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KAHN v. KAHN

August 27, 1992

MIRIAM K. KAHN, Plaintiff, against ALFRED J. KAHN and TEACHERS INSURANCE AND ANNUITY ASSOCIATION AND COLLEGE RETIREMENT EQUITIES FUND, Defendants.

GOETTEL


The opinion of the court was delivered by: GERALD L. GOETTEL

GOETTEL, D.J.,

This case involves a struggle between plaintiff Miriam K. Kahn and her former husband, defendant Dr. Alfred J. Kahn, over the future of certain pension benefits. Plaintiff, who is now seventy years old and a resident of New York, married Alfred Kahn in 1949. After providing economic support for the first three years of their marriage while her husband obtained his doctoral degree, plaintiff put aside her career to became a homemaker and raise their family.

 Over the next forty years, Alfred Kahn pursued a successful career as a tenured professor at Columbia University and an international social policy consultant. During the course of his employment at Columbia University, Dr. Kahn was issued a deferred fixed-type retirement annuity contract in 1947 by defendant Teachers Insurance and Annuities Association and College Retirement Equities Fund (hereinafter "TIAA") and a College Retirement Equities Fund ("CREF") variable-type retirement annuity contract in 1953. Premiums for both annuity contracts were paid by Columbia University as part of defendant's compensation.

 In 1974, after twenty-five years of marriage, defendant Alfred Kahn brought an action for divorce in the Supreme Court of New York, Westchester County claiming cruel and inhuman treatment. After a full trial, the court denied Dr. Kahn's request for divorce. Instead, the court ordered Dr. Kahn to restore to Mrs. Kahn half the proceeds of a joint bank account that he had closed out. It also ordered him to pay past support for a twenty-six month period and future spousal support of $ 500 per week.

 Dr. Kahn's motion for reargument was denied. The Appellate Division, Second Department, modified the judgment by reducing the prior support award. See Kahn v. Kahn, 55 A.D.2d 638, 390 N.Y.S.2d 160 (2nd Dep't 1976). The 1976 judgment, as modified, was affirmed by the New York Court of Appeals which held that the Kahns "marital relationship has not been legally altered" and "the parties remain husband and wife in contemplation of the law." Kahn v. Kahn, 43 N.Y.2d 203, 401 N.Y.S.2d 47, 50, 371 N.E.2d 809 (1977).

 After the New York proceedings came to a close, Dr. Kahn moved to Cliffside Park, New Jersey. In 1979, he brought an action for a "no fault" divorce in New Jersey and obtained by default a divorce decree. Plaintiff was allegedly served with process in New York but made no appearance in the New Jersey proceeding. In New York, she sought unsuccessfully to enjoin the New Jersey proceeding arguing that Dr. Kahn was not a bona fide resident of New Jersey. A final judgment of divorce was granted by the Superior Court of New Jersey in April 1980. See Kahn v. Kahn, No. M-1666-79 (Super. Ct. Bergen County) (Order, Calissi, J.).

 Subsequent to the New Jersey action, plaintiff brought an action against Dr. Kahn following his default in payment of support. The Westchester Family Court issued an Income Deduction Order directing Columbia University to deduct $ 500 per week from Dr. Kahn's paychecks and pay it to plaintiff as support. The Appellate Division, First Department, affirmed the Income Deduction Order. See Kahn v. Trustees of Columbia Univ., 109 A.D.2d 395, 492 N.Y.S.2d 33 (1st Dep't 1985). In two later decisions, the Appellate Division, Second Department, rejected attempts by Dr. Kahn to avoid continued compliance with the income execution and wage deduction orders. See Kahn v. Kahn, 137 A.D.2d 746, 525 N.Y.S.2d 59 (2d Dep't 1988); Schmerer Ex. Rel. Kahn v. Kahn, 137 A.D.2d 758, 525 N.Y.S.2d 60 (2d Dep't 1988).

