Freer v. Freer

• Court: New York Supreme Court
• Writing for the Court: Lisa M. Fisher, J.
• Citation: Freer v. Freer, 61 Misc.3d 953, 85 N.Y.S.3d 710 (N.Y. Sup. Ct. 2018)
• Decision Date: 10 September 2018
• Docket Number: 97-2922
• Parties: Elizabeth FREER n/k/a Elizabeth Kennedy, Plaintiff, v. Michael FREER, Defendant.

61 Misc.3d 953

85 N.Y.S.3d 710

Elizabeth FREER n/k/a Elizabeth Kennedy, Plaintiff,

v.Michael FREER, Defendant.

97-2922

Supreme Court, New York, Ulster County.

Decided on September 10, 2018

Joseph M. Ingarra, Esq., 145 Wall Street, P.O. Box 3190, Kingston, New York 12402, Counsel for Plaintiff

Carol K. Morgan, Esq., Morgan & Spinac, Attorneys at Law, 325 Wall Street, Kingston, New York 12401, Counsel for Defendant, movant

Lisa M. Fisher, J.

This is a matrimonial matter wherein Defendant seeks to have this Court execute an amended qualified domestic relations order (hereinafter "QDRO") in the place and stead of the QDRO signed on February 25, 2002 by Supreme Court (Bradley, J.). The gravamen of the application is that the prior QDRO erroneously granted Plaintiff a survivor option and death benefits from Defendant's pension. Defendant argues the matrimonial separation agreement did not provide for such survivor option and death benefits, but the QDRO executed by Plaintiff's counsel improperly included same. Defendant alleges he did not receive notice of the proposed QDRO when it was signed, and only learned of such issue when he recently met with this retirement system representative to finalize retirement details. Defendant contends there is a significant difference in his monthly pension payments considering the inclusion or exclusion of the survivor option and death benefits.

Plaintiff opposes the application by arguing that the QDRO was sent to Defendant on notice and he consented to same. She alleges that Defendant is lying and he made the mistake but it is somehow "always [her] fault" as it was "during our marriage." Plaintiff's present counsel is the same counsel who drafted the subject QDRO, and provides that he copied Defendant's prior lawyer with the proposed QDRO before it was signed by Supreme Court (Bradley, J.). Plaintiff's counsel also indicates that changes were requested and ultimately approved by the New York State and Local Retirement Systems (hereinafter "NYSLRS") in written correspondence from Carolyn D'Agostino, Esq., which copied Defendant on such approval. Plaintiff's counsel contends that Defendant knew about the subject QDRO and the approved Order on or before March 24, 2003, and should be barred from making an application pursuant to CPLR R. 5015 as more than one year has elapsed.

Defendant submits a reply contending that he was not represented for the prior QDRO and correspondence to his divorce lawyer was wherein ineffective. Nor does a letter to him from NYSLRS stating the QDRO was approved as it does not explain the terms therein. He argues that, notwithstanding the fact he did not receive notice, it is clear the prior QDRO does not accurately reflect the terms of the Separation Agreement which is the operative and controlling document.

Oral argument was held on this matter, wherein the Court noted it received correspondence from Carolyn D'Agostino, Esq., whom is now in private practice and no longer with the NYSLRS, affirming that the prior QDRO "was inconsistent with the terms of the parties' Separation Agreement in that it provided for survivorship and death benefits when the Agreement did not award the Alternative Payee these assets." This was carbon copied to Plaintiff's present counsel and Defendant.¹ The Court further outlined its position as to vacatur and the language of the matrimonial separation agreement, including the possibility of an in-court stipulation on the record—which there was no oral stipulation. The parties were offered the opportunity to submit a supplement, wherein none was received by chambers.

Relief from judgment or order is governed by CPLR R. 5015, which provides under subdivision (a) a list of five grounds where a "court which rendered a judgment or order may relief a party from it upon such terms as may be just, on motion of any interested person" ( CPLR R. 5015 [a] ). Only subdivision (a) (1) carries with it a one-year time limit. However, this list of five grounds is "by no means exhaustive" ( Matter of Commissioner of Social Servs. of Rensselaer County [Faresta] v. Faresta , 11 A.D.3d 750, 751, 783 N.Y.S.2d 420 [3d Dept. 2004] ) and "merely codif[ies] some of the principal grounds upon which the courts can exercise their inherent power to vacate, but do not set forth an exhaustive list or in any way limit this power" ( Matter of Delfin A. , 123 A.D.2d 318, 230, 506 N.Y.S.2d 215 [2d Dept. 1986] ).

As such, "a court may vacate its own judgment for a sufficient reason and in the interests of substantial justice" ( Woodson v. Mendon Leasing Corp. , 100 N.Y.2d 62, 68, 760 N.Y.S.2d 727, 790 N.E.2d 1156 [2003] ; see Borst v. International Paper Co. , 121 A.D.3d 1343, 1348–49, 995 N.Y.S.2d 769 [3d Dept. 2014] ["Courts are not limited to vacating a judgment pursuant to the enumerated grounds set forth in CPLR 5015, however, as they ‘retain inherent discretionary power to vacate their own judgments for sufficient reason and in the interests of substantial justice."] ). This principle of law has been long-held as an inherent power of the court to vacate its own judgments, which is not limited to the statute, but also a court "may open them upon the application of anyone for sufficient reason, in the furtherance of justice" ( Ladd v. Stevenson , 112 N.Y. 325, 19 N.E. 842 [1889] [noting that the court's "power to do so does not depend upon any statute, but is inherent, and it would be quite unfortunate if it did not possess it to the fullest extent."] ).

It is well-established that "[w]hen the distribution of pension benefits between former spouses is accomplished through a QDRO obtained pursuant to a stipulation, such QDRO ‘can convey only those rights to which the parties stipulated as a basis for the judgment’ " ( Kraus v. Kraus , 131 A.D.3d 94, 100, 14 N.Y.S.3d 55 [2d Dept. 2015], quoting Berardi v. Berardi , 54 A.D.3d 982, 985, 865 N.Y.S.2d 245 [2d Dept. 2008], citing McCoy v. Feinman , 99 N.Y.2d 295, 304, 755 N.Y.S.2d 693, 785 N.E.2d 714 [2002] ; accord Dagliolo v. Dagliolo , 91 A.D.3d 1260, 1260, 937 N.Y.S.2d 466 [3d Dept. 2012] ). As such, "a court errs in granting a domestic relations order encompassing rights not provided in the underlying stipulation, or a QDRO more expansive than an underlying written separation agreement" ( McCoy , 99 N.Y.2d at 304, 755 N.Y.S.2d 693, 785 N.E.2d 714 ). This is because pension survivor and death benefits are separate from Majauskas calculations and must be independently negotiated; they are not automatically deemed part of pension benefits.(See Wojtowicz v. Wojtowicz , 171 A.D.2d 1073, 569 N.Y.S.2d 248 [4th Dept. 1991], quoting Culnan v. Culnan , 142 A.D.2d...