In the Matter of Anthony J. Christie, deceased. Diane D. Edwards-McMahon, respondent; Sandra L. Christie, appellant. File No. 257/13
Submitted - April 3, 2017
Weiner & Frankel, P.C., New Windsor, NY (Jeffrey S.
Sculley of counsel), for appellant.
Annette G. Hasapidis, South Salem, NY, for respondent.
M. LEVENTHAL, J.P., SYLVIA O. HINDS-RADIX, HECTOR D. LASALLE,
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
probate proceeding in which Diane D. Edwards-McMahon, as
executor of the decedent's estate, petitioned pursuant to
SCPA 2103 and 2104 for the turnover of property allegedly
withheld from the estate, Sandra L. Christie appeals from (1)
an order of the Surrogate's Court, Orange County (Onofry,
S.), dated September 16, 2014, which granted Diane D.
Edwards-McMahon's motion for summary judgment on the
petition and denied her motion pursuant to CPLR 3211(a) to
dismiss the petition and for summary judgment dismissing the
petition, and (2) a decree of the same court dated October
15, 2014, which, upon the order, inter alia, directed her to
disgorge to the estate funds received from the decedent's
that the appeal from the order is dismissed; and it is
further, ORDERED that the decree is affirmed; and it is
further, ORDERED that one bill of costs is awarded to Diane
appeal from the order must be dismissed because the right of
direct appeal therefrom terminated with the entry of the
decree (see Matter of Aho, 39 N.Y.2d 241, 248). The
issues raised on the appeal from the order are brought up for
review and have been considered on the appeal from the decree
(see CPLR 5501[a]).
1969, the decedent, Anthony J. Christie (hereinafter the
decedent), and Sandra L. Christie (hereinafter Sandra) were
married. Throughout their marriage, the decedent was employed
by International Business Machines (hereinafter IBM) and
earned a pension.
1987, the couple entered into a separation agreement wherein
Sandra waived "all right, title and interest to any
pension benefits the [decedent] may ha[v]e with his employer,
I.B.M. Corp., as well as any and all prior or future pension
rights he may have." However, the couple did not divorce
at that time.
1995, the decedent retired from IBM, and he began receiving
his pension in 1996. The decedent elected to receive his
pension benefits pursuant to a plan that included a
"qualified joint and survivor annuity" (29 USC
§ 1055[a]; hereinafter QJSA), a type of plan defined
by the Federal Employee Retirement Income Security Act of
1974 (29 USC ch 18; hereinafter ERISA). The decedent
designated Sandra as the beneficiary of the QJSA. Pursuant to
this plan, if Sandra survived the decedent, she would
continue to receive a portion of the pension benefit for the
remainder of her lifetime.
1998, the decedent and Sandra entered into a second
separation agreement in which the decedent agreed to pay
Sandra $60, 000 "in exchange for [Sandra's] interest
in the [decedent's] retirement/pension and/or bank
accounts in effect at the time of the signing of this
Agreement, and the waiving of maintenance." The decedent
and Sandra were divorced in 1999 by a judgment which
incorporated, but did not merge, the terms of both separation
agreements. The decedent never changed his designation of
beneficiary for his pension benefits. In 2003, the decedent
married Diane D. Edwards-McMahon (hereinafter Diane), and in
2013, he died. Diane was appointed executor of the
the decedent's death, the IBM pension plan began paying
benefits to Sandra pursuant to the terms of the QJSA. Diane,
as executor of the decedent's estate, petitioned pursuant
to SCPA 2103 and 2104 for the turnover of the QJSA benefits
to the estate, alleging that Sandra waived her right to those
benefits. Diane moved for summary judgment on her petition,
and Sandra moved pursuant to CPLR 3211(a) to dismiss the
petition and for summary judgment dismissing the petition.
The Surrogate's Court granted Diane's motion and
denied Sandra's motion, finding that Sandra waived her
right to the QJSA benefits, and imposed a constructive trust
on the proceeds of the QJSA in Diane's favor. Thereafter,
the court entered a decree, inter alia, directing Sandra to
disgorge the proceeds of the QJSA to the estate. Sandra
appeals. We affirm.
Internal Revenue Code defines a "qualified joint and
survivor annuity" as an annuity which, inter alia, is
"for the life of the participant with a survivor annuity
for the life of the spouse" (26 USC § 417[b]).
If a participant dies after the annuity starting date, the
spouse to whom the participant was married on the annuity
starting date is entitled to QJSA protection even if the
participant and the spouse are no ...