ROBERT R. SPROLE III, Respondent,
LINDA S. SPROLE, Appellant.
Calendar Date: October 11, 2017
S. Sprole, Ithaca, appellant pro se.
Beach, PLLC, Syracuse (John A. Cirando of D.J. & J.A.
Cirando of counsel), for respondent.
Before: McCarthy, J.P., Lynch, Rose, Clark and Pritzker, JJ.
MEMORANDUM AND ORDER
(1) from an order of the Supreme Court (Ames, J.), entered
April 29, 2016 in Tompkins County, which awarded defendant a
share of plaintiff's marital interest in a 401(k) account
pursuant to a qualified domestic relations order, and (2)
from an order of said court, entered April 29, 2016 in
Tompkins County, which awarded defendant a share of
plaintiff's marital interest in a retirement trust
account pursuant to a qualified domestic relations order.
to a September 2015 judgment, plaintiff (hereinafter the
husband) and defendant (hereinafter the wife) were granted a
divorce. Supreme Court ordered "that the marital portion
of [the husband's] Therm, Inc. 401(k) account and [his]
interest in the Therm, Inc. Employee Retirement Trust will be
divided equally between [the husband] and [the wife] by
[d]omestic [r]elations [o]rder and [q]ualified [d]omestic
[r]elations [o]rder [hereinafter QDRO], and said [o]rders
will be prepared and filed by the attorney for [the
wife]." Through a letter dated April 26, 2016, the
husband submitted a proposed QDRO as to the 401(k) account
and another proposed QDRO as to the retirement trust account
for the court to sign. On April 29, 2016, the court signed
both QDROs. The wife appeals.
appeal lies as of right from a qualified domestic relations
order that merely implements those portions of the judgment
of divorce awarding one spouse an interest in the marital
portion of the other spouse's retirement pension"
(Bernstein v Bernstein, 18 A.D.3d 683, 683-684
; see Smith v Smith, 59 A.D.3d 905, 906 n
). In the judgment of divorce, Supreme Court
specifically ordered "that the marital portion of [the
husband's 401(k) account] and [his] interest in the
[retirement trust account] will be divided equally between
[the husband] and [the wife] by... [QDROs]." Such decree
reflects the parties' stipulation during the trial that
the wife would receive half of the marital portions of both
accounts and that the marital portions would be calculated
according to the Majauskas formula. Further, the
parties stipulated that the marital portion of the 401(k)
account was $118, 514.42, and the QDRO awarded the wife $59,
257.21, which is 50% of that sum. Notably, the wife does not
challenge the sum that she was awarded, and the arguments she
raises as to the substance of the QDRO are meritless. Under
these circumstances, where the QDRO pertaining to the 401(k)
account merely implemented the parties' stipulation, the
wife's appeal from this QDRO must be dismissed (see
Bernstein v Bernstein, 18 A.D.3d at 684). Finally, while
the wife claims that she was deprived notice to object to the
QDRO, since it merely implemented the stipulation within the
divorce, there was no prejudice and the wife is not an
aggrieved party (see CPLR 5511; Weissman v
Weissman, 99 N.Y.2d 638, 638 ).
wife similarly argues that the husband improperly filed a
proposed QDRO pertaining to the retirement trust account.
Although this QDRO states that the wife is entitled to a
20.5% interest in the entire account, it does not explain how
that figure was reached. While the record reflects the date
of the parties' marriage and the date the husband
commenced the divorce action, it is devoid of the dates on
which the husband entered the retirement trust account and
the last date benefits were earned from the retirement trust
account. Therefore, as the record sufficiently reflects the
pertinent issue - the lack of proof to determine the relevant
dates caused, in part, by the lack of notice to the wife -
this Court will treat the wife's notice of appeal from
this QDRO as an application for leave to appeal and grant the
application (see Wojtaszek v Wojtaszek, 64 A.D.3d
1035, 1036 ; Lavin v Lavin, 263 A.D.2d 932,
932-933 ; see also Zebrowski v Zebrowski, 28
A.D.3d 883, 884 ). Unlike the QDRO pertaining to the
401(k) account, where the wife's lack of notice did not
divest the record from information to ensure that the QDRO
reflected the parties' stipulation, the dates necessary
to calculate the wife's share of the retirement trust
account are missing, and she was not given an opportunity to
pose an objection to the sum reflected in the husband's
proposed QDRO pertaining to the retirement trust account. As
such, we reverse this QDRO and remit this matter to Supreme
Court to allow for evidence to be proffered as to the
pertinent dates necessary to calculate the wife's
interest in the retirement trust account under the
Majauskas formula (see Macaluso v Macaluso,
124 A.D.3d 959, 961 ; Church v Church, 169
A.D.2d 851, 852 ).
contrary to the wife's contention, Supreme Court properly
and quite competently exercised its jurisdiction over this
matter (see NY Const, art VI, § 7 [a]; 151
A.D.3d 1413 ; 151 A.D.3d 1405');">151 A.D.3d 1405 ; 148 A.D.3d 1337');">148 A.D.3d 1337
; see also Holloway v Holloway, 35 A.D.3d
1126, 1128 ; Gunsburg v Gunsburg, 173 A.D.2d
232, 232 ). The wife's additional arguments lack
McCarthy, J.P., Lynch, Rose and Clark, JJ., concur.
that the appeal from the order entered April 29, 2016
pertaining to defendant's 401(k) account is dismissed,
that the order entered April 29, 2016 pertaining to
defendant's retirement trust account is reversed, on the
law, without costs, and matter remitted to the Supreme Court
for further ...