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March 10, 2026 Get Citation Alerts Download PDF Add Note

Ellen Z. Melick v. David R. Melick

New Jersey Superior Court Appellate Division

• Citations: None known
• Docket Number: A-1481-24

• Precedential Status: Non-Precedential

• Opinion

• Authorities (20)

• Cited By (0)

• Summaries (0)

• Similar Cases (3.4K)

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Combined 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NOT FOR PUBLICATION WITHOUT THE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-1481-24

ELLEN Z. MELICK, a/k/a
ELLEN Z. GERBER,
ELLEN Z. SHERRER,

Plaintiff-Respondent,

v.

DAVID R. MELICK,

Defendant-Appellant.

---

Submitted February 24, 2026 – Decided March 10, 2026

Before Judges Susswein and Chase.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Warren County,
Docket No. FM-21-0083-95.

Shaw Divorce & Family Law, LLC, attorneys for
appellant (Andrew M. Shaw, on the briefs).

Laemers Murphy & Neggia, LLC, attorneys for
respondent (Doreen L. Neggia, on the brief).

PER CURIAM
In this post-judgment matrimonial matter, defendant David Melick

appeals from a January 7, 2025, Family Division order. The court granted

plaintiff Ellen Melick's motion to enforce the parties' 1997 Final Judgment of

Divorce ("FJOD") which awarded her a coverture portion of defendant's 401K

plan ("Plan"), through a Qualified Domestic Relations Order ("QDRO"). We

affirm.

I.

The parties were married in 1977 and divorced in 1997. The FJOD

awarded plaintiff fifty percent of the value of defendant's Plan, calculated from

the date of marriage through the filing of the divorce complaint. Defendant

agreed to cooperate in transferring the money.

In 1999, the court entered an order compelling defendant to complete

necessary paperwork to divide his Plan per the FJOD. Despite this, the parties

never completed the QDRO. In 2010, defendant rolled over his Plan into an

IRA in his sole name.

Defendant retired at the end of 2021. Plaintiff retained counsel in early

2022 to assist with effectuating the division of the Plan. After realizing that

defendant's former employers no longer held the records of defendant's Plan,

plaintiff's attorney asked defendant if he had withdrawn or transferred the funds.

A-1481-24
2
Defendant responded confirming the employer his Plan was with and responding

"N/A" to whether he withdrew or transferred his funds. Following this,

plaintiff's attorney contacted the retirement plan manager of one of defendant's

former employers who responded that defendant no longer had a balance in his

Plan.

After defendant provided signed authorizations, the following information

regarding defendant's Plan was determined: full distribution of his account

balance occurred in 2010; the gross amount of this distribution was $188,342.66;

this payment was issued as a rollover to an IRA; the account balance in 1995

was $67,744.96 (plaintiff's one-half share would have been $33,872); and the

account balance in 1996 was $87,131.38.

Plaintiff then hired Pension Appraisers to complete an interest calculation

based on the $33,872 balance as of March 31, 1995. Based on the average

General Agreement on Tariffs and Trade ("GATT") method1, Pension

Appraisers found the total owed to plaintiff should be $117,642.

1
This method of interest calculation refers to a specific formula used to
calculate lump sum present values of certain retirement benefits in defined
benefit pension plans. It uses interest rates derived from the GATT and
mortality assumptions to determine the present value of future pension
payments. The interest rate used under the GATT method is based on the 30-
year Treasury bond rate. In 2006 the Pension Protection Act established a new

A-1481-24
3
In November 2024, plaintiff moved to enforce litigant's rights, seeking to

compel defendant to divide his Plan in accordance with the parties' FJOD along

with interest under GATT, attorney's fees, and other relief. On December 19,

2024, defendant cross-moved to deny plaintiff's motion in its entirety.

Alternatively, defendant sought to limit plaintiff's entitlement to $35,000,

representing the maximum potential value of plaintiff's share of the Plan as of

the cut-off date set forth in the FJOD. Defendant also requested that, if the trial

court determined plaintiff was entitled to interest, such interest be limited to

simple interest calculated in accordance with Rule 4:42-11, rather than GATT.

After the court heard oral argument, it entered a written opinion

determining that the doctrine of laches was inapplicable. The court found

plaintiff did not fail to assert a right within a reasonable time because plaintiff

alleged that her attorney, who was retained at the time of her divorce, advised

her that she would not be able to receive her share of defendant's retirement plan

until defendant retired. Moreover, the court noted that when defendant retired

at the end of 2021, plaintiff immediately retained counsel in early 2022 to assist

with effectuating the division of the Plan. The court also stated that there was

framework for calculating lump-sum present values, replacing the GATT
method.
A-1481-24
4
no prejudice to defendant as he did not contend or establish that he changed his

position as a result of the delay. Lastly, the court noted that "[p]laintiff

continues to seek the distribution of the [Plan] funds, while [d]efendant

continues to hold these funds in an IRA account."

