| Berardi v Berardi |
| 2008 NY Slip Op 07203 [54 AD3d 982] |
| September 30, 2008 |
| Appellate Division, Second Department |
| Jeanne M. Berardi, Respondent, v Joseph P. Berardi,Appellant. |
—[*1] Raymond E. Kerno, Mineola, N.Y., for respondent.
In a matrimonial action in which the parties were divorced by judgment entered August 6,1999, the defendant appeals (1), as limited by his brief, from so much of an order of the SupremeCourt, Nassau County (Stack, J.), dated June 19, 2007, as granted the plaintiff's motion to amenda qualified domestic relations order dated September 24, 2002, to add a provision entitling her toreceive her allocable share of the defendant's increased pension payments resulting from hisretirement status having been changed from a service retirement to an accident disabilityretirement, (2) from an amended qualified domestic relations order of the same court entered July31, 2007, and (3), as limited by his brief, from so much of an order of the same court datedNovember 20, 2007, as, upon granting his motion, in effect, for leave to reargue his opposition tothe plaintiff's motion, adhered to the original determination granting the plaintiff's motion.
Ordered that the appeal from the amended qualified domestic relations order entered July 31,2007, is dismissed, as no appeal lies as of right from a qualified domestic relations order (see Bernstein v Bernstein, 18 AD3d683, 683-684 [2005]; Gormley v Gormley, 238 AD2d 545, 546 [1997]); and it isfurther,
Ordered that the appeal from the order dated June 19, 2007, is dismissed, as the portion ofthe order appealed from was superseded by the order dated November 20, 2007, made uponreargument; and it is further,[*2]
Ordered that the order dated November 20, 2007, ismodified on the law, by deleting the provision thereof, in effect, upon reargument, adhering tothe original determination granting the plaintiff's motion in its entirety, and substituting therefor aprovision, upon reargument, vacating the order dated June 19, 2007, and thereupon, granting thatbranch of the motion which was to amend the qualified domestic relations order dated September24, 2002, by adding a provision entitling the plaintiff to receive her allocable share of thedefendant's disability pension for ordinary disability applying the applicable formula for theperiod up through and including July 7, 1998, and otherwise denying the motion; as so modified,the order dated November 20, 2007, is affirmed insofar as appealed from, the amended qualifieddomestic relations order entered July 31, 2007, is vacated, and the matter is remitted to theSupreme Court, Nassau County, for a hearing and/or further submissions, to determine the natureand status of the defendant's disability pension and the plaintiff's allocable share thereof, andthereafter, for the entry of an appropriate amended qualified domestic relations order inaccordance herewith; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff former wife and the defendant former husband were divorced in 1999 afterapproximately 18 years of marriage throughout which the defendant worked for the New YorkCity Police Department (hereinafter the NYPD). Pursuant to the parties' stipulation of settlementdated March 26, 1999 (hereinafter the stipulation), which was incorporated but not merged intothe judgment of divorce entered August 6, 1999, the plaintiff was entitled to one half of thedefendant's "pension, disability payment, variable supplement and 457 Fund with theNew York City Police Department applying the applicable formula for the period up through andincluding July 7, 1998" (emphasis added).
After the divorce, the defendant continued working for the NYPD. However, in 2001, hesustained a significant lung ailment as a result of the September 11, 2001, rescue and recoveryoperations at the World Trade Center and Staten Island Landfill Recovery sites.
Subsequent thereto, on October 3, 2002, a qualified domestic relations order (hereinafter theoriginal QDRO) was entered upon the stipulation, which provided, inter alia, that when thedefendant retires from his job as a New York City Police Officer, "and is actually receiving aretirement allowance from the New York City Police Pension Fund, the said New York CityPolice Pension Fund, in accordance with the Equitable Distribution Law, is directed topay to the [plaintiff] from [the defendant's] retirement allowance 50% of the [defendant's]retirement based on the accrued benefit which the [defendant] had accrued up to July 7, 1998,without taking into account salary increases and additional service earned after July 7, 1998. Theterm 'Retirement Allowance' is [sic] used herein shall be deemed to include any annuityand lump sum payment as well as any supplemental retirement allowance which is paid by thesaid New York State and Local Retirement Systems to [the defendant]" (emphasis added). Theoriginal QDRO was inconsistent with the stipulation insofar as it did not include any provisionfor a disability pension or incorporate the phrase "applicable formula" as the means ofdistributing the defendant's pension.
When the defendant retired on December 31, 2002, after more than 20 years of service, heapplied for accident disability retirement benefits in light of his disability for injuries resultingfrom his work at the World Trade Center and Staten Island Landfill Recovery sites. Meanwhile,he and the plaintiff began to receive pension benefits as a "Service Retirement" based on hisyears of service with the NYPD. Subsequently, on October 13, 2004, the defendant's applicationfor accident disability retirement benefits was approved, and his entitlement thereto becameeffective in April [*3]2005, retroactive to his original retirementdate. His pension benefits were increased by 25% in accordance with Administrative Code of theCity of New York § 13-258.
