| Condon v Condon |
| 2007 NY Slip Op 09717 [46 AD3d 596] |
| December 11, 2007 |
| Appellate Division, Second Department |
| Kathleen Condon, Respondent, v Joseph Condon,Appellant. |
—[*1] Gerard A. Imperato, Brooklyn, N.Y., for respondent.
In a matrimonial action in which the parties were divorced by judgment dated July 31, 2000,the former husband appeals, by permission, as limited by his brief, from so much of a qualifieddomestic relations order of the Supreme Court, Kings County (Krauss, J.), dated April 11, 2006,as directed that the former wife receive a portion of his "retirement allowance" in accordancewith the formula set forth in Majauskas v Majauskas (61 NY2d 481 [1984]), and directedthat the retirement allowance include cost-of-living adjustments.
Ordered that the qualified domestic relations order is modified, on the law and the facts, bydeleting the provisions thereof directing that the former husband's retirement allowance bedivided in accordance with the formula devised in Majauskas v Majauskas (61 NY2d 481[1984]); as so modified, the qualified domestic relations order is affirmed insofar as appealedfrom, without costs or disbursements, and the matter is remitted to the Supreme Court, KingsCounty, for a hearing and/or further submissions, and thereafter, for substitution of provisionsconsistent with the parties' stipulation and complying with the applicable provisions andregulations of the New York State and Local Retirement System.
After approximately 24 years of marriage, the parties were divorced by judgment dated July31, 2000. The judgment incorporated, but did not merge, the parties' stipulation of settlement.[*2]
The parties' stipulation provided that the former wifewould be entitled to "a fifty percent (50%) interest in the husband's pension/retirement planmaintained with the New York State and Local Retirement System, including any interest orother increases in value attributable to her share, which shall hereafter be the wife's separateproperty and shall be paid over to the wife in accordance with the Qualified Domestic RelationsOrder referred to herein, but only to the extent of pension benefits accumulated from the date ofmarriage to September 23, 1993 [i.e, the date that the divorce proceeding was commenced, aperiod of 17 years minus 2 days (hereinafter 17 years)]". The parties further stipulated that thequalified domestic relations order (hereinafter QDRO) would "provide for immediate transferand/or assignment to the wife of her fifty percent (50%) interest (date of marriage to September1993) in the Plan." The QDRO submitted by the former wife, and signed by the court, provided,inter alia, that the parties would share in the former husband's pension benefits pursuant to theMajauskas formula (see Majauskas v Majauskas, 61 NY2d 481 [1984]).Specifically, it stated that when the former husband retired and started to receive his "retirementallowance," the former wife would be entitled to receive 50% of the former husband's pensionmultiplied by a fraction. The numerator of the fraction would be the time period during whichservice credits were accrued during the marriage (204 months), and the denominator would bethe total number of months of the former husband's service credit in the New York State andLocal Retirement System (hereinafter the pension plan).
"A proper QDRO obtained pursuant to a stipulation of settlement can convey only thoserights to which the parties stipulated as a basis for the judgment" (McCoy v Feinman, 99NY2d 295, 304 [2002]). We agree with the former husband's contention that the distribution ofhis pension as ordered in the QDRO differs from the distribution of the pension as stated in theparties' stipulation of settlement.
The plain language of the relevant provision of the stipulation of settlement governing theformer husband's pension states that the former wife shall be entitled to a 50% interest in theretirement plan as calculated from the date of marriage through the date of separation, that is,50% of the benefits earned during the relevant 17-year period the former husband was workingand was a member of the pension plan. However, the subject QDRO directs that the former wifereceive a percentage of the former husband's pension based upon his final pension benefits, andis not limited to her interest in it as provided for in the stipulation.
When, as here, the QDRO conflicts with the stipulation of settlement upon which it wasbased, the stipulation of settlement controls, and the QDRO must be modified accordingly. Itfurther appears that the parties will require some type of statement as to the benefits the formerwife is entitled to from the pension plan, as well as the approval by the pension plan, before theQDRO can be properly modified. Since the record before us is insufficient to enable this Court toproperly modify the QDRO, a hearing by, and/or further submissions to, the Supreme Court,Kings County, is required.
Contrary to the former husband's claim, the former wife is entitled to share in cost-of-livingadjustments in retirement benefits as long as the increases are limited to her portion of thepension (see Pagliaro v Pagliaro, 31AD3d 728 [2006]). Schmidt, J.P., Rivera, Florio and Balkin, JJ., concur.