Mussmacher v. Mussmacher

• Decision Date: 23 December 2021
• Docket Number: 1009,CA 21-00616
• Citation: 200 A.D.3d 1702,161 N.Y.S.3d 601
• Parties: Kathleen M. MUSSMACHER, Now Known as Kathleen M. Winters, Plaintiff-Respondent, v. Richard C. MUSSMACHER, Defendant-Appellant. (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 1702

161 N.Y.S.3d 601

Kathleen M. MUSSMACHER, Now Known as Kathleen M. Winters, Plaintiff-Respondent,

v.Richard C. MUSSMACHER, Defendant-Appellant. (Appeal No. 2.)

1009

CA 21-00616

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: December 23, 2021

NORMAN L. MASTROMORO, BROADALBIN, FOR DEFENDANT-APPELLANT.

KATHLEEN M. WINTERS, PLAINTIFF-RESPONDENT PRO SE.

PRESENT: CENTRA, J.P., PERADOTTO, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reducing the amount of the award to $52,325.93, plus interest commencing January 7, 2021 and as modified the judgment is affirmed without costs.

Memorandum: Plaintiff wife and defendant husband were divorced by a judgment entered in 1994 in Supreme Court, Fulton County. The judgment of divorce incorporated but did not merge the parties’ written stipulation providing that defendant's pension plan shall be divided between the parties in accordance with the Majauskas formula (see Majauskas v. Majauskas , 61 N.Y.2d 481, 489-491, 474 N.Y.S.2d 699, 463 N.E.2d 15 [1984] ). Although a qualified domestic relations order (QDRO) was entered in Supreme Court, Fulton County, shortly thereafter, it apparently was never sent to defendant's employer, Niagara Mohawk Power Corporation (Niagara Mohawk). Defendant retired in 2003 after 32 years at Niagara Mohawk. At that time, his pension was in the "National Grid Incentive Thrift Plan II," with an option of "a maximum 10-year distribution period to commence at the election of, and in amounts determined by, the participant." Defendant elected to commence distributions in 2010, and the lump sum amount of his pension was transferred to Vanguard Fiduciary Trust Company (Vanguard) and distributed to him in approximately $25,000 increments until it was depleted at the end of 2018.

On July 29, 2019, plaintiff filed a motion in Supreme Court, Oneida County, seeking "retroactive arrearages" due and owing to her from defendant's pension. After a hearing, Supreme Court issued a judgment awarding plaintiff the amount of $75,804.08, representing plaintiff's Majauskas share of the lump sum distribution of defendant's pension that was transferred to Vanguard in 2010, plus interest. We now modify.

Defendant first contends that the court erred in denying his cross motion to transfer the matter to Supreme Court, Fulton County. We agree with defendant that plaintiff should have filed her motion in that county, where the judgment of divorce was entered, rather than Oneida County, which is in a different judicial district and not contiguous to Fulton County (see CPLR 105 [r] ; 2212 [a]). Nevertheless, under the circumstances of this case, the court did not err in denying the cross motion. Initially, inasmuch as Supreme Court has statewide jurisdiction, the filing of the motion in Oneida County was not a jurisdictional defect (see Moran v. Moran , 77 A.D.3d 443, 446, 908 N.Y.S.2d 661 [1st Dept. 2010] ; Cwick v. City of Rochester , 54 A.D.2d 1078, 1079, 388 N.Y.S.2d 753 [4th Dept. 1976] ). To enforce the terms of a stipulation that is incorporated but not merged into a judgment of divorce, a party can either commence a plenary action or move to enforce the judgment (see Campello v. Alexandre , 155 A.D.3d 1381, 1381-1382, 65 N.Y.S.3d 348 [3d Dept. 2017] ; Anderson v. Anderson , 153 A.D.3d 1627, 1628, 61 N.Y.S.3d 405 [4th Dept. 2017] ; Gunsburg v. Gunsburg , 173 A.D.2d 232, 232, 569 N.Y.S.2d 641 [1st Dept. 1991] ). Plaintiff chose the latter option, but the court, and this Court, had the authority to convert the motion to a plenary action (see CPLR 103 [c] ; Matter of State of New York [Essex Prop. Mgt., LLC] , 152 A.D.3d 1169, 1170-1171, 59 N.Y.S.3d 624 [4th Dept. 2017] ; Didley v. Didley , 194 A.D.2d 7, 11, 605 N.Y.S.2d 685 [4th Dept. 1993] ). Inasmuch as the plenary action could have been filed in Supreme Court, Oneida County, there is no reason to reverse the judgment on appeal and transfer the matter to Supreme Court, Fulton County.

