Graepel v. Graepel

• Decision Date: 15 December 1986
• Citation: Graepel v. Graepel, 509 N.Y.S.2d 377, 125 A.D.2d 447 (N.Y. App. Div. 1986)
• Parties: Kathleen T. GRAEPEL, Respondent, v. Glenn G. GRAEPEL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 377

509 N.Y.S.2d 377

125 A.D.2d 447

Kathleen T. GRAEPEL, Respondent, v.Glenn G. GRAEPEL, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 15, 1986.

Lois S. Campbell, Mineola, for appellant.

Dollinger, Gonski, Grossman, Permut & Hirschhorn, Carle Place (Alan K. Hirschhorn, of counsel), for respondent.

Before MANGANO, J.P., and BROWN, WEINSTEIN and SPATT, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Nassau County(Feiden, J.), entered July 1, 1985, as (1) awarded the plaintiff wife an equal share of the net proceeds from the future sale of the marital residence, (2) directed him to pay the plaintiff $100 per week for her maintenance for a period of 10 consecutive years and $47.50 per week per child for the support of each of the four infant children of the marriage, (3) awarded the plaintiff a one-third share of his net periodic retirement benefits accrued during the marriage, (4) awarded the plaintiff the sum of $2,204.18 as arrears owed by him pursuant to a previous court order, (5) set forth a schedule for visitation of the parties' children by him, and (6) awarded the plaintiff $2,000 in counsel fees.

ORDERED that the judgment is modified, on the law, the facts and in the exercise of discretion, by (1) striking the fourth decretal paragraph thereof, (2) deleting from the fifth decretal paragraph thereof all the words following the words "shall pay to the plaintiff the sum of", up to and including the words "plus the sum of", and deleting therefrom all the words following the words "maintenance of the four (4) children", and (3) striking the eighth and tenth decretal paragraphs thereof.As so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith to determine (1) a schedule for visitation of the children by the defendant, (2) the amount and duration of maintenance to be paid to the plaintiff by the defendant, (3)the plaintiff's equitable share of the defendant's retirement benefits, and (4) the amount of arrears owed by the defendant to the plaintiff.Pending the determination of the Supreme Court, Nassau County, the defendant shall continue to make the payments of maintenance and child support in the amounts required by the judgment under review, and the visitation schedule provided in the judgment shall remain in effect.

The only marital assets of the parties were the marital residence and the defendant's pension.In awarding the plaintiff an equal share of the proceeds to be realized from the sale of the marital residence at the time the youngest child attains the age of 21 years or is sooner emancipated, Special Term effectuated the purpose and intent of equitable distribution.Although no testimony was presented as to the value of the defendant's pension, Special Term properly awarded the plaintiff a one-third share of that portion of the net periodic pension benefits attributable to employment during the marriage that the defendant will begin to receive at the time of his retirement.Since there were insufficient marital assets from which to derive a large lump-sum payment and various contingencies rendered the determination of present value difficult, this method of distribution was proper (see, Rodgers v. Rodgers, 98 A.D.2d 386, 470 N.Y.S.2d 401, appeal dismissed62 N.Y.2d 646;Damiano v. Damiano, 94 A.D.2d 132, 463 N.Y.S.2d 477).However, because there was no evidence of when the defendant became a participant in his retirement plan, it was not possible to determine the length of time prior to the commencement of the divorce action that the defendant accumulated benefits (see, Domestic Relations Law § 236Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699, 463 N.E.2d...