Principe v. Principe

• Decision Date: 22 July 1996
• Citation: 644 N.Y.S.2d 1005,229 A.D.2d 522
• Parties: Frances PRINCIPE, Respondent, v. Ralph PRINCIPE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1005

644 N.Y.S.2d 1005

229 A.D.2d 522

Frances PRINCIPE, Respondent, v. Ralph PRINCIPE, Appellant.

Supreme Court of New York, Appellate Division Second Department.

July 22, 1996.

Lester Schwab Katz & Dwyer, New York City (Mark E. Nadjar, of counsel), for appellant.

Cahill & Cahill, Brooklyn (James H. Cahill, of counsel), for respondent.

In a matrimonial action in which the parties were divorced by a judgment dated January 18, 1991, the defendant husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Corso, JHO), dated February 8, 1995, as (1) upon reargument, adhered to the original determination made in an order and judgment (one paper) dated June 26, 1992, granting equitable distribution of the marital assets, and (2) granted the plaintiff wife's cross motion to compel the sale of certain real property in the marital estate, with the proceeds paid to her as receiver, with said funds to be held in a designated depository pending further order of the court.

ORDERED that the order is modified, on the law, by deleting the provision thereof which adhered to so much of the determination in the order and judgment dated June 26, 1992, as directed the defendant husband to pay to the plaintiff wife the sum of $483.90 each month, representing "one half the difference between the total of [the husband's] Consolidated Edison pension and his monthly Social Security benefits and the Social Security benefit being received by [the wife]"; as so modified the order is affirmed insofar as appealed from, without costs or disbursements, so much of the order and judgment dated June 26, 1992, as directed the husband to pay the wife the sum of $483.90 per month is vacated, and the matter is remitted to the Supreme Court, Kings County, for an evidentiary hearing to determine what portion of the husband's supplemental pension benefit is compensation for money earned during the course of the marriage, and for a determination of the parties' equitable shares of the husband's pension and the supplemental pension benefit, without inclusion of the parties' Social Security benefits.

The Judicial Hearing Officer (hereinafter JHO) erroneously included the parties' Social Security benefits in the equitable distribution of marital property. Social Security benefits are not a pension and are preempted by federal law from being subject to equitable distribution (see, Thomas v. Thomas, 221 A.D.2d 621, 634 N.Y.S.2d 496; ...