Decisions of Interest

Former Wife Gets No Share of Death Benefits

The Court of Appeals of New York affirmed the determination of the Appellate Division that a judgment of divorce and qualified domestic relations order (QDRO) awarding an interest in the husband's pension plan did not automatically include pre-retirement death benefits available under the Plan; if the intent was to distribute such benefits, that should have been separately, and explicitly, stated. Kazel v. Kazel, No. 163, 2004 N.Y. LEXIS 3526 (11/18/04).

After 28 years of marriage, Robert and Sandra Kazel were divorced in 1991. In accordance with a final post-trial judgment distributing the marital property by, among other things, dividing the husband's pension plan between the parties pursuant to the equitable distribution formula established in Majauskas v. Majauskas, 61 N.Y.2d 481, 463 N.E.2d 15 (1984), the matrimonial court entered a QDRO directing that plaintiff-wife begin to receive a fixed percentage of her former husband's monthly allowance either at such time as he 'has retired from and is receiving a monthly allowance from his ' pension plan' or, at plaintiff's option, 'after the earlier to occur of the first date for payments allowed under the plan or after [he] reaches the earliest retirement age under the plan.'

Robert Kazel died in 2001 before reaching retirement age, and therefore never received any payments under the plan. Following his death, plaintiff sought to share with decedent's widow in pre-retirement death benefits payable under decedent's pension plan. Because the QDRO, by its plain terms, granted plaintiff an interest only in decedent's retirement annuity, and not in his death benefits, the plan administrator denied plaintiff any share of those benefits.

Plaintiff, conceding that the QDRO failed to grant her an interest in her former husband's death benefits, sought to modify or supplement the QDRO to award her a share of such benefits. Supreme Court denied the motion, concluding that plaintiff had failed to establish that the intent of the underlying divorce decree had been to award her survivor benefits. The Appellate Division, one Justice dissenting, affirmed and granted leave to appeal.

The Employee Retirement Income Security Act of 1974 (29 U.S.C. ' 1001 et seq.) (ERISA) and the Internal Revenue Code of 1986 (IRC) require all pension plans to provide survivor benefits to a participant's surviving spouse. Pursuant to a divorce, however, a QDRO can provide that a former spouse be treated as a surviving spouse to the exclusion of the actually surviving spouse if, as here, the decedent has remarried for purposes of ERISA and the joint and survivor rules of the IRC. Thus, a former spouse can overcome the right of an actually surviving spouse to receive a survivor annuity only if specifically awarded such benefits by the matrimonial court. Further, such an award must be reflected in a QDRO, evidenced by clear language designating the former spouse as the surviving spouse for purposes of the survivor benefits. The QDRO must reflect the intent of the underlying judgment of divorce, and must comply with its terms. Although the plaintiff here contended that the phrase 'pension plan,' as contained in the underlying judgment of divorce, could encompass both retirement annuities and survivor benefits, the court held that the law is otherwise. 'As we stated [in McCoy v. Feinman, 99 N.Y.2d 295, 785 N.E2d 714 (2002)] and underscore now, pension benefits and death benefits are two distinct matters. Both ERISA and the IRC treat them as separate interests, and we therefore hold that reference to a pension plan or pension benefits will not be deemed to include death benefits,' the Court of Appeals stated. It therefore affirmed the judgment of the lower court.

Divorcing Prisoners: Court Says When Limitations Period Starts to Run

Plaintiff's cause of action for divorce based on imprisonment ' brought pursuant to D.R.L. ' 210 ' accrued on the date defendant completed his third consecutive year of incarceration, but the five-year statute of limitations would not begin to run until the date he was released from prison, so it was not time barred. Covington v. Walker, 2004 N.Y. LEXIS 3491 (10/29/04).

Plaintiff and defendant have both been in prison since the mid-80s for the murder and robbery of a cab driver. On April 10, 2000, plaintiff commenced this action for divorce on the ground that defendant has been confined for a period of three or more consecutive years after their marriage. In opposition, defendant argued that the five-year limitations period began to run from the end of his third continuous year of incarceration, and urged that the action was time-barred as it was commenced long after his eighth successive year in prison. In fact, defendant had been incarcerated for over 16 years at the time the action was commenced. Plaintiff responded that accrual of this cause of action for divorce is properly measured from any time after three years of continuous incarceration up until the date on which defendant is released from prison and, therefore, her action was timely.

