Duhamel v. Duhamel
Decision Date | 11 February 2004 |
Docket Number | CA 03-01192. |
Parties | MARTHA DUHAMEL, Now Known as MARTHA MACMILLAN, Respondent, v. KEVIN DUHAMEL, Appellant. (Appeal No. 2.) |
Court | New York Supreme Court — Appellate Division |
Appeal from an order of the Supreme Court, Monroe County (David D. Egan, J.), entered December 26, 2002. The order insofar as appealed from, upon renewal denied defendant's motion seeking a declaration that plaintiff's application for the execution of qualified domestic relations order is time-barred and granted plaintiff's application. [See 194 Misc 2d 100.]
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Supreme Court, upon renewal, properly denied defendant's motion seeking a declaration that plaintiff's application for the execution of a qualified domestic relations order (QDRO) is time-barred. The parties were married in 1973 and divorced in 1986. Pursuant to a separation agreement (agreement) that was incorporated but not merged in the judgment of divorce, plaintiff is entitled to share in defendant's employer-provided retirement plan and savings and investment plan. Plaintiff's marital, pro rata share of those assets is set forth in the agreement, and the parties further agreed that a QDRO would be submitted to the court in accordance with the Retirement Equity Act of 1984 (Pub L 98-397, 98 US Stat 1426). In February 2001, plaintiff's counsel sought information from defendant for the purpose of preparing a QDRO, but defendant refused to provide such information, maintaining that, because of the 16-year interval between the divorce and the proposed submission of the QDRO, its submission is barred by the six-year statute of limitations (see CPLR 213 [1], [2]).
CPLR 201 provides that "[a]n action . . . must be commenced within the time specified in this article unless a different time is prescribed by law . . ." (emphasis added). The submission of a QDRO to the court, however, is not the equivalent of the commencement of an "action." Vested rights in a retirement or pension plan are considered marital property subject to distribution in a divorce action to the extent that they derive from the participant's employment after the marriage and before the commencement of the divorce action. An award of a portion of a former spouse's retirement or pension plan constitutes the equitable distribution of marital property (see Majauskas v Majauskas, 61 NY2d 481, 485-486 [1984]).
Retirement and pension plans, however, are governed by federal law, specifically, the Employee Retirement Income Security Act of 1974 ([ERISA] 29 USC § 1001 et seq.). ERISA defines a QDRO as "a domestic relations order . . . which creates or recognizes the existence of an alternate payee's right to . . . receive all or a portion of the benefits payable with respect to a participant under a plan" (§ 1056 [d] [3] [B] [i]). ERISA generally prohibits pension plan administrators from assigning plan benefits (see § 1056 [d] [1]), except in accordance with specific conditions under which plan benefits can be paid to someone other than the participant (see § 1056 [d] [3]). If an order complies with those conditions, it qualifies as a QDRO, capable of designating an alternate payee of some or all of the funds in a retirement or pension plan (see § 1056 [d] [3] [B]; McCoy v Feinman, 99 NY2d 295, 304 [2002]).
A QDRO obtained pursuant to a separation agreement "can convey only those rights . . . which the parties [agreed to] as a basis for the judgment" (McCoy, 99 NY2d at 304; see Von Buren v Von Buren, 252 AD2d 950, 950-951 [1998]; De Gaust v De Gaust, 237 AD2d 862, 862-863 [1997]). A court may not include in a QDRO rights not provided for in the underlying stipulation or written agreement (see Von Buren, 252 AD2d at 951; De Gaust, 237 AD2d at 863). Therefore, because a QDRO is derived from the bargain struck by the parties at the time of the judgment of divorce, there is no need to commence a separate "action" in order for the court to formalize the agreement between the parties in the form of a QDRO.
Contrary to defendant's contention, neither our decision in McCoy (291 AD2d 799 [2002]) nor the Court of Appeals' affirmance compels a different result. In McCoy, a legal malpractice action, the...
To continue reading
Request your trial-
Fischbach v. Fischbach
...601 (N.Y.Sup. Ct.2001), adhered to on reconsideration, 194 Misc.2d 100, 753 N.Y.S.2d 673 (N.Y.Sup.Ct. 2002), aff'd, 4 A.D.3d 739, 772 N.Y.S.2d 437 (N.Y.App.Div.2004), and Jordan v. Jordan, 147 S.W.3d 255 (Tenn.Ct.App.2004). The trial court did not specifically refer to these cases in its ru......
-
Kraus v. Kraus
...(Denaro v. Denaro, 84 A.D.3d at 1149, 924 N.Y.S.2d 453 ; see Bayen v. Bayen, 81 A.D.3d at 866, 917 N.Y.S.2d 269 ; Duhamel v. Duhamel, 4 A.D.3d 739, 741, 772 N.Y.S.2d 437 ). While this Court has not previously addressed the precise issue of whether a court can amend a previously issued QDRO ......
-
J.K.C. v. T.W.C.
...right to ... receive all or a portion of the benefits payable with respect to a participant under a plan.” Duhamel v. Duhamel, 4 A.D.3d 739, 772 N.Y.S.2d 437 (4th Dept.2004). Pursuant to the QDRO, the transfer of funds occurs between trustees and the recipient does not, during the transfer,......
-
Bayen v. Bayen
...1008, 483 N.E.2d 1140; Woronoff v. Woronoff, 70 A.D.3d 933, 894 N.Y.S.2d 529; Duhamel v. Duhamel, 188 Misc.2d 754, 729 N.Y.S.2d 601, affd. 4 A.D.3d 739, 771 N.Y.S.2d 476). Contrary to the plaintiff's contention, however, motions to enforce the terms of a stipulation of settlement are not su......
-
"Beat the Clock": Deadlines in a Military Divorce Case.
...790 A. 2d 703 (Md. 2002) (no time limit for submission of pension division order after divorce judgment); accord Duhamel v. Duhamel, 772 N.Y. S. 2d 437 (N.Y. App. Div. 2004); and Jordan v. Jordan, 147 S.W. 3d 255 (Tenn. Ct. App. (2) "If the designated agent is served with applications from ......