Brundage v. Brundage

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before O'CONNOR
• Citation: Brundage v. Brundage, 474 N.Y.S.2d 546, 100 A.D.2d 887 (N.Y. App. Div. 1984)
• Decision Date: 16 April 1984
• Parties: Nancy BRUNDAGE, Appellant, v. Clifford BRUNDAGE, Respondent.

Page 546

474 N.Y.S.2d 546

100 A.D.2d 887

Nancy BRUNDAGE, Appellant, v. Clifford BRUNDAGE, Respondent.

Supreme Court, Appellate Division Second Department.

April 16, 1984.

Gering, Gross & Gross, Elmhurst (M. Joseph Levin, Elmhurst, of counsel), for appellant.

Naidich & Smolev, P.C., Bellmore (Richard S. Naidich, Bellmore, of counsel), for respondent.

Before O'CONNOR, J.P., and WEINSTEIN, NIEHOFF and BOYERS, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the plaintiff wife appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Nassau County, dated January 14, 1983, as (1) failed to consider the defendant husband's pension and profit-sharing plan as marital property subject to equitable distribution, (2) directed that the marital residence be sold within six months after the entry of judgment, (3) ordered the defendant to pay her only $260 per week in maintenance, to be increased to only $275 per week upon the sale of the marital residence and (4) ordered the defendant to pay $50 per week for the support of the parties' minor daughter, with the proviso that if the defendant pays the daughter's college tuition, he will only be obligated to pay the $50 per week in child support during those periods when she is at home with her mother, or until she reaches 21 years of age or is sooner emancipated.

Judgment modified by deleting the second, third and fourth decretal paragraphs thereof. As so modified, judgment affirmed insofar as appealed from, with costs to plaintiff, and matter remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith. Pending the hearing at Special Term, defendant shall pay the sum of $260 per week to the plaintiff for temporary maintenance.

We agree with plaintiff that Special Term erred by failing to consider the pension and profit-sharing plans, in which defendant participated through his employer, as marital property subject to equitable distribution pursuant to the decision of the Court of Appeals in Majauskas v. Majauskas, 61 N.Y.2d ---, 481 N.Y.S.2d ----, --- N.E.2d ----, April 3, 1984 and the decisions of this court in Damiano v. Damiano, 94 A.D.2d 132, 463 N.Y.S.2d 477, Rodgers v. Rodgers, 98 A.D.2d 386, 470 N.Y.S.2d 401 and Kobylack v. Kobylack, 96 A.D.2d 831, 465 N.Y.S.2d 581. Plaintiff's claim for an equitable share of defendant's interest in his pension and profit-sharing plans, which this court has held constitute forms of deferred compensation, is particularly persuasive in the instant case. Defendant served as the primary breadwinner during the parties' marriage of approximately 27 years duration and plaintiff, who was a full-time homemaker throughout most of the marriage, had a reasonable expectation that she would share in the future enjoyment of defendant's pension and profit-sharing plans. Therefore, this matter is remitted to Special Term for further proceedings to determine the characteristics of defendant's pension and profit-sharing plans (e.g., whether his interest in the pension plan is vested or nonvested), the value of defendant's interests in both plans as of the date of the commencement of the matrimonial action, plaintiff's equitable share of those interests and the appropriate method of distributing that share to her in accordance with Majauskas v. Majauskas (supra), Damiano v. Damiano (supra) and Kobylack v. Kobylack (supra). The record reveals particular questions as to the value of the defendant's interest in his profit-sharing plan. Defendant testified at trial that, subsequent to the commencement of the divorce action, he withdrew considerable sums of money from his profit-sharing account, which he used to defray his own living expenses, as well as to pay the college tuition for the parties' son and daughter. At the hearing to be held upon remittal, defendant should present evidence as to the amounts of money he withdrew or borrowed from the profit-sharing account and the expenditures he made with that money. If the evidence reveals that defendant expended a substantial portion of the money he withdrew from the profit-sharing account for the support of plaintiff and his children and that he did not have any other income or assets to replace the moneys he withdrew, Special Term may exercise its discretion to decline to award plaintiff an equitable share of defendant's interest in the profit-sharing plan. In making its determination in this regard, the court should set forth the factors it considered and the reasons for its decision (Domestic Relations Law, § 236, part B, subd. 5, par. g).

On appeal plaintiff challenges both the amount of the award of maintenance and the failure of Special Term to set forth the factors it considered in arriving at that award, as mandated by section 236 of the Domestic Relations Law (part B, subd. 6, par. b). Special Term failed to refer to any of the factors enumerated in section 236 of the Domestic Relations Law (part B,...