After ruling that plaintiff was entitled to her share of the coverture portion,

the court then moved to determine if she was entitled to interest. The court

outlined our state's policy of favoring enforcement of marital agreements and

the basic principles of fairness and equity. The court then wrote:

Here, the parties' JOD clearly states that the principal
amount that Plaintiff is entitled to is calculated from the
date of the parties' marriage to the date of the filing of
the divorce complaint. The Plaintiff certifies that the
principal amount of Plaintiff's share of Defendant's
401K is $33,872. Defendant certifies that the
maximum amount of the principal is $35,000. Both
parties certify that the exact amount of interest that the
Plaintiff's share accrued since that time is not able to be
determined. The Plaintiff's share was rolled over into a
different IRA when Defendant changed employers and
co-mingled with other funds. Defendant certifies that
financial statements are not available to trace the funds.

. . . . At the time of the divorce, the Plaintiff bargained
for 50% of Defendant's 401K. Were the distribution to
have taken place at that time, the amount would have
accrued interest. Certainly, the Plaintiff's share has
accrued interest while remaining in Defendant's IRA
account. If the court were to grant Defendant's request
that only $35,000 be awarded to the Plaintiff,
Defendant would be unjustly enriched by the

A-1481-24
5
significant amount of interest that has accrued on
Plaintiff's share. This is an inequitable result based
upon a delay that was prolonged by the inaction of both
parties. As a threshold matter, the court finds that
Plaintiff is entitled to interest accrued on her share of
the 401K. Therefore, Defendant's request to limit the
amount owed to Plaintiff to $35,000 is denied.

The court determined that defendant's request to give interest under Rule

4:42-11 was more equitable than the plaintiff's preferred method of accruing

interest under GATT. As such, the court ordered $107,406 to be transferred to

plaintiff.

This appeal follows.

II.

It is well established that reviewing courts accord substantial deference

on appeal to the decisions of Family Part judges. Cesare v. Cesare, 154 N.J.

394, 411-12 (1998); see also Pascale v. Pascale, 113 N.J. 20, 33 (1988). Given

the Family Part's special expertise, we owe deference to the court's findings in

such cases, and to the conclusions that logically flow from those findings.

Cesare, 154 N.J. at 412-13.

A court's decision to grant or deny enforcement of a matrimonial

agreement, including the entry of relief to secure compliance with equitable

distribution orders, is reviewed for abuse of discretion. Quinn v. Quinn, 225

A-1481-24
6
NJ. 34, 42-43 (2016). The application of laches "depends upon the facts of the

particular case and is a matter within the sound discretion of the trial court."

Mancini v. Twp. of Teaneck, 179 N.J. 425, 436 (2012) (quoting Garrett v. Gen.

Motors Corp., 844 F.2d 559, 562 (8th Cir. 1988)). We also review application

of the laches doctrine under the abuse of discretion standard. United States v.

Scurry, 193 N.J. 492, 504 (2008). So too is the denial of a plenary hearing,

which will be upheld unless the court abused its discretion by refusing to

consider genuinely disputed issues of material facts. Harrington v. Harrington,

281 N.J. Super. 39, 47 (App. Div. 1995).

III.

Defendant argues the court erred in not barring plaintiff's claim under the

doctrine of laches. We disagree.

Laches is an equitable doctrine, utilized to achieve fairness. Fox v.

Millman, 210 N.J. 401, 422 (2012). Laches arises from "the neglect, for an

unreasonable and unexplained length of time . . . to do what in law should have

been done." Lavin v. Hackensack Bd. of Educ., 90 N.J. 145, 151 (1982) (quoting

Atl. City v. Civil Serv. Comm'n, 3 N.J. Super. 57, 60 (App. Div. 1949)). The

doctrine bars "the prosecution of an equitable claim if the suitor has

inexplicably, inexcusably and unreasonably delayed pursuing a claim to the

A-1481-24
7
prejudice of another party." In re Est. of Thomas, 431 N.J. Super. 22, 30 (App.

