Simms v. Greene–simms
| Decision Date | 08 January 2009 |
| Docket Number | No. CS07–01828.,CS07–01828. |
| Citation | 22 A.3d 727 |
| Parties | Christopher SIMMS,1 Petitioner,v.Deborah GREENE–SIMMS, Respondent. |
| Court | Delaware Family Court |
OPINION TEXT STARTS HERE
Theresa M. Hayes, Esquire, Law Office of Edward C. Gill, P.A., Georgetown, DE, Attorney for Christopher Simms.David J. Bever, Esquire, Barros, McNamara, Malkiewicz, & Taylor, P.A., Dover, DE, Attorney for Deborah Greene–Simms.
The sole issue that the Court was asked to resolve in this property division case is the extent to which Wife should receive a share in Husband's disability portion of Husband's pension that Husband receives from the New York City Fire Department. Pursuant to Section 13–353 of the Municipal Code of New York and the World Trade Center Bill, Husband's disability portion of his pension includes a mathematically determined amount due to bodily injuries he sustained in the performance of his duties as a New York City fire fighter. These injuries include Husband's development of Chronic Obstructive Pulmonary Disease (COPD) caused by the damage sustained to his lungs during the clean up of the September 11, 2001 attacks of the World Trade Center. These injuries also include Husband's suffering from Post Traumatic Stress Disorder (PTSD) directly resulting not only from the 9/11 attacks, but also from numerous tragedies Husband witnessed in his employment with the Special Operations Unit on which he served.
Wife avers that the portion of Husband's pension attributable to his bodily injuries should be included as part of the overall pension amount subject to a division of marital property. Husband contends that, while Wife is deserving of an equitable interest in part of his pension, Wife should not be entitled to that portion of his disability pension specifically calculated as attributable to bodily injuries pursuant to Section 13–353 of the Municipal Code of New York and the World Trade Center Bill.
For the reasons that are set forth hereafter, the Court agrees with Husband's position that the portion of Husband's disability pension which is clearly attributable to his bodily injuries is not marital property, and is therefore not subject to the equitable division of this Court.
The parties were married on July 31, 1993, separated October 01, 2006, and were finally divorced on September 25, 2007. Husband is presently 51 years of age. Wife is 47. The parties have two children, a daughter age 12, and a son age 10. The parties were married in the State of New York, and they lived in New York until they moved to Delaware in July of 2003. Husband was a New York City fireman. His disability pension with the City of New York permits additional credits for the 3 years of which he spent in the United States Army, and the 8 years for which he spent with the police department of the Housing Authority of New York, together with the final 13 years he served with the New York City Fire Department. Husband has therefore been attributed under his plan with 24.058 years of service, which is the equivalent of 288.65 months. The parties were married for 115 months of this total 288.65 months of Husband's service.
Husband's entire fire company was killed on September 11, 2001. The only reason Husband did not die with the other members of his company was because he was on medical leave that day as a result of burns he had received around his ears for a fire he had attended just a few days before on September 09, 2001. Husband immediately went to work for the next 10 months on the clean up of the World Trade Center. As a result of this service, Husband suffers from COPD due to his ingestion over that time period of asbestos, ground glass, human remains, and concrete dust. Husband continues to see a counselor and receive medication prescribed by a psychiatrist for his Post Traumatic Stress Disorder. The tragedy that our nation suffered on September 11, 2001, inflicted on this intact family its own personal tragedy.
Husband now receives a combination of payments totaling $117,663.00 per year. Of that amount, $23,244.00 is attributable to his Federal Social Security Disability for himself. The federal government also makes a payment which benefits the parties' children. From his New York City Pension Plan, Husband receives $94,419.08 per year. Of that amount, and according to the previously cited New York Code, $34,979.34 per year is attributable to the bodily injuries Husband received.
For reasons that follow, this Court is holding that $34,979.34 per year of Husband's New York City Pension Plan is not marital property, and therefore not subject to equitable division, because that portion of his payment is attributable to bodily injuries he received. The remaining amount paid from his New York City Pension Plan of $59,439.74 is subject to marital property division according to formulas which will later be discussed.
