Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Schunke v. Schunke

Supreme Court, Rockland County

April 4, 2017

Eileen Schunke, Plaintiff,
v.
John A. Schunke, Defendant.

          For Plaintiff Law Offices of Timothy J. Brennan

          For Defendant Berkman Bottger Newman & Rodd, LLP

          Robert M. Berliner, J.

         The following papers, numbered 1 to 6, were read in connection with the Plaintiff's application seeking recovery of certain pension payments made to Defendant as well as counsel fees in connection with this post-judgment application:

         Order to Show Cause/Affidavit in Support/Attorney Affirmation//Exhibits(A-G) 1-3

         Affirmation in Opposition/Affidavit in Opposition/Exhibits(A-D) 4-5

         Attorney Affirmation in Reply/Exhibit(A) 6

         Upon the foregoing papers, it is ORDERED that this application is disposed of as follows:

         The parties were divorced by Judgment of Divorce signed by the Court on May 29, 2014. This Judgment incorporated and did not merge a Stipulation of Settlement dated April 22, 2014 (hereinafter "the Stipulation"). The Stipulation divided the marital portion of the parties' respective pensions and other retirement assets. Plaintiff submitted a Domestic Relations Order regarding Defendant's New York City Fire Department Pension in September of 2015. The Court signed this DRO on October 8, 2015, which Plaintiff's counsel then provided to the New York City Fire Department Pension. Plaintiff received her first $1, 762.88 monthly payment from the F.D.NY Pension on or about November 30, 2015. Defendant's F.D.NY Pension was in pay status in May of 2014 and Plaintiff seeks to recover $31, 731.84 in her instant application. This sum constitutes her 50% share of the marital portion of payments made by the F.D.NY Pension Fund to Defendant from May 2014 through October 2015.

         Plaintiff avers that Defendant wrongfully retained her 50% share of the marital portion of F.D.NY Pension payments for this 18 month period and requests that the Court direct him to immediately remit this sum to her or authorize the entry of a separate DRO providing for payments at a rate of $1, 762.88 per month. Plaintiff argues that her interest in Defendant's F.D.NY Pension vested upon the parties' execution of the Stipulation on April 22, 2014. Thus, the DRO submitted was merely the procedural mechanism employed to effectuate payment of one spouse's interest in the other spouse's pension pursuant to the Stipulation and any delay or failure to submit the DRO has no bearing upon her rights to a portion of the F.D.NY Pension. Plaintiff cites the Second Department case of Kraus v Kraus (131 A.D.3d 94 [2d Dept 2015]) in support of her position and submits that she is entitled to payments between the date of the Stipulation and the submission of the DRO.

         Plaintiff also submits that Defendant should be responsible for half of the $750.00 cost associated with the preparation of an additional DRO pursuant to the terms of their Stipulation. Lastly, Plaintiff seeks an award of counsel fees pursuant to DRL §238 based upon Defendant's alleged unreasonable position regarding these "arrears" and the necessity to bring this application.

         In opposition, Defendant argues that the Stipulation and DRO constitutes the entirety of the parties' agreement regarding his F.D.NY Pension and Plaintiff's application seeks relief beyond these two documents. Defendant accuses Plaintiff of seeking a windfall payment or a DRO that was not contemplated in the Stipulation and modification of the Stipulation approximately two years after its execution. Defendant makes much of Plaintiff's delay in submitting a DRO to the F.D.NY Pension Fund and submits that he should not be "penalized" for her failure to do so in a timely manner.

         Plaintiff relies heavily upon Kraus v Kraus, which provides, in pertinent part,

"When the distribution of pension benefits between former spouses is accomplished through a QDRO obtained pursuant to a stipulation, such QDRO can convey only those rights to which the parties stipulated as a basis for the judgment. If a QDRO is inconsistent with the provisions of a stipulation or judgment of divorce, courts possess the authority to amend the QDRO to accurately reflect the provisions of the stipulation pertaining to the pension benefits. Thus, a court cannot issue a QDRO encompassing rights not provided in the underlying stipulation or one that ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.