Lentz v. Lentz

• Decision Date: 20 December 1982
• Citation: 457 N.Y.S.2d 401,117 Misc.2d 78
• Parties: Patricia LENTZ, Plaintiff, v. Rudolph LENTZ, Defendant.
• Court: New York Supreme Court

Page 401

457 N.Y.S.2d 401

117 Misc.2d 78

Patricia LENTZ, Plaintiff, v. Rudolph LENTZ, Defendant.

Supreme Court, Special Term Suffolk County, Part V.

Dec. 20, 1982.

Louis S. Labert, P.C., Smithtown, for plaintiff.

Robert H. Diedolf, Patchogue, for defendant.

MEMORANDUM

CATHERINE T. ENGLAND, Justice.

The predominant issue in this divorce action governed by the New York Equitable Distribution Law is whether a non-vested Long Island Railroad Retirement pension is marital property subject to Equitable Distribution. The court answers the question in the negative.

This action for divorce by the plaintiff-wife upon the grounds of constructive abandonment and defendant's cruel and inhuman treatment of plaintiff was commenced on September 19, 1980. The relief requested by plaintiff consisted of equitable distribution of the parties' marital property, reasonable maintenance and child support, exclusive use, occupancy and possession of the marital residence, counsel fees, custody of the infant issue of the marriage, and a direction that defendant provide plaintiff and the infant issue of the marriage full medical, health and life insurance.

The action came on for non-jury trial before this court on June 21, 1982. The credible evidence adduced herein shows that the parties were married on May 12, 1962 in Ridgewood, New York. There are three infant issue of the marriage, to wit: Karen, born, December 8, 1962, Carl, born October 20, 1963 and Kevin, born January 18, 1966. Defendant-husband has been employed by the Long Island Railroad as a signal man since September 29, 1969, earning approximately $396.16 gross per week, without overtime. Plaintiff-wife is employed sporadically as a school bus driver, earning approximately $60.00 per week. She has also worked as a baby-sitter on a part time basis, and was employed part-time by the Internal Revenue Service in 1972. She is a high school graduate and presently appears to have a full time position wherein she earns approximately $157.50 net per week.

It appears that on at least seven occasions, namely in September, 1980, January, 1980, August, 1979, July, 1979, June, 1979, Easter Sunday, 1979 and during the winter of 1976, defendant committed acts of physical violence on plaintiff. She further testified, and it appears, that any acts of sexual intercourse which took place occurred without plaintiff's consent. It further appears that there were numerous occasions of shouting and name calling, and, on one occasion, she sought medical attention for her strained nerves.

Based on the evidence, the court finds that plaintiff-wife has proven her cause of action on both grounds, and, accordingly, grants plaintiff a judgment of divorce herein. Plaintiff is granted custody of the one infant issue, Kevin, age 16, with liberal visitation privileges to defendant. Since the issue, Karen and Carl are both over the age of eighteen, the court is without authority to make an award of child custody to either party. (Adamec v. Adamec, 81 A.D.2d 600, 437 N.Y.S.2d 722 (2nd Dep't 1981).

There are two basic issues to be determined herein, i.e., the disposition of the marital premises, and whether a Long Island Railroad non-vested pension at the time of the commencement of the action is marital property subject to 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 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 constitutes marital property by definition (DRL § 236(B)(1)(c). Under the Long Island Railroad Retirement Plan, defendant accrues a pension of 2% of his final year's pay for each of his twenty-five years of service, plus 1.5% of such pay for each year thereafter. These benefits vest after twenty years and can be paid as early as age 50. Benefits are normally payable for the retired employee's lifetime (without cost of living adjustments) and are reduced at age 65 by 50% of whatever retirement benefit is then payable to defendant under the Railroad Retirement Board Program. The final year's pay excludes overtime but includes ten weeks of accrued vacation time. There is a lump sum death benefit of up to $5,000.00 payable if death occurs before an employee is vested (20 years). Death benefits payable after an employee vests are a percentage of his accrued benefit to his wife, if married (or up to $5,000.00, if single). Railroad Retirement Board benefits are in lieu of, and similar to, Social Security Benefits, and are in addition to benefits payable under this plan. Full Railroad Retirement Board Benefits can be received at age sixty with thirty years of service or at age 65. Eighty per cent of full benefits may be received at age 62 with less than thirty years of service.

