| Denaro v Denaro |
| 2011 NY Slip Op 04409 [84 AD3d 1148] |
| May 24, 2011 |
| Appellate Division, Second Department |
| Susan M. Denaro, Respondent, v Robert J. Denaro,Appellant. |
—[*1] James L. Rohrig, Tuckahoe, N.Y., for respondent.
In a matrimonial action in which the parties were divorced by judgment entered July 2, 1997,the defendant former husband appeals (1) from an order of the Supreme Court, Rockland County(Garvey, J.), dated July 9, 2010, which granted the plaintiff former wife's application to enforceso much of a stipulation of settlement, which was incorporated but not merged into the judgmentof divorce, as entitled her to a portion of his pension rights to the extent of issuing a qualifieddomestic relations order, and denied his motion, inter alia, to vacate that provision of thestipulation of settlement, and (2), as limited by his brief, from so much of an order of the samecourt dated October 7, 2010, which, in effect, upon reargument, adhered to the priordetermination.
Ordered that the appeal from the order dated July 9, 2010, is dismissed, as that order wassuperseded by the order dated October 7, 2010, in effect, made upon reargument; and it is further,
Ordered that the order dated October 7, 2010, is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff former wife and the defendant former husband, who was a police officeremployed by the New York City Police Department (hereinafter the NYPD), were married in1981. Sixteen years later, by a judgment entered July 2, 1997, they were granted an uncontesteddivorce. In a stipulation and agreement of settlement (hereinafter the stipulation), which wasincorporated but not merged into the judgment of divorce, the parties agreed that the plaintiffwould be entitled to a certain percentage of the marital portion of the defendant's policeretirement benefits. The parties acknowledged in the stipulation that a valuation of those benefitshad been performed, and they agreed that that valuation would "be utilized to prepare a QualifiedDomestic Relations Order to be submitted to the Court as soon as practicable after the Judgmentof Divorce is signed." No qualified domestic relations order (hereinafter QDRO) (see 29USC § 1056 [d] [3] [B] [ii]) was submitted at that time. The defendant retired from theNYPD in 2003, after 20 years of service, and he began collecting his pension. In January 2010the plaintiff [*2]submitted a proposed QDRO to the SupremeCourt, requesting the Supreme Court to enforce the stipulation to the extent of issuing anappropriate QDRO. The defendant then moved, inter alia, to vacate the retirement provision ofthe stipulation.
The Supreme Court granted the plaintiff's application and denied the defendant's motion,inter alia, to vacate the retirement provision of the stipulation. The defendant then moved forleave to reargue, and the Supreme Court, in effect, upon reargument, adhered to its priordetermination.
Contrary to the defendant's contention, the statute of limitations does not bar issuance of theQDRO. "[M]otions to enforce the terms of a stipulation of settlement are not subject to statutesof limitation" (Bayen v Bayen, 81 AD3d 865, 866 [2011]; see Fragin v Fragin, 80AD3d 725 [2011]; cf. Woronoff v Woronoff, 70 AD3d 933 [2010]). "[B]ecause a QDROis derived from the bargain struck by the parties at the time of the judgment of divorce, there isno need to commence a separate 'action' in order for the court to formalize the agreementbetween the parties in the form of a QDRO" (Duhamel v Duhamel, 4 AD3d 739, 741[2004]). Indeed, our Court has expressly held that an application or motion for the issuance of aQDRO is not barred by the statute of limitations (see Bayen v Bayen, 81 AD3d at866-867).
The defendant also contends that the plaintiff's failure to submit the QDRO to the Courtwithin 60 days of entry of the divorce judgment (see 22 NYCRR 202.48) barred itsissuance thereafter. The defendant's contention is without merit because that court rule does notapply to a QDRO, which is merely a mechanism to effectuate payment of a party's share in aretirement plan (see 29 USC § 1056 [d] [3] [K]; McCoy v Feinman, 99NY2d 295, 304 [2002]; Duhamel v Duhamel, 4 AD3d at 741). The plaintiff's right to hershare of the defendant's pension was created by the stipulation and the judgment of divorce, andit was not abandoned when the QDRO was not filed within 60 days.
We also reject the defendant's claim that the doctrine of laches bars the plaintiff's entitlementto the QDRO. Invocation of laches requires a showing of both delay and prejudice (seeSkrodelis v Norbergs, 272 AD2d 316, 316-317 [2000]). The delay in submitting a QDRO forexecution was certainly lengthy, but the defendant has not shown any prejudice to himselfresulting from the plaintiff's delay (see Beiter v Beiter, 67 AD3d 1415, 1416 [2009];Koplow v Koplow, 260 AD2d 353, 354 [1999]; cf. Lacorazza v Lacorazza, 47AD3d 897, 898-899 [2008]).
Finally, we reject the defendant's claim that the plaintiff waived her right to her share of thedefendant's retirement benefits. The plaintiff's delay in submitting the QDRO to the SupremeCourt did not evince an intent to waive her rights. Waiver does not result from negligence,oversight, or inattention, and it may not be inferred merely from silence (see Haberman vHaberman, 216 AD2d 525, 527 [1995]; Messina v Messina, 143 AD2d 735 [1988];cf. Rivers v Rivers, 35 AD3d 426, 428 [2006]). Dillon, J.P., Balkin, Eng and Roman, JJ.,concur.