Orlowski v. Orlowski

• Decision Date: 07 May 2019
• Docket Number: DOCKET NO. A-2969-16T4
• Citation: 459 N.J.Super. 95,208 A.3d 1
• Parties: Joanna B. ORLOWSKI, Plaintiff-Respondent/Cross-Appellant, v. Robert ORLOWSKI, Defendant-Appellant/Cross-Respondent.
• Court: New Jersey Superior Court — Appellate Division

459 N.J.Super. 95

208 A.3d 1

Joanna B. ORLOWSKI, Plaintiff-Respondent/Cross-Appellant,

v.Robert ORLOWSKI, Defendant-Appellant/Cross-Respondent.

DOCKET NO. A-2969-16T4

Superior Court of New Jersey, Appellate Division.

Argued April 2, 2019

Decided May 7, 2019

Robert Orlowski, appellant/cross-respondent, argued the cause pro se (Cores & Associates, LLC, attorney; Amy S. Cores, Howell, on the briefs).

Stephen H. Roth, Hackensack, argued the cause for respondent/cross-appellant.

Before Judges Fisher, Hoffman and Geiger.

The opinion of the court was delivered by

GEIGER, J.A.D.

In this post-judgment matrimonial appeal, we consider whether a court may compel reimbursement of college tuition, forensic accountant's fees, and counsel fees, through an enhanced wage garnishment and a Qualified Domestic Relations Order (QDRO) against the obligor's individual annuity account funds on deposit in an annuity governed by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001 to 1461. We hold that unpaid awards for counsel fees and expert witness fees relating to child support, property distribution, and college tuition reimbursement are enforceable by QDRO from ERISA protected pension funds when an ex-spouse is the alternative payee of the QDRO. We further hold the counsel fee judgments relating to child and spousal support are enforceable through an enhanced wage garnishment.

I.

The complex procedural history underlying this appeal necessitates a brief review of the proceedings that led to the arrearages owed to plaintiff Joanna B. Orlowski, her enforcement efforts, and defendant Robert Orlowski's bad faith, unclean hands, frivolous litigation in both state and federal court, and willful, sustained failure to comply with court orders.

Before we discuss the pertinent facts and procedural history, we note defendant appealed numerous orders and directed our attention to several alleged trial court errors. Defendant's appeal, however, was dismissed for failure to timely file a brief, so we do not consider those issues. Accordingly, our review of the facts and procedural history is limited to those relevant to plaintiff's cross-appeal.

Defendant is a member of the International Union of Operating Engineers Local 14-14B (the Union). The Union administers a pension fund known as the Annuity Fund of the International Union of Operating Engineers Local 14-14B (the Annuity). Defendant has substantial ERISA protected funds in his individual annuity account (the annuity funds) with the Annuity.

The parties were married in May 1993 and had two sons. Plaintiff's 2014 divorce action was finalized in 2016. The amended final judgment of divorce (amended judgment) required defendant to pay his child support obligations by wage garnishment.

The amended judgment incorporated the parties' "partial" property settlement agreement (PSA), which addressed the equitable distribution of various marital assets, including the former marital residence and a 401(k) investment account. The PSA also provided that plaintiff waived her claim for alimony in exchange for a non-taxable lump sum payment of $ 120,000. Notably, the PSA did not resolve equitable distribution of the annuity funds and plaintiff's IRA. The parties' mediator authored a supplemental letter to the PSA that addressed certain child support and tax issues, and stated two issues remained unresolved: (1) counsel fees; and (2) any claims or credits relating to the fees incurred for the forensic accountant used to investigate the parties' reciprocal claims of dissipation of marital assets.

In a written opinion, the trial court explained the forensic accountant's report demonstrated defendant could not account for $ 118,175 in marital funds. On the other hand, the trial court found defendant did not demonstrate plaintiff dissipated marital funds. As a result, plaintiff was successful in her dissipation claim. The court reallocated responsibility for $ 5000 of the fees charged by the forensic accountant from plaintiff to defendant for services related to defendant's meritless dissipation claim.

As for counsel fees, the trial court recognized defendant's greater annual income, assets, and lesser debt relative to plaintiff. It noted plaintiff moved three times for enforcement of prior court orders and served sixteen subpoenas to obtain discovery, which defendant obstructed. The court also stated the case featured an "extensive litigious history" and plaintiff's dissipation claim was successful, whereas defendant's was unsubstantiated.

Based on these findings, the trial court awarded plaintiff: one-half of the marital assets dissipated by defendant to be paid from defendant's annuity account via a QDRO; $ 5000 as reimbursement for fees paid to the forensic accountant due to defendant's meritless dissipation claim; and $ 48,194.98 for counsel fees. Defendant was further ordered to pay $ 1150 to the mediator.

