Duhamel v. Duhamel

Decision Date11 February 2004
Docket NumberCA 03-01192.
PartiesMARTHA DUHAMEL, Now Known as MARTHA MACMILLAN, Respondent, v. KEVIN DUHAMEL, Appellant. (Appeal No. 2.)
CourtNew 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.

Memorandum:

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...

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11 cases
  • Fischbach v. Fischbach
    • United States
    • Court of Special Appeals of Maryland
    • July 7, 2009
    ...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
    • United States
    • New York Supreme Court — Appellate Division
    • July 8, 2015
    ...(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.
    • United States
    • New York Supreme Court
    • February 28, 2013
    ...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
    • United States
    • New York Supreme Court — Appellate Division
    • February 22, 2011
    ...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......
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1 books & journal articles
  • "Beat the Clock": Deadlines in a Military Divorce Case.
    • United States
    • Florida Bar Journal Vol. 96 No. 1, January 2022
    • January 1, 2022
    ...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 ......

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