It is significant that over the past several years, pension benefits have become an increasingly important part of an employee's compensation package which he or she brings to a marriage unit. Moreover, in a situation where economic circumstances prevent a husband and wife from saving or investing a portion of the wage earner's income, the pension right swells in importance as retirement or vesting approaches, and, may well represent the most valuable asset accumulated by either of the marriage partners. Accordingly, those states which, like New York, confer authority on courts considering divorce matters to make some form of distribution of joint and separate property upon termination of a marriage, with near unanimity, subject retirement benefits in general to division between the former spouses (E.g., Malone v. Malone, 587 P.2d 1167 (Alaska 1978); Van Loan v. Van Loan, 116 Ariz. 272, 569 P.2d 214 (1977); In re Marriage of Mitchell, 195 Colo. 399, 579 P.2d 613 (1978) (en banc); In re Marriage of Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561 (1976) (en banc); Robert C.S. v. Barbara J.S., 434 A.2d 383 (Del.1981); Tavares v. Tavares, 58 Hawaii 541, 574 P.2d 125 (1978); Ramsey v. Ramsey, 96 Idaho 672, 535 P.2d 53 (1975); In re Marriage of Hunt, 78 Ill.App.3d 653, 34 Ill.Dec. 55, 397 N.E.2d 511 (1979); Libunao v. Libunao, 388 N.E.2d 574 (Ind.App.1979); In re Marriage of Schissel, 292 N.W.2d 421 (Iowa 1980); Foster v. Foster, 589 S.W.2d 223 (Ky.App.1979) Sims v. Sims, 358 So.2d 919 (La.1978); Miller v. Miller, 83 Mich.App. 672, 269 N.W.2d 264 (1978); Elliott v. Elliott, 274 N.W.2d 75 (Minn.1978); In re Marriage of Powers, 527 S.W.2d 949 (Mo.App.1975); Vert v. Vert, 613 P.2d 1020 (Mont.1980); Kullbom v. Kullbom, 209 Neb. 145, 306 N.W.2d 844 (1981) Kruger v. Kruger, 375 A.2d 659, 73 N.J. 464 (1977); Deering v. Deering, 292 Md. 115, 437 A.2d 883 (1981); Kikkert v. Kikkert, 88 N.J. 4, 438 A.2d 317 (1981); Majauskas v. Majauskas, 110 Misc.2d 323, 441 N.Y.S.2d 900 (Sup.Ct., Monroe Co.1981); Martinez v. Martinez, N.Y.L.J., Oct. 13, 1981, p. 17, col. 5 (Sup.Ct., Nassau Co., Oppido, J.); Perri v. Perri, 115 Misc.2d 478, 454 N.Y.S.2d 277 (Sup.Ct., Kings Co.1982); Hebron v. Hebron, 456 N.Y.S.2d 957 col. 1 (Sup.Ct., Queens Co. 1982); Soto v. Soto, N.Y.L.J., Dec. 17, 1982, p. 7, col. 3 (Sup.Ct., N.Y.Co., Grossman, J.); Keig v. Keig, 270 N.W.2d 558 (N.D.1978); Rogers v. Rogers, 45 Or.App 885, 609 P.2d 877 (1980); Hansen v. Hansen, 273 N.W.2d 749 (S.D.1979); Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976); Englert v. Englert, 576 P.2d 1274 (Utah 1978); Payne v. Payne, 82 Wash.2d 573, 512 P.2d 736 (1973) (en banc); Bloomer v. Bloomer, 84 Wis.2d 124, 267 N.W.2d 235 (1978); see also, DiLeo & Model, A survey of the Law of Property Disposition upon Divorce in the Tristate Area, 56 St. John's Law Rev. 219, 231 (1982); Foster, Commentary on Equitable Distribution, 26 New York Law School Law.Rev. 1, 35 (1981); Note, Equitable Distribution in New York, 45 Albany Law Rev. 483, 499 (1981); Note, New York's Equitable Distribution Law: A Sweeping Reform, 47 Brooklyn Law Rev. 67, 98 (1980); Annot., Pension or Retirement Benefits as Subject to Award or Division by Court in Settlement of Property Rights Between Spouses, 94 A.L.R.3d 176).

This compendium of representative cases essentially views pension benefits as an economic resource acquired with the fruits of the wage earner spouse's labors which would otherwise have been utilized by the parties during the marriage to purchase other deferred income assets. However, there is a split of authority as to whether a non-vested pension is marital property subject to Equitable Distribution (Compare, Miller v. Miller, supra (non-vested retirement annuity not a marital asset); Daffin v. Daffin, 567 S.W.2d 672 (Mo.App., 1978) (non-vested pension not a marital asset); In re Miller, 609 P.2d 1185 (Mont.Supr., 1980); Copeland v. Copeland, 91 N.M. 409, 575 P.2d 99 (1978); Savage v. Savage, 374 N.E.2d 536 (Ct.App.Ind., 1st Dist., 1978); Wilcox v. Wilcox, 173 Ind.App. 661, 365 N.E.2d 792 (1st Dist., 1977), and those states which hold that a non-vested pension is marital property subject to Equitable Distribution (Van Loan v. Van Loan, supra, Linson v. Linson, 618 P.2d 748 (Haw.App.1980); Gillmore v. Gillmore, 29 Cal.3d 418, 174 Cal.Rptr. 493, 629 P.2d 1 (1981); Shill v. Shill, 100 Idaho 433, 599 P.2d 1004 (1979); In re Hunt, 78 Ill.App.3d 653, 34 Ill.Dec. 55, 397 N.E.2d 511; Robert C.S. v. Barbara J.S., supra, Deering v. Deering, supra, Cearley v. Cearley, supra, DeRevere v. DeRevere, 5 Wash.App. 741, 491 P.2d 249 (1971); Leighton v. Leighton, 81 Wis.2d 620, 261 N.W.2d 457 (1978).

Only recently, the Supreme Court of New York County held that a...