Supreme Court dismissed plaintiff's action on summary judgment. A divided Appellate Division affirmed, the majority concluding that 'the imprisonment ground for divorce arose once the defendant had been incarcerated for three years, a date which is more than five years before the commencement of this action.' Two dissenting Justices held that 'the imprisonment ground is a continuing ground which terminates upon the imprisoned person's release from prison.' Plaintiff appealed as of right from the Appellate Division order based on the two-Justice dissent. The Court of Appeals agreed with the dissenters and reversed.

Noting that ' 170 states a limitations period but fails to set out from what date it begins to run, and also that the legislative purpose in implementing this ground for divorce was to save people from having to be tied to a marriage that offers no financial or emotional support, the Court of Appeals held that a 'cause of action for divorce based on the ground of imprisonment continues to arise anew for statute of limitations purposes on each day the defendant spouse remains in prison for 'three or more consecutive years' until the defendant is released.'

Emancipation Does Not Terminate College-Expense Payment Agreement

Emancipation of a child did not terminate her parents' obligation to pay college expenses under the parties' agreement, although it did terminate other obligations under the agreement, and a finding of contempt of judgment of divorce required a hearing. Lamb v. Amigone, 2004 N.Y. App. Div. LEXIS 13964 (4^th Dept. 11/19/04) (Pigott, P.J., Scudder, Kehoe, Lawton and Hayes, JJ.).

Without conducting a hearing, Supreme Court, Erie County, found the appellant in contempt of court for failing to pay portions of his maintenance and distributive award. The Fourth Department ordered a hearing on the issue, but also cited Gold v. Gold, 156 A.D.2d 874 when it agreed with the appellant/father that the lower court was incorrect when it improperly modified the parties' separation and property settlement agreement by ordering that the obligation of the parties to contribute toward the college expenses of their daughter terminated as of her emancipation. The emancipation provisions set forth in article VIII of the Agreement related only to child support, life insurance and medical and hospitalization insurance coverage, and did not pertain to the obligations of the parties concerning their daughter's college expenses set forth in article VII. That article stated that each party 'will contribute one-half (1/2) of the expense for the child to attend college' and that 'each of the parties agrees to be responsible for one-half (1/2) of [the] total expense on behalf of the child for a four (4)-year program.'

Former Wife Gets No Share of Death Benefits

The Court of Appeals of New York affirmed the determination of the Appellate Division that a judgment of divorce and qualified domestic relations order (QDRO) awarding an interest in the husband's pension plan did not automatically include pre-retirement death benefits available under the Plan; if the intent was to distribute such benefits, that should have been separately, and explicitly, stated. Kazel v. Kazel, No. 163, 2004 N.Y. LEXIS 3526 (11/18/04).

After 28 years of marriage, Robert and Sandra Kazel were divorced in 1991. In accordance with a final post-trial judgment distributing the marital property by, among other things, dividing the husband's pension plan between the parties pursuant to the equitable distribution formula established in Majauskas v. Majauskas , 61 N.Y.2d 481, 463 N.E.2d 15 (1984), the matrimonial court entered a QDRO directing that plaintiff-wife begin to receive a fixed percentage of her former husband's monthly allowance either at such time as he 'has retired from and is receiving a monthly allowance from his ' pension plan' or, at plaintiff's option, 'after the earlier to occur of the first date for payments allowed under the plan or after [he] reaches the earliest retirement age under the plan.'

Robert Kazel died in 2001 before reaching retirement age, and therefore never received any payments under the plan. Following his death, plaintiff sought to share with decedent's widow in pre-retirement death benefits payable under decedent's pension plan. Because the QDRO, by its plain terms, granted plaintiff an interest only in decedent's retirement annuity, and not in his death benefits, the plan administrator denied plaintiff any share of those benefits.

Plaintiff, conceding that the QDRO failed to grant her an interest in her former husband's death benefits, sought to modify or supplement the QDRO to award her a share of such benefits. Supreme Court denied the motion, concluding that plaintiff had failed to establish that the intent of the underlying divorce decree had been to award her survivor benefits. The Appellate Division, one Justice dissenting, affirmed and granted leave to appeal.

