Damiano v. Damiano

• Decision Date: 07 June 1983
• Parties: Charles V. DAMIANO, Respondent v. Frances M. DAMIANO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 477

463 N.Y.S.2d 477

94 A.D.2d 132

Charles V. DAMIANO, Respondent v. Frances M. DAMIANO, Appellant.

Supreme Court, Appellate Division,

Second Department.

June 7, 1983.

Birbrower, Montalbano, Condon, Seidenberg & Frank, P.C., New City (Harold A. Seidenberg and Peter K. Eck, New City, of counsel), for appellant.

Zebrowski & Nicolai, New City (Kenneth P. Zebrowski, New City, of counsel), for respondent.

Before MOLLEN, P.J., and DAMIANI, THOMPSON and GULOTTA, JJ.

MOLLEN, Presiding Justice.

This appeal concerns a matrimonial action which, having been commenced after the effective date of part B of section 236 of the Domestic Relations Law, is governed by the equitable distribution provisions of that statute. In reviewing the issues presented, we have occasion to consider for the first time the question of whether and to what extent one spouse has a right, under equitable distribution, to the other spouse's employment pension or annuity.

The parties were married in June, 1958 and have four children, the oldest born January 31, 1960, the youngest born February 29, 1972. In September, 1980, the husband commenced an action for divorce on the ground of cruel and inhuman treatment. Thereafter, the wife sought an order granting her temporary maintenance, child support, exclusive possession of the marital residence, and counsel fees. In addition, her answer contained a counterclaim for divorce, also on the ground of cruel and inhuman treatment. On October 9, 1980, the husband was ordered, pendente lite, to pay the mortgage and utilities for the marital residence, and temporary maintenance and child support of $135 per week. He was also directed to pay $750 in counsel fees.

In January, 1981, a plenary trial was held in the matrimonial action. The issues contested were each party's request for a divorce, the wife's request for maintenance and child support, and the equitable distribution of the marital property. In its written decision, issued well after the conclusion of the trial, the court granted each party a divorce on the ground of cruel and inhuman treatment. The wife was awarded custody of the three minor children, and child support was ordered in the amount of $35 per week for each of those children until he or she attained the age of 21 or was sooner emancipated. The wife's request for maintenance was denied. She was, however, awarded exclusive possession of the marital residence, but only for a period of five years after entry of the judgment. The court directed that, at the end of that period, the marital residence was to be sold and the proceeds were to be divided equally between the parties. The court further ordered that the wife was to receive an additional $2,500 from the husband's share of the proceeds of the sale of the residence to compensate her for her interest in the value of the husband's employment "pension fund" as of the date of the trial. Upon the sale of the residence, the proceeds of the sale of the furniture currently in the home were to be divided equally between the parties.

The wife now appeals, inter alia, from stated portions of the divorce judgment, dealing with maintenance and the distribution of marital property.

We begin by noting that the governing statutes require a court in a matrimonial action to set forth the factors it considered and the reasons for its decision in any matter involving maintenance, child support, and the equitable distribution of marital property (see Domestic Relations Law, § 236, part B, subd. 5, par. g, subd. 6, par. b, subd. 7, par. b). In the instant case, the Trial Judge did not follow that mandate, omitting from his decision and from the final divorce decree any specific reference to the factors upon which his determinations were based. Nevertheless, the record is sufficient to permit us to review the decision.

At trial, the husband testified that he was earning approximately $451 per week in gross pay as a printer. His net weekly income was approximately $270. The wife testified that although she was not working, she had in the past performed part time office work. Neither party had any bank accounts or income-producing investments. The parties each described various health problems which could affect their earning capacity in future years. The husband, who was 46 years old at the time of the trial, had suffered a heart attack in November, 1979 and remained out of work for some four months. The wife, who was 42 years old when the divorce action was commenced, testified that in 1964 she had had an operation for a ruptured disc and that ever since she has had periodic spasms in her back. In 1977, her attempt to hold a full-time job at a nursing home ended after only six months, in part because it increased her back problems. The wife testified further that she was under a doctor's care, and that he had told her that holding a full time job would be harmful to her health.

Considering these factors and other evidence adduced at trial, and measuring them against the appropriate statutory criteria, we agree with the trial court that $35 per week as support for each of the minor children was appropriate. In our view, however, the court should have granted the wife's request for maintenance by awarding her a weekly sum of $25 for her support, and additionally, a prorated amount equal to one half of the payments due on the mortgage on the marital residence.