Notably, the plaintiff's allocable share of the defendant's variable supplement benefits waseliminated as a result of the defendant's eligibility for accident disability benefits. Thereafter, theplaintiff contacted the Police Pension Fund of the City of New York (hereinafter the PPF)seeking her allocable share of the increase of the pension benefits derived from the defendant'saccident disability retirement. After being advised by the PPF that her share of the defendant'saccident disability pension would not attach without a modification of the original QDRO, theplaintiff moved to amend the original QDRO to include the defendant's disability paymentspayable pursuant to the applicable formula embodied in Majauskas v Majauskas (61NY2d 481, 490 [1984]). By order of the Supreme Court, Nassau County, dated June 19, 2007,the motion was granted. Subsequently, upon reargument, in an order of the same court datedNovember 20, 2007, the court adhered to the original determination granting the motion. Thedefendant appeals. We modify the order dated November 20, 2007.
"[I]nasmuch as a portion of [a spouse's] ordinary disability pension represents deferredcompensation related to length of employment occurring during the marriage, it constitutesmarital property subject to equitable distribution" (Dolan v Dolan, 78 NY2d 463,464-465 [1991]; see Olivo v Olivo, 82 NY2d 202, 207 [1993]; Majauskas vMajauskas, 61 NY2d at 490). However, "[t]o the extent that a disability pension constitutescompensation for personal injuries, that compensation is separate property which is not subject toequitable distribution" (Mylett v Mylett, 163 AD2d 463, 464-465 [1990]; see Link vLink, 304 AD2d 800, 801 [2003]; Beshara v Beshara, 281 AD2d 577, 578 [2001];see also Domestic Relations Law § 236 [B] [5] [b]). Such is the case with anaccident disability pension under the Administrative Code of the City of New York §13-258 which is based on physical or mental incapacity proximately resulting from city service,not length of service (see Dolan v Dolan, 78 NY2d at 467; McNelis v McNelis, 6 AD3d 673[2004]; West v West, 115 AD2d 601, 602 [1985]).
Applying these principles to the matter at bar, the Supreme Court's adherence, uponreargument, to its original determination granting the plaintiff's motion, was only partiallycorrect. Although the court properly granted the plaintiff's motion to amend the original QDROto conform to the stipulation by adding a provision for a disability pension and reflecting theparties' agreement to apply the "applicable formula" under Majauskas v Majauskas (61NY2d 481 [1984]), the court should not have made such amendment without differentiatingbetween ordinary disability and accident disability.
When the distribution of pension benefits between former spouses is accomplished through aQDRO obtained pursuant to a stipulation, such QDRO "can convey only those rights to whichthe parties stipulated as a basis for the judgment" (McCoy v Feinman, 99 NY2d 295, 304[2002]; see Condon v Condon, 46AD3d 596, 597 [2007]; Duhamel vDuhamel, 4 AD3d 739, 741 [2004]). Where a QDRO is inconsistent with the provisionsof a stipulation or judgment of divorce, courts possess the authority to amend the QDRO toaccurately reflect the provisions of the stipulation pertaining to the pension benefits (seeCondon v Condon, 46 AD3d at 598). A court cannot issue a QDRO more expansive or"encompassing rights not provided in the underlying stipulation" (McCoy v Feinman, 99NY2d at 304; see Von Buren v Von Buren, 252 AD2d 950, 950-951 [1998]; DeGaust v De Gaust, 237 AD2d 862, 862-863 [1997]).
While it is clear from the stipulation that the plaintiff was entitled to receive a percentage ofthe defendant's ordinary disability benefits for the relevant period, there is no provision for [*4]entitlement to accident disability benefits, which representcompensation for personal injuries and remain the defendant's separate property not subject toequitable distribution (see McNelis v McNelis, 6 AD3d at 674; Link v Link, 304AD2d at 801; Beshara v Beshara, 281 AD2d at 578; Mylett v Mylett, 163 AD2dat 464-465; see also Domestic Relations Law § 236 [B] [5] [b]; cf. Pulaski v Pulaski, 22 AD3d820, 821 [2005] [based upon the express language of the parties' stipulation, they opted outof the operation of case law construing Domestic Relations Law § 236 (B) (3)]; O'Beirne v O'Beirne, 5 AD3d 572,573 [2004] [the parties specifically provided in their stipulation of settlement that "ordinary oraccident disability" shall be deemed pension benefits for purposes of the QDRO benefits to thenonpayee spouse]). Absent a provision in the stipulation specifically awarding the plaintiffaccident disability benefits, the Supreme Court could not issue a more expansive QDRO (seeMcCoy v Feinman, 99 NY2d at 304; Von Buren v Von Buren, 252 AD2d at950-951; De Gaust v De Gaust, 237 AD2d at 862-863).
Since the original QDRO was inconsistent with the stipulation upon which it was based, thestipulation controls and the original QDRO must be modified accordingly (see Condon vCondon, 46 AD3d at 598). The record before us is insufficient to enable this Court toproperly amend the QDRO to reflect what portion, if any, of the defendant's benefits constitutemarital property subject to equitable distribution rather than compensation for personal injuries(see West v West, 101 AD2d 834 [1984]). Further, any modification of the originalQDRO will require the approval of the PPF (see Condon v Condon, 46 AD3d at 598).Therefore, a hearing by, and/or further submissions to, the Supreme Court, Nassau County, isrequired for purposes of determining the nature and status of the defendant's pension and theplaintiff's allocable share thereof, and the Supreme Court should thereafter enter an appropriateamended QDRO in accordance herewith.
The defendant's remaining contentions are without merit. Prudenti, P.J., Skelos, Covello andBalkin, JJ., concur.