As we recently learned from the Fawzy case that we blogged on, parties have a right to private ordering and self determination of how they want to resolve their cases.  In Fawzy, the NJ Supreme Court held that people could arbitrate custody matters as long as certain procedural measures were taken.

Can people decide to submit an issue to an expert for a binding determination?  On March 10, 2010, in an unreported (non-precedential) decision issued by the Appellate Division in the case of Cully v. Cully, the question was answered affirmatively.

In this case, post-judgment litigation occur ed over the correct interpretation of a Property Settlement Agreement, more specifically, the correct form of a QDRO (the mechanism to divide an ERISA controlled retirement asset).  The judge suggested that the parties could elect to have a QDRO expert
review both parties’ QDROs and decide which QDRO is acceptable. The parties would split the expert’s fee, and the loser would reimburse the other party for counsel’s fees. The parties adopted the judge’s suggestion and agreed to be bound by the expert’s determination.

With certain modifications, the expert suggested adoption of the husband’s form of QDRO and it was ultimately entered as an Order of the Court.  The wife appealed arguing that the court should have held a hearing on the parties intent since the language in their Property Settlement Agreement was not entirely clear.

The Appellate Division affirmed the decision finding that the since the wife’s attorney advocated for and agreed to a binding determination by the expert, the wife could not then object when the decision did not go in her favor.  In fact, the Appellate Division specifically stated:

Our judicial process’s integrity would be damaged if defendant received a second bite at the apple because she is disappointed that the process, which her counsel agreed to and advocated for, resulted in a decision unfavorable to her.  Both the doctrines of invited error and judicial estoppel bar this court from considering defendant’s claims regarding the trial court’s decision to accept Ms. DeFuccio’s determination in this esoteric area of family law.

There are several lesson here.  (1) When you agree to submit a matter for a binding determination, you are stuck with that decision. (2) When you are dealing with the division of pensions, and there is any possibility for different interpretations/ways to divide it, it may make sense to hire the QDRO expert before the settlement so that the correct language is in the PSA; (3) in a similar vein, if possible, have the QDRO signed the same day that the divorce is entered.  Here, it appears as perhaps imprecise drafting was the problem.  Moreover, if the issue ultimately required a determination of intent, the decision to allow an expert, or anyone for that matter, to make a binding determination without first determining what the intent was, is a curious one.

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