Moreover, the equitable distribution statute permits a court to consider "the need of a custodial parent to occupy or own the marital residence and to use or own its household effects" (Domestic Relations Law, § 236, part B, subd. 5, par. d, cl. ). In our view, the wife, who received custody of the children, should have been awarded exclusive possession of the marital residence until the youngest child, now 11 years old, attains the age of 21 or is sooner emancipated (see, e.g., Weseley v. Weseley, 58 A.D.2d 829, 396 N.Y.S.2d 455; Ettinger v. Ettinger, 107 Misc.2d 675, 435 N.Y.S.2d 916). At that time, the house and the furnishings in question shall be sold, and the proceeds divided equally subject to any offset which may be determined to be appropriate.

We turn then to the question of whether and to what extent the wife has an interest in the husband's pension plan and annuity. The husband testified that he had worked for the same printing company for some 28 years and that, as a result, he has a vested pension through his union. He introduced documents purporting to explain calculations of benefits for his pension, but no testimony was offered by an administrator of the fund or an expert witness to assist in interpreting those documents. The husband testified that under the plan he could not retire or collect benefits at an age earlier than 55. If he retired at that age, he would receive 40% less in pension benefits per month than he would were he to retire at age 65. The court was offered and considered a letter submitted by the administrator of the pension fund which asserted that, based upon the husband's credited service and earnings through November, 1980, he would receive $236.85 per month if he were to retire at 65, and $100.75 per month were he to retire at age 55. Also introduced was evidence that the husband had $6,715.47 in an "annuity fund" at the time of trial. He was unable, however, to offer any explanation regarding this fund or to indicate whether it was related to his pension. In addition, the husband testified that, at one time, his union had invested in shares of a Dreyfus fund for the benefit of retiring employees. He introduced a statement from the Dreyfus fund and estimated the value of his shares at nearly $3,700. There was no expert testimony to substantiate that estimate and the Dreyfus fund investments have apparently been discontinued.

Without any indication of its reasoning or calculations, the trial court simply awarded the wife $2,500 as her share of the money in her husband's "pension fund". The court directed that she receive that amount out of her husband's share of the proceeds of the sale of the marital residence. In our view, the court's determination on this subject was inadequate, and we remit for further proceedings in accordance with the following discussion.

The issue of the status of a spouse's pension or annuity fund under equitable distribution is one which has not previously been addressed by this court. Several published trial court opinions which have dealt with the question have held that an employed spouse's interest in a vested pension plan accruing on account of employment during the period of the marriage constitutes marital property for the purposes of equitable distribution (see, e.g., Hebron v. Hebron, 116 Misc.2d 803, 456 N.Y.S.2d 957; Jolis v. Jolis, 111 Misc.2d 965, 446 N.Y.S.2d 138; Majauskas v. Majauskas, 110 Misc.2d 323, 324, 441 N.Y.S.2d 900; see also, Fay v. Fay, 108 Misc.2d 373, 437 N.Y.S.2d 601). The same view has been taken by courts in sister states which have equitable distribution or community property statutes (see, e.g., Matter of Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561; Matter of Hunt v. Hunt, 78 Ill.App.3d 653, 34 Ill.Dec. 55, 397 N.E.2d 511; Kikkert v. Kikkert, 177 N.J.Super. 471, 427 A.2d 76, affd. 88 N.J. 4, 438 A.2d 317; Matter of Rogers v. Rogers, 45 Or.App. 885, 609 P.2d 877, mod on other grounds, 47 Or.App. 963, 615 P.2d 412; Sims v. Sims, 358 So.2d 919 Cearley v. Cearley, 544 S.W.2d 661 Miller v. Miller, 83 Mich.App. 672, 269 N.W.2d 264; Elliot v. Elliot, 274 N.W.2d 75 Bloomer v. Bloomer, 84 Wis.2d 124, 267 N.W.2d 235). Our view of the language and intent of New York's equitable distribution statute leads us to conclude as well that an employment pension plan is subject to equitable distribution.

A pension fund is properly considered to be an asset of the marriage since it represents in essence a form of deferred compensation derived from a spouse's employment and contemplated to be...