JoAnn P. v Nicholas V.
Annotate this CaseDecided on November 23, 2010
Suffolk County Ct
JoAnn P., Plaintiff(s)
against
Nicholas V., Defendant(s)
30158/06
Suzanne G. Parker Esq
Attorney for Plaintiff
99 Powerhouse Rd Ste 211
Roslyn Hts NY 11577
516-626-7776
Fred M. Schwartz Esq
Attorney for Defendant
317 Middle Country Rd Ste 5
Smithtown NY 11787
631-724-2300
Andrew G. Tarantino, J.
This case was transferred to this Court for trial pursuant to Civ. Pract. Law
and Rules §325(d). Plaintiff commenced this action by Summons and Complaint seeking
$12,424.50, and attorneys fees, for her share of the former spouse's pension payments which
were paid to the former spouse instead of to the Plaintiff. Defendant argued that the former wife
should have commenced the action against the pension administrators because Qualified
Domestic Relation Orders (QDROS) were entered and the administrators failed to forward the
former wife's share of the disbursements directly to her. A two-hour Bench Trial was conducted
at which only the Plaintiff and Defendant testified. The parties consented to the entry of the
Divorce Judgment, Stipulation of Settlement and QDRO orders being admitted into evidence.
This Court reserved decision.
THE FACTS
On January 27, 1989, after 15 years
of marriage, the parties were divorced by judgment based [*2]upon the grounds of cruel and inhuman treatment. That judgment
incorporated, but did not merge, a written Stipulation of Settlement dated September 29, 1988.
The Stipulation of Settlement contained the following provisions:
The parties acknowledge that the husband is currently vested in a pension plan
provided by is [sic] employer, The Long Island Railroad. At the time the husband receives his
pension benefits, JOANN V. shall receive a portion of said benefits. [the agreement then set forth
the mathematical formula for calculating the Plaintiff's share].
The pension plan administrator will be advised of the existence of this agreement. The parties hereto agree to file a Qualified Domestic Relations Order.It is understood that, in the event either party shall prevail in an action for breach of this Agreement, the measure of damages shall include reasonable attorneys fees.
Three (3) QDROs were signed by the Supreme Court as follows:
January 5, 1994, for the Long Island Railroad Pension Plan and the Long Island Rail Road Company Plan [LIRR].
June 24, 1997, for the United States Railroad Retirement Board [RRB], and
June 24, 1997, for the Brotherhood of Locomotive Engineers Division 269 Pension Fund
[BLE].
Each party testified that they were not aware that Defendant's "pension" was
comprised of the four different plans. That accounted for the various plans not being itemized in
the 1988 Stipulation. Despite this, the QDROs were entered by the Supreme Court in accordance
with that Stipulation.
The Defendant retired October 1, 2005, and the LIRR and RRB plans became effective that date. The BLE plan only began payout status when Defendant reached 60 years of age in May 2010. In 2006, Plaintiff learned that her share of the payments was not being segregated by the administrators and, instead, the full monthly benefit went directly to the Defendant. Plaintiff immediately demanded her share from Defendant which he has continuously refused to pay. The plan administrators have since corrected the situation, and are paying the Plaintiff directly. However, Plaintiff did not receive nine (9) months of benefits which, instead, went to the Defendant.
At his Examination before Trial, Defendant testified as follows:
Q.You say you get $55,000 now. When you first got a check, was it $4,300, or was it more?
A.It was more.
MR. SCHWARTZ: Do you mean the first check for the first month? [*3]
Q.The first check for the first time — did you get more than $4,300?
A.Well, that's what I get now.
Q.What did you get originally?
A.It had to be more, because then she filed and I was — it was deducted out of my salary.
Q.How much more were you getting when you first retired?
A.Maybe 1,300, 1,350.
Q.And did you indicate to your employer that since there was an agreement on your part, that your wife would get money, that she should be getting that money?
A.Absolutely.
ANALYSIS
Neither party was charged in the agreement with preparing the QDROs. It was the wife's then attorney who prepared the documents and filed each with the Court. Neither party provided this Court with any documentary evidence of the actual amounts paid to the Defendant during the nine (9) month period to either prove or disprove that Plaintiff received her share. Plaintiff's claim could have failed but for the Defendant's admission during his EBT.
The object of the Retirement Equity Act (REA) was to better protect women who had contributed to their marriage's financial security through their work in home, anticipated sharing in pension income received upon husband's retirement, but were left inescapably dependent on their husband's earnings, at mercy of death or divorce. Kahn v. Kahn, 801 F. Supp. 1237 (S.D.N.Y.1992 ), aff'd, 2 F.3d 403. The entry of a QDRO is not a form of relief itself, but, rather, is a means to carry out the equitable distribution of marital property. Patricia A.M. v Eugene W.M., 24 Misc 3d 1012, 885 N.Y.S.2d 178 (Sup Ct, Erie County, 2009). The term "qualified domestic relations order" means a domestic relations order which creates or recognizes the existence of an alternate payee's right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan. 29 U.S.C.A. § 1056. If a plan fiduciary acts in accordance with part 4 of this subtitle [..] then the plan's obligation to the participant and each alternate payee shall be discharged to the extent of any payment made pursuant to such Act. Id.
This case demonstrates the very reason why QDROs exist, and why they are still necessary. The Plaintiff's shares of the pension plans were fixed in the Stipulation of Settlement which was not merged into the Judgment of Divorce. That same stipulation, not the QDRO, established the Defendant's debt and liability. Defendant's argument that the pension administrators were necessary parties is without merit. The facts in Patricia A.M. v Eugene W.M., supra, were so similar that Defendant in this case should have been aware that he had little or no defense to this action. That Court held that the former husband was liable for the ex-wife's share of the pension which was paid before the QDROs were filed. In this case, the Defendant received the ex-wife's shares of the pensions before the QDROs were effected [*4](no explanation was provided to account for the nine month period that the pension administrator distributed the full pension proceeds to the Defendant). This Court cannot ignore that Plaintiff's costs to litigate this issue, while awaiting for four (4) years for her day in court, were directly the result of Defendant's conduct. More egregious was the Defendant's acknowledgment in his EBT that the money was due his ex-wife, yet he continuously has refused to pay her.
The six (6) year statute of limitations started to accrue from the date Defendant received his first pension payment shortly after October 1, 2005. Plaintiff commenced this action in November 2006. Therefore this action was timely commenced.
By reason of the above, it is hereby
ADJUDGED, that Defendant NICHOLAS V., did breach the Stipulation of Settlement entered into September 29, 1988, when he failed to pay to the Plaintiff her share of the pension proceeds which he agreed to pay pursuant to that stipulation; and it is further
ADJUDGED, Plaintiff JOANN P. is entitled to reasonable attorney's fees by reason of the Defendant's frivolous defense; and it is hereby
ORDERED, that judgment be entered in favor of Plaintiff JOANN P. and against Defendant NICHOLAS V. in the amount of TWELVE THOUSAND FOUR HUNDRED TWENTY FOUR DOLLARS AND FIFTY CENTS ($12,424.50) together with statutory interest from January 1, 2007, and that Plaintiff have execution therefore; and it is further
ORDERED, that judgment be entered in favor of JOANN P. and against NICHOLAS V. in the amount of TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500.00) as and for reasonable attorney fees, and that Plaintiff have execution therefore. This constitutes the decision and order of the Court.
ENTER
_____________________________________
Judge
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