Hebron v. Hebron

• Decision Date: 26 November 1982
• Citation: 456 N.Y.S.2d 957,116 Misc.2d 803
• Parties: , 4 Employee Benefits Cas. 1025 George HEBRON v. Rosemary HEBRON.
• Court: New York Supreme Court

Page 957

456 N.Y.S.2d 957

116 Misc.2d 803, 4 Employee Benefits Cas. 1025

George HEBRON v. Rosemary HEBRON.

Supreme Court, Special Term,

Queens County, Part V.

Nov. 26, 1982.

Norman Eric Teitler, Rego Part, for plaintiff.

Vincent F. Nicolosi, Bayside, for defendant.

MEMORANDUM

SIDNEY LEVISS, Justice.

This action for divorce by the plaintiff husband, upon the grounds of abandonment, was commenced against the defendant on January 21, 1982. The defendant wife interposed an answer and counterclaim for divorce on the grounds of cruel and inhuman treatment, and a second counterclaim on the grounds of abandonment. The relief requested by defendant wife consisted of equitable distribution of the marital property, reasonable maintenance, custody of the two infant issue of the marriage, child support and counsel fees.

The actions came on for non-jury trial before this court in September, 1982. The credible evidence adduced herein shows they were married on September 9, 1965 in New York County. There are two infant children of the marriage, George born on April 20, 1966, and Lynne born on July 18, 1968. Plaintiff husband has been employed by the New York City Fire Department as a fireman since March 18, 1967, earning approximately $31,408 per year, and is a member and participant in the pension plan of said New York City Fire Department. Defendant wife graduated from high school and worked as a typing and filing clerk, waitress and hostess from 1958 to 1965 when she married, becoming a housewife and homemaker. She did not work again until 1975-76, when she worked as a waitress for 1 1/2 years, as they needed money. During the earlier part of the marriage the parties acquired a house in Garden City which was sold shortly thereafter, the proceeds of which were used to purchase a second house at 32 Jefferson Street, Garden City, New York.

While residing at 32 Jefferson Street, Garden City, the plaintiff husband, on at least three occasions, namely in August, October and December of 1977, physically assaulted the defendant wife. In January 1978, the plaintiff husband called defendant wife and told her that he wasn't coming home again. However, for the period from January 1978 to November 1979, the parties had sexual relations from time to time. During this period of time plaintiff was pressuring defendant to sell the house. He didn't give her any money and she had to borrow some. She lost 50 pounds and sought medical attention for a period of nine (9) months. She finally consented to sell the house. The home was sold in November 1979, with each party receiving half of the net proceeds, the wife also receiving the household furnishings therefrom. From November 1979 to the present time there have been no sexual relations between the parties, although defendant has requested same, but plaintiff has refused. Both parties are capable and not physically incapacitated from the performance thereof.

Since July 1978 defendant wife has worked intermittently for two or three days a week as a waitress and hostess in order to augment a Family Court support order of June 1978 of $125 per week for her and the children.

In January 1980, plaintiff purchased premises 26 Virginia Avenue, Long Beach, New York, for $43,000. He made a down payment of $14,000 from the funds he received as his share of the sale of the Garden City home, with title in his own name. Subsequently he transferred title in August 1980 to himself and his girl friend, Lillian Kaminsky, jointly. The girl friend apparently spent approximately $22,000 for repairs and renovation of the house. Both share the expenses jointly.

At the end of the plaintiff's case, the court dismissed the cause of action in the complaint for abandonment, for failure to prove a prima facie case.

The court finds that defendant wife has proven her cause of action based upon abandonment, and accordingly grants defendant a judgment of divorce herein. Defendant is granted custody of the two infant children, George age 16, and Lynne age 14, with liberal visitation privileges to the plaintiff.

There are two basic issues to be determined herein, and they are (1) whether defendant is entitled to an equitable distribution of the real property purchased by plaintiff in Long Beach, New York in January 1980, and (2) whether a New York City Fireman's pension is ever subject to equitable distribution, and if it is, whether plaintiff's non-vested pension at the time of the commencement of this action is subject to such equitable distribution.