Div. 2013) (citing Knorr v. Smeal, 178 N.J. 169, 180-81 (2003)); see also

Dorchester Manor v. Borough of New Milford, 287 N.J. Super. 163, 171-72

(Law Div. 1994), aff'd, 287 N.J. Super. 114 (App. Div. 1996). "The key factors

to be considered in deciding whether to apply the doctrine are the length of the

delay, the reasons for the delay, and the 'changing conditions of either or both

parties during the delay.'" Knorr v. Smeal, 178 N.J. at 181 (citing Lavin, 90 N.J.

at 152-53).

Neither the fact that the FJOD was silent as to which party had the

responsibility to effectuate the QDRO or failed to state a date certain for the

QDRO to be completed, negates plaintiffs right to her bargained-for share of

defendant's Plan. The silence opens the door for a court to determine the fairness

and equity of the facts specific to this matter.

Acknowledging that there was a long delay, the court reasoned that the

reason for the delay was in good faith. Plaintiff sought the advice of her prior

attorney over the years and believed that a QDRO could not be executed

immediately because she could not receive her share of defendant's account until

he retired. Although plaintiffs' delay in enforcing the FJOD stemmed from

mistaken belief in her understanding, it was reasonable. Moreover, the delay

A-1481-24
8
caused no prejudice to defendant. He retained control over the funds for over a

decade, never informing plaintiff of its depletion, and continued to accrue

interest on the account. "Here, defendant exhibited no prejudice flowing from

the delay. . . . Although he asserts that plaintiff should have moved for

enforcement of the provision earlier, he fails to explain his own neglect in

moving to extinguish the obligation during the same interval ." Hoff v. Hoff,

157 N.J. Super. 503, 509 (App. Div. 1978). Based on the specific facts present,

the court did not abuse its discretion in determining laches did not apply.

We are also unpersuaded by defendant's argument, raised for the first time

on appeal, that because plaintiff failed to seek enforcement of her right to the

QDRO for more than twenty years after the FJOD was entered she should be

barred from raising the claim under N.J.S.A. 2A:14-5. The rights of the parties

were established in the final judgment and remained enforceable even after years

of delay. Menake v. Menake, 348 N.J. Super. 442 (App. Div. 2002). The QDRO

does not create a new right or an independent cause of action; rather, it is the

procedural vehicle that effectuates the substantive rights previously established

in the divorce decree. Ross v. Ross, 308 N.J. Super. 132, 139-40 (App. Div.

1998). Plaintiff's interest in her defendant's retirement asset vested at divorce,

even though neither party prepared a QDRO to actually transfer the money until

A-1481-24
9
shortly after defendants' retirement. Thus, the absence of a QDRO did not affect

the enforceability of her claim.

We are also convinced that the court acted within its discretion when it

granted interest on the amount owed. Interest is awarded in accordance with

equitable principles, not as a penalty, but to make the injured party whole.

George H. Swatek, Inc. v. North Star Graphics, Inc., 246 N.J. Super. 281, 286-

87 (App Div 1991). The award lies within the sound discretion of the trial court

and should not be disturbed absent abuse. Graziano v. Grant, 326 N.J. Super.

328, 343 (App. Div. 1999).

It is clear public policy that equitable distribution is based on the theory

that marriage is a joint undertaking. While this does not presume that all assets

will be shared equally, it is fair and reasonable to presume that had a QDRO

been prepared, the plaintiff would receive the benefit of market increases on her

portion of the Plan. Interest restores plaintiff for two decades' deprivation of

her funds and prevents defendant's unjust enrichment. Thus, the court properly

awarded interest.

Once the court determined interest was equitable, it did so under Rule

4:42-11, the method that defendant requested. The purpose of interest under

Rule 4:42-11 is to ensure that a successful claimant is compensated for the loss

A-1481-24
10
of the ability to use money rightfully due. Litton Indus., Inc. v. IMO Indus.,

Inc., 200 N.J. 372, 390 (2009). The court was well within its discretion to award

interest under Rule 4:42-11, as the FJOD is silent as to the interest rate.

We also reject the defendant's contention that a plenary hearing was

required in the circumstances presented. A plenary hearing is not inexorably

required in every post-judgment matrimonial dispute. See R. 5:8-6 (requiring

plenary hearings in custody matters only where the contested issues are "genuine

and substantial"); Barblock v. Barblock, 383 N.J. Super. 114, 124 (App. Div.

2006) (no plenary hearing was required to authorize mother's relocation of her

children out of state, over the father's objection, where no material factual

disputes were demonstrated). Defendant has come forward with no evidence

showing that there were substantial facts in dispute that would alter the outcome.

It follows that the court engaged in a proper exercise of discretion when it

decided this dispute on the pleadings and certifications.

To the extent we have not addressed any other arguments, they lack

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

Affirmed.

A-1481-24
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