Thereafter, defendant refused to comply with the PSA and subsequent court orders. His obstinance prompted plaintiff to move for enforcement in April, May, September, and December of 2016.¹ All of plaintiff's enforcement motions were granted, at least in part. Of note, on December 15, 2016, the trial court partially granted plaintiff's enforcement motion by: (1) entering judgment against defendant in the amount of $ 5000 for failure to pay the forensic accounting fee reimbursement; (2) imposing a wage execution to collect the previously ordered and unpaid $ 48,194.98 in counsel fees; and (3) awarding plaintiff attorney's fees incurred after March 31, 2016, relating to her enforcement motions and her successful defense of an order to show cause filed by defendant, in an amount to be determined.

Defendant remained noncompliant. Plaintiff sought enforcement of the prior orders, including payment of the previously awarded counsel fees, from defendant's annuity funds through a QDRO. The trial court declined to enforce the counsel fee arrearages "as alimony, by QDRO."

In March 2016, defendant filed two petitions with the United States District Court for the District of New Jersey to remove the case to federal court. On March 8 and 10, 2016, the District Court remanded the case to the Superior Court sua sponte.

Defendant also filed a federal civil rights action against sixteen defendants, including plaintiff, her attorney, the forensic accountant, the mediator, Governor Christie, three Superior Court judges, and plaintiff's former attorney. The defendants named in the action moved to dismiss the complaint with prejudice pursuant to Fed. R. Civ. P. 12(b)(6) and for sanctions. District Court Judge Susan D. Wigenton dismissed the action with prejudice but denied the application for sanctions.

Incredibly, in May 2016, defendant filed yet another application for removal, which the District Court denied. The District Court also prohibited defendant from filing any additional pleadings without permission of the court.

On May 30, 2017, the trial court awarded plaintiff counsel fees of $ 63,786.50 for the post-March 31, 2016 state court proceedings. The court explained that plaintiff had to file several motions to enforce the terms of the PSA. It recognized defendant acted in bad faith throughout the litigation by engaging in efforts to prevent the enforcement of the amended judgment, PSA, and subsequent orders.² The court also noted defendant earned a much higher income than plaintiff and carried a balance of $ 395,334 in annuity funds.

Plaintiff moved to enforce litigant's rights and for sanctions due to defendant's refusal to pay the $ 131,495.48 she seeks on appeal. The trial court ordered defendant to pay his portion of the college tuition expenses but declined to impose coercive sanctions. The trial court declined to impose an enhanced wage garnishment to collect unpaid counsel fee awards and the forensic accountant fee reimbursement. Although the court stated on the record that an enhanced wage garnishment would be established against defendant for the college tuition reimbursement, the order does not reflect that an enhanced wage garnishment was ordered. The lump sum amount of $ 14,514 was added to defendant's child support obligations, representing his college tuition responsibility. A subsequent March 23, 2018 amended order provided defendant's disposable earnings would be garnished at fifty-five percent pursuant to 15 U.S.C. § 1673 and reiterated that the $ 14,514 college tuition reimbursement was added to defendant's child support obligation.³

Defendant's appeal, ultimately dismissed, and plaintiff's cross-appeal followed. Plaintiff cross-appealed certain aspects of several orders. She argues: (1) the trial court erred by not enforcing the counsel fee judgments and college tuition award through a QDRO against defendant's annuity funds; and (2) the trial court erred by not enforcing the counsel fee judgments by an enhanced wage garnishment. Plaintiff contends that she will be unable to enforce the counsel and expert fee awards absent a QDRO due to defendant's manipulation of his assets. She argues she is entitled to this remedy as a matter of equity to prevent the injustice she would otherwise suffer.

II.

ERISA was enacted by Congress to protect employees and their dependents who rely on retirement plans. Hawxhurst v. Hawxhurst, 318 N.J. Super. 72, 82-83, 723 A.2d 58 (App. Div. 1998). The primary safeguard is ERISA's "broadly worded preemption clause which establishes the regulation of pension plans ‘as exclusively a federal concern.’ " Id. at 83, 723 A.2d 58 (quoting Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523, 101 S.Ct. 1895, 68 L.Ed.2d 402 (1981) ). ERISA also safeguards pension funds through its "spendthrift" provision, which mandates each pension plan contain an anti-alienation provision that prohibits the assignment or alienation of pension benefits. 29 U.S.C. § 1056(d)(1). "Assignment or alienation" is defined as "[a]ny direct or indirect arrangement ... whereby a party acquires from a...