Wife continues to work as a registered nurse, which was also the profession she followed during the entire marriage when the parties lived in New York. Although Wife is now certified as a Certified Nurse Consultant, she has not yet been able to pursue employment with that specialty. At this time, Husband has no regular employment.
The Court received testimony about the New York City Fire Pension Plan from two extremely qualified expert witnesses. The bulk of the information was provided by Magda M. Deconinck, Esquire. Ms. Deconinck was an assistant corporation counsel to the City of New York Pension Division for more than 20 years, and she eventually rose to senior attorney in that department. During 18 of those 20 years, Ms. Deconinck was counsel to the Board of Trustees of the Fire Department Pension Fund until leaving that position to go into private practice in December 2005. Her private practice concentrates solely on public employee pensions. The financial information which Ms. Deconinck included in her evaluation of Husband's pension plan was provided and confirmed by Albert Connolly, the present Deputy Director of the New York City Fire Pension Plan.
Wife first contends that the Court should apply Delaware law to this issue as a result of applying the “most significant relationship test”. This test is defined in Lagrone v. American Mortell Corp., 2008 WL 4152677 (Del.Super.) as the location where the most significant ties to the incident occur when there is not a contract involved. Wife avers that Delaware clearly has the most significant ties in this case because the parties lived in Delaware, filed for divorce in Delaware, and the Delaware Courts are handling matters ancillary to their divorce. However, the Court agrees with Husband's opinion that the parties had their most significant relationship, especially as it concerns this pension, to the State of New York. In New York, Husband gave 25 years of service to the City of New York, which included 9.6 years of the parties 14 years and 2 months of marriage. The injuries which were suffered by Husband as a result of injuries he sustained in the 9/11 clean up at the World Trade Center, and the special legislation created to compensate the firemen for the personal injuries they suffered in that dreadful time, all occurred in the State of New York.
Wife also cited in support of her case Tarburton v. Tarburton, 1997 WL 878411 (Del.Fam.Ct.). Wife incorrectly interpreted Tarburton to suggest that another State's law in property division is relevant only in situations where there was a contract executed in the other State. The Tarburton case revolved around a dispute about the validity of an antenuptial agreement that was executed in Pennsylvania, after which the parties married and resided in Delaware. The Delaware Family Court ruled that Pennsylvania law would apply to the validity and construction of the contract. Tarburton did not stand for the principle that Delaware can only look to another State's law in property division cases where a contract was signed in the other State.
Wife then asserts that two cases in the Delaware Family Court which address the issue of disability pensions as marital property support her position in the case sub judice. The first case, an opinion written by this Judge, is Evans v. Evans, 820 A.2d 394 (Del.Fam.Ct.2001). In Evans, the parties had signed a stipulated agreement, which then became the Order of the Court. The Agreement and Order awarded Wife a portion of Husband's retirement pension resulting from his employment with the State of Maryland. The parties in Evans attempted to enter into a Qualified Domestic Relations Order so that Wife would start receiving her benefits from the Maryland plan if, as, and, when Husband eventually retired. For technical reasons, the pension department from the State of Maryland rejected the plan. By the time a second prepared Order was being circulated that might have been recognized by the pension plan, Husband was injured, and his entire pension plan was rolled over into an immediately payable full disability pension plan. It was clearly the intent of the husband and wife in the Evans case that Wife would eventually receive a portion of Husband's pension plan when he retired and began to receive the payments. It was certainly not the intent of the parties that, just because of a subsequent injury which resulted in Husband's entire pension plan being converted to an immediately payable disability pension plan, Wife would receive nothing.
The facts in the Evans case are entirely distinguishable from the present case. The Evans plan contained no breakdown by the plan between payments that were for time of service as opposed to payments that were based upon injury to the body. In the Evans case, Maryland case law had already established that contractual entitlements to disability pensions which arise as a result of employment during the marriage, make them subject to marital property division.2 Furthermore, this Judge in the Evans Dec...
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