Lentz v. Lentz

• Decision Date: 23 July 1984
• Citation: 103 A.D.2d 822,478 N.Y.S.2d 56
• Parties: Patricia LENTZ, Appellant, v. Rudolph LENTZ, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 56

478 N.Y.S.2d 56

103 A.D.2d 822

Patricia LENTZ, Appellant, v. Rudolph LENTZ, Respondent.

Supreme Court, Appellate Division Second Department.

July 23, 1984.

Louis S. Labert, P.C., Smithtown (Richard L. Hause, Smithtown, of counsel), for appellant.

Hull & Field, Smithtown (Gary P. Field, Smithtown, of counsel), for respondent.

Before NIEHOFF, J.P., and BOYERS, LAWRENCE and EIBER, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action, plaintiff wife appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Suffolk County, entered January 31, 1983, as (1) determined that defendant husband's nonvested pension did not constitute marital property subject to equitable distribution, (2) limited her maintenance to $60 per week for a period of five years and child support to $15 per week for each of the parties' three children, and (3) directed that the net proceeds derived from the sale of the marital residence, to take place when all of the children have attained the age of 21, be divided equally between the parties.

Judgment modified, on the law and the facts, by deleting from the fourth decretal paragraph the words "$60 per week" (plaintiff's maintenance) and substituting therefor the words "$80 per week". As so modified, judgment affirmed insofar as appealed from, without costs or disbursements, and matter remitted to Special Term for a hearing to determine the value of defendant's nonvested pension and for equitable distribution thereof.

The parties were married on May 12, 1962. There are three children of the marriage, the youngest of whom was born on January 18, 1966. During 10 out of the 20 years that the parties were married, the plaintiff wife was employed at various jobs on a part-time basis. In the spring of 1981, she began working full-time as a clerk, earning a net of approximately $157 per week. Her weekly expenses for the mortgage, home insurance, utilities and house maintenance alone total approximately $135 per week. Defendant husband has been employed by the Long Island Railroad since 1969. From 1971 until mid-1981, he worked as a signalman, earning over $25,000 in each of the last three years of that period. He testified that he was demoted to the position of helper in August, 1981 because of the adverse effects the pending divorce action was having on his ability to perform and that consequently he suffered a reduction in pay. As of the time of trial, defendant was earning a gross of approximately $396 per week, exclusive of overtime, or about $20,600 annually. The Long Island Railroad provides it employees with a pension which vests after 20 years of service. The defendant's pension benefits will vest in 1989.

Special Term erred when it determined that defendant's nonvested pension was not marital property subject to equitable distribution. In Damiano v. Damiano, 94 A.D.2d 132, 463 N.Y.S.2d 477, this court held that pension benefits belonging to either spouse attributable to employment during the marriage, whether vested or nonvested, constitute marital property subject to distribution. An award of an equitable share of defendant's pension to plaintiff is appropriate in the instant case,...