Cogollos v. Cogollos

Citation402 N.Y.S.2d 929,93 Misc.2d 406
PartiesArturo COGOLLOS, Plaintiff, v. Elba COGOLLOS, Defendant.
Decision Date14 February 1978
CourtUnited States State Supreme Court (New York)

Oscar Gonzalez-Suarez, New York City, for plaintiff.

Warren J. Black, New York City, for defendant.

BEATRICE SHAINSWIT, Justice:

The Court grants the motion for reargument, but adheres to its prior decision.

The husband's suit for divorce was dismissed, after trial by Mr. Justice Stecher, in a judgment dated May 5, 1977, which also awarded the wife $100 per month commencing March 1, 1977, plus a counsel fee of $750. Not one penny of this having been paid, the wife brought on a motion to punish for contempt. The husband and his attorney initially appeared in connection with this motion, obtained several delays, and then ultimately defaulted. On the basis of affidavits from the wife establishing that the nonpaying and defaulting husband had no known employment, but was the recipient of a substantial pension from the National Maritime Union, this Court signed an order, dated November 28, 1977, adjudicating the husband in contempt, and directing, inter alia, that the National Maritime Union Pension and Welfare Plan deduct $100 per month from the husband's pension, pursuant to Sec. 49-b, Personal Property Law.

The attorneys for the Pension Plan now seek reargument to consider the applicability of the federal Employee Retirement Income Security Act of 1974 (ERISA). That statute 29 U.S.C. Sec. 1056(d) states that covered pension plans must require that ". . . benefits provided under the plan may not be assigned or alienated." Movants take the position that compliance with the Court's order might constitute an assignment or alienation violating ERISA and thereby subject the Plan to possible loss of tax exemption, or surcharge of the trustees.

No persuasive authority has been cited by either side. Movant's contention appears to be a novel one insofar as the federal pension statute is concerned. As to the State Retirement and Social Security Law Sec. 110 of which similarly exempts pensions from execution, garnishment, attachment or any other process we have already dealt with the question. Our courts, noting that Sec. 49-b specifically authorizes deduction from pensions, have uniformly rejected the argument that the pension statute protects a father against his obligation to support his family. Weigold v. Weigold, 236 App.Div. 126, 258 N.Y.S. 348 (1st Dept. 1932); Monck v. Monck, 184...

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23 cases
  • American Tel. & Tel. Co. v. Merry, s. 450
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 29 Enero 1979
    ...New York state courts have already found an implied exception to ERISA in family support situations. See Cogollos v. Cogollos, 93 Misc.2d 406, 402 N.Y.S.2d 929 (Sup.Ct.N.Y. County 1978) (deduction order directed at husband's ERISA covered pension under New York Personal Property Law § 49-b ......
  • Operating Engineers' Local No. 428 Pension Trust Fund v. Zamborsky, 79-3373
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 6 Julio 1981
    ...v. Traphagen, 166 N.J.Super. 418, 400 A.2d 66 (1979); Biles v. Biles, 163 N.J.Super. 49, 394 A.2d 153 (1978); Cogollos v. Cogollos, 93 Misc.2d 406, 402 N.Y.S.2d 929 (Sup.Ct.1978); Wanamaker v. Wanamaker, 93 Misc.2d 784, 401 N.Y.S.2d 702 (Fam.Ct.1978). The only case to address this precise i......
  • In re Komet, Bankruptcy No. 88-50379-C.
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Western District of Texas
    • 5 Julio 1989
    ...3, 69 App.Div.2d 679, 419 N.Y.S.2d 127, appeal dism'd, 48 N.Y.2d 752, 422 N.Y.S.2d 666, 397 N.E.2d 1333 (1979); Cogollos v. Cogollos, 93 Misc.2d 406, 402 N.Y.S.2d 929 (1978).15 A body of federal common law has thus developed around ERISA, clarifying that ERISA § 206(d) effectively operates ......
  • Nat. Bank of N. America v. LOC. 553 PENSION FUND, ETC., 78 C 758.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 28 Diciembre 1978
    ...See, e. g., M.H. v. J.H., 93 Misc.2d 1016, 403 N.Y.S.2d 411 (Fam. Ct., Queens County, 1978); Cogollos v. Cogollos, 93 Misc.2d 406, 402 N.Y.S.2d 929 (Sup. Ct., N.Y. County, 1978); Wanamaker v. Wanamaker, 93 Misc.2d 784, 401 N.Y.S.2d 702 (Fam. Ct., Rockland County, 1978). One New York decisio......
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