Lapp v Lapp

[*1] Lapp v Lapp 2010 NY Slip Op 51427(U) [28 Misc 3d 1222(A)] Decided on April 28, 2010 Supreme Court, Rensselaer County Zwack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 28, 2010
Supreme Court, Rensselaer County

Barrie A. Lapp, Plaintiff,

against

Donna M. Lapp n.k.a. DONNA M. HOWE, Defendant.



199877



Carolyn A. D'Agostino, Esq.

Attorney For Plaintiff

21 Everett Road Extension

Albany, New York 12205

Balzer & Leary, PLLC

Attorneys For Defendant

Gerald P. Leary, Esq., of counsel

275 1/2 Lark Street

Albany, New York 12210

Henry F. Zwack, J.

Plaintiff husband moves for post-judgment relief in this matrimonial proceeding, [*2]specifically an order amending the Qualified Domestic Relations Order (QDRO) dated February 6, 2001. Defendant wife opposes the motion.

A final judgment of divorce was granted in this proceeding on January 4, 2001. The judgment of divorce incorporated a marital settlement agreement, dated November 22, 2000, which provides in relevant part regarding the husband's pension at issue on this motion as follows: "The Husband's pension in the Engineer Upstate Pension of the International Union of Operating Engineers and Participating Employees shall be distributed between the parties under a Qualified Domestic Relations Order submitted to the Court at the time of divorce. The valuation date for determining the Wife's proportionate interest under the Maujuskas (sic) formula shall be the date of the commencement of this action." A QDRO was signed by the Court on February 6, 2001.

The husband now moves to amend the QDRO, seeking an order finding contributions to the husband's "cash balance account" after the date of commencement to be the husband's separate property. The husband argues that he became entitled to membership in the cash balance account plan after entry of the QDRO.

The summary plan description of the husband's pension plan at issue describes the fact that the maximum monthly pension benefit under this plan is $1,250.00. After an employee becomes entitled to receive the maximum monthly pension, future employer contributions to the plan after that date are deposited into a "Cash Balance Account Plan." The plan description notes that "[u]pon your retirement, the accumulated amount may be taken in a lump sum, transferred to an IRA or it can be annuitized and added to your monthly pension amount."

The husband notes that he is planning to retire and has been advised that he would need an amended order if the cash balance account contributions are to be excluded from distribution under the Majauskas formula. He argues that the present QDRO does not refer to the cash balance account because it did not exist at the time of the divorce and that because contributions to this account were made only after the divorce, that the account is nonmarital.

The wife opposes the motion, contending that the cash balance account is a component of the husband's retirement benefits in the pension plan at issue. The wife notes that while the marital settlement agreement could have excluded the wife from sharing in the husband's cash balance account, it did not do so. The wife notes that the husband had knowledge that the cash balance account was a component of the pension plan at issue and also had knowledge that it would go into effect at a future time once his pension benefits reached the monthly maximum. The wife argues that the husband's logic on this motion is contrary to the Majauskas formula and that he should not be permitted to effectively freeze the pension plan benefit as of the valuation date in the matrimonial proceeding.

The Court concurs with the wife and finds that the cash balance account plan is clearly a component of the Engineers Joint Pension Plan. The Court has considered the [*3]husband's arguments but does not agree that the cash balance account plan is a separate and distinct component from the husband's pension. As noted by the wife, if the cash balance account was a truly separate entity from the husband's pension, an Amended QDRO would not be required. The Court concurs with the wife that if the parties had intended to freeze the pension plan benefit, or had desired to exclude the Majauskas formula from being applied to the cash balance account plan upon the husband's retirement, that could have been provided for in the parties' settlement agreement. The Court concurs with the wife that the husband's argument on this motion are inconsistent with the Majauskas formula (see, e.g., DeLuca v DeLuca, 97 NY2d 139 [2001]; Damiano v Damiano, 97 AD2d 132 [2d Dep't 1983]). Based upon the foregoing, the Court denies plaintiff's motion for an Amended Qualified Domestic Relations Order.

Accordingly, it is

ORDERED, that plaintiff's motion is denied.

This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorneys for the defendant. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated:April 28, 2010

Troy, New York

________________________________________

Henry F. Zwack

Acting Supreme Court Justice