 In June 1989, defendant retired from the full-time faculty at Columbia while remaining a part-time member of the faculty and director of the Cross-National Studies of Social Service Systems. The value of his fully vested and matured TIAA-CREF pension at that time was approximately $ 699,000. Shortly before his retirement, defendant applied to TIAA-CREF to commence annuity payments under the single life annuity option on July 1, 1989. However, a few years earlier, plaintiff had advised TIAA-CREF in writing that she did not waive, nor intend to waive, the provision of Retirement Equity Act of 1984 ("REACT"), that mandated a joint life and survivor annuity absent a written waiver by the non-pension holding spouse.

 In September 1989, plaintiff applied by order to show cause in the Supreme Court, Westchester County, for an order directing TIAA-CREF to only honor an application by Dr. Kahn for annuity payments that provided for joint life and survivor annuity. TIAA-CREF removed that proceeding to this court on October 16, 1989.

 In Family Court, Westchester County, plaintiff also sought to enforce a May 1989 Family Court Income Deduction Order (itself an outgrowth of Dr. Kahn's refusal in 1982 to comply with an earlier Family Court order) directing TIAA-CREF as successor garnishee to transmit the $ 500 per week support to plaintiff. On October 10, 1989, TIAA-CREF removed the Family Court case to this court.

 On the same day, TIAA-CREF filed an interpleader complaint in the United States District Court, District of New Jersey, requesting the court to determine whether Dr. Kahn must choose the joint life and survivor annuity option and to declare the respective rights of Dr. Kahn and Mrs. Kahn to the pension annuities. In December 1989, the New Jersey case was transferred to this court and the three cases were consolidated.

 In March 1990, this court entered an Interim Order under which TIAA-CREF began paying defendant Kahn a joint life and survivor annuity with Mrs. Kahn named as the second annuitant solely for purposes of establishing the measuring life upon which Dr. Kahn's annuity payments are calculated. The Interim Order also directed TIAA-CREF to transmit the monthly support payments to plaintiff. *fn1" At present, plaintiff only receives sums from TIAA-CREF which represent her $ 500 weekly support from Dr. Kahn.

 II. DISCUSSION

 Plaintiff has moved for summary judgment pursuant to REACT seeking a court order granting her a joint and survivor annuity option under Dr. Kahn's pension, one-half interest in that pension, and a continuing garnishment order over Dr. Kahn's portion of the pension due to his failure to comply with earlier court-ordered payments. Defendant Alfred Kahn has cross-moved for summary judgment for a declaration that plaintiff is not entitled to require him to elect the joint and survivor annuity option. Both parties contend that no genuine issues of material fact exist.

 The standards for resolving motions for summary judgment border on common knowledge. To prevail, the moving party must demonstrate "that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The court's function in this regard is not to resolve disputed issues of facts but solely to determine if such genuine issues of fact exist.

 All ambiguities must be resolved and all inferences drawn in favor of the party defending against each summary judgment motion. Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985). "Summary judgment is appropriate when, after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Murray v. National Broadcasting Co., 844 F.2d 988, 992 (2d Cir.), cert. denied, 488 U.S. 955, 102 L. Ed. 2d 380, 109 S. Ct. 391 (1988).

 In 1984, Congress enacted the Retirement Equity Act of 1984 ("REA"), Pub.L.No. 98-397, 98 Stat. 1426, to expand the rights of participants' spouses under ERISA. See 29 U.S.C. § 1055. REA includes a requirement that certain types of pensions, including the TIAA-CREF pensions at issue here, provide a Joint and Survivor Annuity ("JSA") benefits to a participant's spouse. See 28 U.S.C. § 1055(a). A participating spouse is not permitted to elect to waive the qualified joint and survivor annuity option unless the non-participant spouse consents in writing to waive JSA benefits. 28 U.S.C. § 1055(c)(2).

 The first issue presented by these summary judgment motions is whether a participant's former spouse has a right under REA to JSA benefits. Defendant argues that after the 1980 New Jersey divorce judgment Mrs. Kahn can no longer be considered his "spouse" under ERISA. Thus, he argues, plaintiff is not entitled to invoke REA to compel him to choose the JSA option. Since 1974, plaintiff has doggedly contested Dr. Kahn's efforts to divorce her. Besides challenging the validity of the New Jersey judgment of divorce, plaintiff argues ...


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