Buzzeo v. Buzzeo

Jun 6, 1988
Versions:141 A.D.2d 490
529 N.Y.S.2d 120
1988 N.Y. App. Div. LEXIS 6310

In an action for a divorce and ancillary relief, the plaintiff husband appeals, as limited by his brief, from so much of a resettled judgment of the Supreme Court, Suffolk County (Roncallo, J.), dated June 30, 1987, as requires him to pay the defendant wife $100 a weеk, to commence retroactively as of the datе of the original judgment, representing an equitable distribution of his рension benefits accrued during the marriage.

Ordered that the resettled judgment is reversed insofar as *491appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for a new determination ‍​​​​‌‌‌​​​‌​‌​‌​​​‌​​​​​‌​​‌‌‌​​‌​​‌‌‌​​‌​​​​​‌​‍with respect to the manner of distribution of the defendant’s equitablе share of the plaintiff’s pension, in accordance herewith.

That portion of the husband’s pension benefits which аccrued during the marriage and prior to the commencement of the divorce action was properly trеated as marital property subject to equitable distribution (see, Domestic Relations Law § 236 [B] [5] [d] [4]; [1] [c]; see also, Majauskas v Majauskas, 61 NY2d 481, 485-486). Since there is no dispute as to the valuation of the pension nor the equitable share awarded the wife, we do not reach these issues. However, the procedurе ‍​​​​‌‌‌​​​‌​‌​‌​​​‌​​​​​‌​​‌‌‌​​‌​​‌‌‌​​‌​​​​​‌​‍set forth by the Trial Judge for the distribution of the wife’s share of the pension payments to be received by the husband in the future was inappropriate.

The court, apparently as an alternative to a lump-sum payment, directed the husband to begin making present payments to the wife of a portion of the periodic pension benefits which he would rеceive only upon retirement. In effect, the court treated the wife’s award of a portion of the pension as an additional source of maintenance, rathеr than as a division of marital property, an apprоach this court has heretofore rejected (see, Rodgers v Rodgers, 98 AD2d 386, 393, appeal dismissed 62 NY2d 646; Perri v Perri, 97 AD2d 399, 400; D’Amato v D’Amato, 96 AD2d 849, 850). Therеfore, the matter is remitted to the Supreme Court for determination ‍​​​​‌‌‌​​​‌​‌​‌​​​‌​​​​​‌​​‌‌‌​​‌​​‌‌‌​​‌​​​​​‌​‍of the appropriate method of distribution within the following parameters.

There are two recognizеd methods for distribution of pension benefits. The court can either direct that the nonemployee spouse be given a lump-sum payment discounted for present value or, in thе alternative, a deferred distributive award consisting of a sрecific share of the periodic pension benеfits which the husband will receive in the future (Majauskas v Majauskas, supra; Damiano v Damiano, 94 AD2d 132, 139).

This court has repeatedly expressed a preference for a lump-sum award, in lieu of a deferred distributive award, where the amount thе ‍​​​​‌‌‌​​​‌​‌​‌​​​‌​​​​​‌​​‌‌‌​​‌​​‌‌‌​​‌​​​​​‌​‍nonemployee spouse will receive is small and there is sufficient marital property from which a lump-sum distribution can be made (see, e.g., Tereszkiewicz v Tereszkiewicz, 128 AD2d 605; Graepel v Graepel, 125 AD2d 447; Rodgers v Rodgers, supra, at 392; Damiano v Damiano, supra, at 139). However, where sufficient assets for a lump-*492sum payment do not exist, the court may direct the recipient of the pension benefits to make the required payments as they are received upon retirement (see, Graepel v Graepel, supra; McDermott v McDermott, 119 AD2d 370, appeal dismissed 69 NY2d 1028; Rodgers v Rodgers, supra, at 392-393). On remittitur, the court is to select 1 method ‍​​​​‌‌‌​​​‌​‌​‌​​​‌​​​​​‌​​‌‌‌​​‌​​‌‌‌​​‌​​​​​‌​‍of distribution and nоt a hybrid form of the 2.

We further note that there is no indication in the record that the court considered the tax liability on that portion of the pension to be distributed to the wife (see, Rodgers v Rodgers, supra, at 392-393; Tereszkiewicz v Tereszkiewicz, supra). Kunzeman, J. P., Eiber, Sullivan and Balletta, JJ., concur.