The marriage relationship since the passage of the Equitable Distribution Law has come to be viewed as an economic partnership. "Upon its dissolution, property accumulated during the marriage should be distributed in a manner which reflects the individual needs and circumstances of the parties regardless of the name in which such property is held." (Governor's Memorandum of Approval, McKinney's 1980 Session Laws, at page 1863.)

All property, real or personal, has now been classified by the Domestic Relations Law, section 236, Part B, as either "marital property" or "separate property". Subd. (1)(c) thereof, defines "marital property" as:

"... all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, ..."

Subd. (1)(d) defines "separate property" as:

"(1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse;

(2) compensation for personal injuries;

(3) property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse;

(4) property described as separate property by written agreement of the parties pursuant to subdivision three of this part."

Defendant claims that she is entitled to an equitable distribution with respect to the real property which was acquired by the plaintiff husband in Long Beach, New York, during the marriage. Plaintiff claims that such property is "separate property" owned by plaintiff and another, and that defendant is not entitled to any equitable distribution therefrom. The credible evidence with respect thereto shows that prior to January 1978, the parties jointly owned their marital residence located at 32 Jefferson Street, Garden City, New York. That in January 1978 plaintiff had an argument with defendant and left defendant and the marital premises. In November 1979, the parties sold their marital residence at 32 Jefferson Street, Garden City, New York. Each party received $26,800 net from the sale thereof, in addition to which defendant wife received the furnishings from the house. Plaintiff thereupon, in January 1980, purchased premises 26 Virginia Avenue, Long Beach, New York, for $43,000, ostensibly jointly with a person, Lillian Kaminsky. Plaintiff used $14,000 of the proceeds from the sale of the Garden City premises as a down payment with a mortgage of approximately $29,000. Title was taken in plaintiff's name in January 1980, as Lillian Kaminsky was unable to attend the closing. Ms. Kaminsky was to buy the furnishing, appliances, furniture, kitchen cabinets and renovations, which expenses totalled $20,000. Plaintiff then transferred title in August 1980 jointly to himself and Lillian Kaminsky.

The parties having mutually agreed to sell their joint assets, the house, prior to separation, and divide same in an equitable fashion, in this case the wife receiving the major portion of said assets, namely one half the cash proceeds plus all the furnishings, she cannot now complain. The intent of the parties was to divide the proceeds which then became separate property. She is not now entitled to two bites from the same apple by claiming an equitable distribution of the husband's share of said proceeds.

As there are no other assets which can be considered marital property, the court will now consider the most important issue herein, and that is whether plaintiff's pension plan is marital property and therefore subject to equitable distribution herein. Plaintiff George M. Hebron, a fireman first grade with the Fire Department of the City of New York, joined the Fireman's Retirement System on March 18, 1967. The New York City Administrative Code, Section B19-7.871b(2) states that a member of the New York City Fire Department is entitled to a pension which shall not vest until the member has been employed by the Department for a period of 15 years. The 15 years is calculated from the anniversary date of the member's employment. He is enrolled in the twenty year retirement plan (section B19-7.58 of the N.Y. City Adm.Code).

An employee's interest in a pension plan is "vested" if the right cannot be forfeited by the discharge or voluntary retirement of the employee prior to his or her reaching retirement age, while the interest is "matured" if there is an unconditional right to immediate payment of retirement benefits ( Re Marriage of Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561). Therefore, plaintiff's rights in the New York City Fireman's Pension Fund are not only not matured, but they were not even vested at the time of the commencement of this action, as plaintiff had less than 15 years in the system prior thereto.

In New York, the courts in the relatively short period of time since the Equitable Distribution Law went into effect in July 1980, have held that a pension which has matured is to be considered marital property for purposes of equitable distribution (Perri v. Perri, 115 Misc.2d 478, 454 N.Y.S.2d 277), as well as pensions which have vested but have not yet matured (Majauskas v. Majauskas, 110 Misc.2d 323, 441 N.Y.S.2d 900, Martinez v. Martinez, New York Law Journal October 13, 1981, Sup.Ct. Nassau County, J. Oppido). However, there has as yet been no...