payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan." 29 U.S.C. § 1056(d)(3)(B)(i). The statute defines a domestic relation order as:
any judgment, decree, or order (including approval of a property settlement agreement) which relates to the provision of . . . alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant, and is made pursuant to a State domestic relations law (including a community property law).
29 U.S.C. § 1056(d)(B). Applying these provisions to the present case, plaintiff would possess a right to the JSA if a QDRO was issued at some point during the Kahns' prolonged divorce proceedings which recognized her right under New York law to remain a spouse after the divorce or separation entitling her to a share of Dr. Kahn's pension for purposes of receiving survivor benefits.
Unfortunately, plaintiff was not be entitled to a share of Dr. Kahn's pensions under the New York law on equitable distribution that governed when the New Jersey divorce judgment was entered. As noted above, the governing New York law at that time did not empower the state courts to recognize her right to a portion of Dr. Kahn's pensions. Therefore, none of the prior separation orders could qualify as a QDRO that might have guarded plaintiff's right to the JSA after the New Jersey divorce judgment was issued.
Plaintiff also suggests that inherent in REA is the authority for this court to direct Dr. Kahn to select the JSA option. She points to §§ 1056(d)(3)(B)(i)(I) and (d)(3)(K) to support her claim. Section (d)(3)(K) does include former spouses within its definition of "alternate payee." However, the provision says that only former spouses who are "recognized by a domestic relations order as having a right to receive all, or a portion of, the benefits payable under a plan with respect to such participant" qualify as an alternate payee.
Under REA, state law is the root of a QDRO since domestic relations orders must be based upon state domestic relations law. See 29 U.S.C. § 1056(d)(3)(B)(ii). The prior separation orders, even if deemed a domestic relations order, did not and could not recognize in plaintiff a right to share in Dr. Kahn's pensions given New York law as it stood when New Jersey granted the divorce judgment. Likewise, this court is unable to issue its own QDRO.
New York's equitable distribution law did not apply to divorce actions unless they were commenced on or after July 19, 1989. The New Jersey divorce action concluded in April 1989. Thus, the "new" rights of spouses to equitable distribution did not apply to plaintiff, and no QDRO could have been issued recognizing plaintiff's right to a share in the pension.
Accordingly, we are constrained to hold that plaintiff, now the former spouse of Dr. Kahn, retains no rights under REA or New York's Domestic Relations Law to compel Dr. Kahn to select the JSA option for his pensions. Any domestic relations order must be made pursuant to state domestic relations law, and New York's does not recognize a former spouse's right to share in the working spouse's pension if the divorce action commenced before July 19, 1980 as the New Jersey action had.
We recognize that the result here seems overly harsh. Mrs. Kahn is left with no share in her former husband's pensions despite their many years of marriage. If Dr. Kahn passes away before Mrs. Kahn, his obligation to pay support to her may terminate. Yet, this court is not empowered to revisit the state legislature's judgment that its equitable distribution law is not to be applied retroactively.
Mrs. Kahn puts forth the notion that her share in Dr. Kahn's pensions should be considered "support" under a broad interpretation of that term. New York courts have embraced a broad definition of "support" that confers "wide latitude for judicial discretion." See, e.g., Kahn v. Trustees of Columbia Univ. 492 N.Y.S.2d at 37. Plaintiff may be able to incorporate this argument into a motion in state court to increase the support payments she currently receives from Dr. Kahn on equitable grounds to account for health problems, changed needs, or to anticipate provision of basic necessities should he pass away first.
Despite her failure to collaterally attack the validity of the New Jersey action over the past ten years, under New York Domestic Relations Law § 236 Part A, given a valid foreign divorce, plaintiff also might still petition a state court for alimony award based upon need. See Scheinkman, supra, at 183.
For our purposes, however, because no material issues of fact are in genuine dispute here, we deny plaintiff's summary judgment motion and grant summary judgment in favor of defendant Dr. Kahn. To the extent that the Interim Order directed defendant TIAA-CREF, as garnishee, to transmit plaintiff's monthly support payments to plaintiff directly, we hold that this payment structure shall continue on a permanent basis. The Clerk shall enter judgment for defendant.
Dated: White Plains, New York.
August 27, 1992.
GERARD L. GOETTEL