22 A.3d 727 (Del.Fam.Ct. 2009), CS07-01828, Simms v. Greene-Simms

Docket Nº:CS07-01828.
Citation:22 A.3d 727
Opinion Judge:HENRIKSEN, J.
Party Name:Christopher SIMMS,[1] Petitioner, v. Deborah GREENE-SIMMS, Respondent.
Attorney: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.
Case Date:January 08, 2009
Court:Family Court of Delaware
 
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Page 727

22 A.3d 727 (Del.Fam.Ct. 2009)

Christopher SIMMS, 1 Petitioner,

v.

Deborah GREENE-SIMMS, Respondent.

No. CS07-01828.

Family Court of Delaware, Sussex.

January 8, 2009

Submitted: Sept. 4, 2008.

Page 728

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.

OPINION

HENRIKSEN, J.

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.

Facts

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

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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...

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