We reject defendant's contention that the judgment on appeal should be reversed on the ground of laches. That defense " ‘requires both delay in bringing an action and a showing of prejudice to the adverse party’ " ( Beiter v. Beiter , 67 A.D.3d 1415, 1416, 888 N.Y.S.2d 825 [4th Dept. 2009] ; see Saratoga County Chamber of Commerce v. Pataki , 100 N.Y.2d 801, 816, 766 N.Y.S.2d 654, 798 N.E.2d 1047 [2003], cert denied 540 U.S. 1017, 124 S.Ct. 570, 157 L.Ed.2d 430 [2003] ; Santillo v. Santillo , 155 A.D.3d 1688, 1689, 64 N.Y.S.3d 840 [4th Dept. 2017] ; Denaro v. Denaro , 84 A.D.3d 1148, 1149-1150, 924 N.Y.S.2d 453 [2d Dept. 2011], lv dismissed 17 N.Y.3d 921, 934 N.Y.S.2d 370, 958 N.E.2d 549 [2011] ). We agree with defendant that there was an extensive delay by plaintiff in bringing the motion. Defendant, however, failed to make the requisite showing that he was prejudiced by plaintiff's delay in moving to enforce the terms of the stipulation (see Beiter , 67 A.D.3d at 1416, 888 N.Y.S.2d 825 ; see generally Matter of Sierra Club v. Village of Painted Post , 134 A.D.3d 1475, 1476, 23 N.Y.S.3d 506 [4th Dept. 2015] ).

We agree with defendant, however, that the court improperly calculated the amount owing to plaintiff because the statute of limitations applies to plaintiff's motion seeking arrearages for her share of defendant's pension (see Bielecki v. Bielecki , 106 A.D.3d 1454, 1454-1455, 964 N.Y.S.2d 832 [4th Dept. 2013], lv dismissed 22 N.Y.3d 909, 975 N.Y.S.2d 729, 998 N.E.2d 392 [2013], lv dismissed 25 N.Y.3d 1035, 10 N.Y.S.3d 517, 32 N.E.3d 954 [2015], rearg denied 26 N.Y.3d 945, 17 N.Y.S.3d 62, 38 N.E.3d 805 [2015] ; see generally Tauber v. Lebow , 65 N.Y.2d 596, 598, 493 N.Y.S.2d 1008, 483 N.E.2d 1140 [1985] ). It is well settled that "[a] stipulation of settlement that is incorporated, but not merged, into the judgment of divorce is a contract subject to the principles of contract construction and interpretation" ( Reber v. Reber , 173 A.D.3d 1651, 1652, 103 N.Y.S.3d 711 [4th Dept. 2019] [internal quotation marks omitted]), and an action seeking money damages for violation of a separation agreement is subject to the six-year statute of limitations for breach of contract actions (see Woronoff v. Woronoff , 70 A.D.3d 933, 934, 894 N.Y.S.2d 529 [2d Dept. 2010], lv denied 14 N.Y.3d 713, 2010 WL 2301700 [2010] ). Contrary to the court's determination, it is irrelevant that plaintiff sought the arrearages by way of motion rather than by commencement of a plenary action. Although motions to enforce the terms of a stipulation are...