Perri v. Perri

• Decision Date: 09 September 1982
• Citation: 115 Misc.2d 478,454 N.Y.S.2d 277
• Parties: Marie PERRI v. Louis PERRI.
• Court: New York Supreme Court

Page 277

454 N.Y.S.2d 277

115 Misc.2d 478

Marie PERRI v. Louis PERRI.

Supreme Court, Special Term Kings County, Part V.

Sept. 9, 1982.

Leroy F. Caruso, Brooklyn, for plaintiff.

Richard J. Sgarlato, Brooklyn, for defendant.

MEMORANDUM

LEWIS L. DOUGLASS, Justice.

Plaintiff-wife Marie Perri commenced this action for divorce on the grounds of cruel and inhuman treatment by defendant-husband Louis Perri. Defendant-husband counterclaims for a judgment of divorce on the same grounds. Both parties seek equitable distribution of the marital property, including a matured pension fund which, at the time of the commencement of this action, was issuing monthly payments to the husband, a retired New York City police officer.

The parties appeared before this court on June 21, 1982 and June 22, 1982. The findings of fact for the non-contested action were determined by inquest. Neither party challenged the other's testimony through cross-examination. The facts of this case as set forth in the record convince this court that this marriage has deteriorated to the point where continued cohabitation is both improper and unsafe for each party. Therefore, a judgment of divorce as provided by Domestic Relations Law § 170(1) is hereby granted as to both parties (Eschevarria v. Eschevarria, 40 N.Y.2d 262, 386 N.Y.S.2d 653, 353 N.E.2d 565 ).

The couple was married on June 22, 1958, settled into a home on Batchelder Street in Brooklyn, and raised three children who are now over the age of 18. One son, Steven, 19, still lives at home, but is employed. Mr. Perri joined the New York City Police Department shortly after his marriage and is now retired on pension. About the same time he retired, the marriage fell apart and divorce was contemplated. Besides his pension, which after deductions amounts to $185.00 per week, Mr. Perri is employed as a truck driver.

Mrs. Perri devoted her married years to working as a homemaker and raising the children. Since the marriage has deteriorated, for the past year and a half she has been working as a clerk-typist. That entry-level position provides a net salary approximately equal to Mr. Perri's salary as a truck driver. In fashioning a judgment, the court shall be sensitive to what is fair and equitable to the parties, given past consideration for each party's contributions to the marriage plus present consideration for each party's current circumstances and living needs.

In making her claim for equitable distribution of his pension, plaintiff contends that because the monies in the pension were accrued while the couple was married, the pension should be considered marital property. Defendant argues that because the pension has matured and he has been receiving the money, it is to be treated as his income and thus, separate property.

There can be no doubt that all vested pension funds, except for disability pensions and military retirement pensions, are marital property and subject to equitable distribution (Majauskas v. Majauskas, 110 Misc.2d 323, 441 N.Y.S.2d 900 Martinez v. Martinez, N.Y.L.J. 10/13/81, p. 17; and 94 A.L.R.3d 176). The pension benefits are consideration for past services, i.e., services rendered while an active member of the Department.

During his time of service with the Police Department, the couple was married and all income was the product of the partnership they created. Plaintiff's work as a homemaker was equally important as defendant's and plaintiff, therefore, is entitled to a share of his earnings. Plaintiff reasonably expected support in the years to come from the monies earned during the marriage and put in the pension fund. Plaintiff had foregone the enjoyment of those benefits with an expectation of sharing in them at a later date.

Defendant concedes that if the pension had not yet matured plaintiff would be entitled to a share of the benefits. That defendant is already receiving such benefits...