

Conduct."

Defendant also contends the trial court failed to consider the appropriate

factors in determining the award of attorney fees. Defendant argues "the judge

simply found bad faith and ordered an award without either party's case

information statement or other relevant information." Defendant adds that,

"[h]ad the trial court properly considered the relevant factors, it should have

become abundantly obvious that [d]efendant did not act in bad faith, is poor, has

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paid attorneys to enforce [p]laintiff's breaches for years and had supported the

[p]arties' children through college without support from the [p]laintiff."

The law is well-settled that "the award of counsel fees and costs in a

matrimonial action rests in the discretion of the court." Williams v. Williams, 59

N.J. 229, 233 (1971). "[A] reviewing court will disturb a trial court's award of

counsel fees 'only on the rarest occasions, and then only because of a clear abuse

of discretion.'" Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 386 (2009)

(quoting Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001)). The

same principle applies to an award of counsel fees in matrimonial matters. See

Williams, 59 N.J. at 233.

Rule 5:3-5(c) enumerates nine factors for the court to consider in

determining the amount of the fee award, accounting for information required

to be submitted pursuant to Rule 4:42-9. The nine factors are: (1) "the financial

circumstances of the parties;" (2) "the ability of the parties to pay their own fees

or to contribute to the fees of the other party;" (3) "the reasonableness and good

faith of the positions advanced by the parties both during and prior to trial;" (4)

"the extent of the fees incurred by both parties;" (5) "any fees previously

awarded;" (6) "the amount of fees previously paid to counsel by each party;" (7)

"the results obtained;" (8) "the degree to which fees were incurred to enforce

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existing orders or to compel discovery;" and (9) "any other factor bearing on the

fairness of an award." R. 5:3-5(c).

Importantly, the record shows that in this instance, the trial court did not

require the parties to submit up-to-date case information statements with which

to assess each party's relative financial circumstances. Accordingly, although

we are reticent to delay this matter further, we are constrained to conclude that

the judge made insufficient findings and failed to adequately explain its

consideration and analysis of the relevant factors. We therefore remand for the

trial court to make specific findings as to the pertinent Rule 5:3-5(c) factors. We

offer no opinion as to the proper amount of the attorney fee award.

Affirmed, in part, and vacated and remanded, in part. We do not retain

jurisdiction.

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