The Employee Retirement Income Security Act of 1974 (29 U.S.C. ' 1001 et seq.) (ERISA) and the Internal Revenue Code of 1986 (IRC) require all pension plans to provide survivor benefits to a participant's surviving spouse. Pursuant to a divorce, however, a QDRO can provide that a former spouse be treated as a surviving spouse to the exclusion of the actually surviving spouse if, as here, the decedent has remarried for purposes of ERISA and the joint and survivor rules of the IRC. Thus, a former spouse can overcome the right of an actually surviving spouse to receive a survivor annuity only if specifically awarded such benefits by the matrimonial court. Further, such an award must be reflected in a QDRO, evidenced by clear language designating the former spouse as the surviving spouse for purposes of the survivor benefits. The QDRO must reflect the intent of the underlying judgment of divorce, and must comply with its terms. Although the plaintiff here contended that the phrase 'pension plan,' as contained in the underlying judgment of divorce, could encompass both retirement annuities and survivor benefits, the court held that the law is otherwise. 'As we stated [in McCoy v. Feinman , 99 N.Y.2d 295, 785 N.E2d 714 (2002)] and underscore now, pension benefits and death benefits are two distinct matters. Both ERISA and the IRC treat them as separate interests, and we therefore hold that reference to a pension plan or pension benefits will not be deemed to include death benefits,' the Court of Appeals stated. It therefore affirmed the judgment of the lower court.

Divorcing Prisoners: Court Says When Limitations Period Starts to Run

Plaintiff's cause of action for divorce based on imprisonment ' brought pursuant to D.R.L. ' 210 ' accrued on the date defendant completed his third consecutive year of incarceration, but the five-year statute of limitations would not begin to run until the date he was released from prison, so it was not time barred. Covington v. Walker, 2004 N.Y. LEXIS 3491 (10/29/04).

Plaintiff and defendant have both been in prison since the mid-80s for the murder and robbery of a cab driver. On April 10, 2000, plaintiff commenced this action for divorce on the ground that defendant has been confined for a period of three or more consecutive years after their marriage. In opposition, defendant argued that the five-year limitations period began to run from the end of his third continuous year of incarceration, and urged that the action was time-barred as it was commenced long after his eighth successive year in prison. In fact, defendant had been incarcerated for over 16 years at the time the action was commenced. Plaintiff responded that accrual of this cause of action for divorce is properly measured from any time after three years of continuous incarceration up until the date on which defendant is released from prison and, therefore, her action was timely.

Supreme Court dismissed plaintiff's action on summary judgment. A divided Appellate Division affirmed, the majority concluding that 'the imprisonment ground for divorce arose once the defendant had been incarcerated for three years, a date which is more than five years before the commencement of this action.' Two dissenting Justices held that 'the imprisonment ground is a continuing ground which terminates upon the imprisoned person's release from prison.' Plaintiff appealed as of right from the Appellate Division order based on the two-Justice dissent. The Court of Appeals agreed with the dissenters and reversed.

Noting that ' 170 states a limitations period but fails to set out from what date it begins to run, and also that the legislative purpose in implementing this ground for divorce was to save people from having to be tied to a marriage that offers no financial or emotional support, the Court of Appeals held that a 'cause of action for divorce based on the ground of imprisonment continues to arise anew for statute of limitations purposes on each day the defendant spouse remains in prison for 'three or more consecutive years' until the defendant is released.'

Emancipation Does Not Terminate College-Expense Payment Agreement

Emancipation of a child did not terminate her parents' obligation to pay college expenses under the parties' agreement, although it did terminate other obligations under the agreement, and a finding of contempt of judgment of divorce required a hearing. Lamb v. Amigone , 2004 N.Y. App. Div. LEXIS 13964 (4^th Dept. 11/19/04) (Pigott, P.J., Scudder, Kehoe, Lawton and Hayes, JJ.).

Without conducting a hearing, Supreme Court, Erie County, found the appellant in contempt of court for failing to pay portions of his maintenance and distributive award. The Fourth Department ordered a hearing on the issue, but also cited Gold v. Gold, 156 A.D.2d 874 when it agreed with the appellant/father that the lower court was incorrect when it improperly modified the parties' separation and property settlement agreement by ordering that the obligation of the parties to contribute toward the college expenses of their daughter terminated as of her emancipation. The emancipation provisions set forth in article VIII of the Agreement related only to child support, life insurance and medical and hospitalization insurance coverage, and did not pertain to the obligations of the parties concerning their daughter's college expenses set forth in article VII. That article stated that each party 'will contribute one-half (1/2) of the expense for the child to attend college' and that 'each of the parties agrees to be responsible for one-half (1/2) of [the] total expense on behalf of the child for a four (4)-year program.'