Opinion
October 25, 1999
Ebonette Bates, Mount Vernon, for plaintiff.
Antonio Mareno, Yorktown Heights, for defendant.
DECISION
Plaintiff moves for post judgment relief in the nature of the execution of a Qualified Domestic Relations Order ("QDRO"). The parties were divorced by judgment dated July 25, 1986. The judgment provided that the parties waived maintenance (page 4) and that a QORO would be prepared with respect to defendant's pension (page 10). Subsequently, plaintiff has twice remarried. Additionally, in 1995, about two weeks prior to defendant's retirement, plaintiff learned that no QDRO had been submitted to the Court for filing with the pension authorities. Other than prior counsel's apparent lack of attention, there is no explanation for the nine year delay nor does the record provide an explanation for the subsequent four and one-half year delay in making this application.
Plaintiff seeks entry of a QDRO under the terms of the parties' agreement as set forth in the judgment. The proposed QDRO is in the usual format but also contains a provision recouping amounts that should have been paid from the date of defendant's retirement (April 29, 1995) at ten percent monthly.
Defendant points to plaintiff's remarriage and requests modification of the judgment with respect to the QDRO under section 248 Dom. Rel. of the Domestic Relations Law. That section mandates modification of judgments "directing payments of money for the support of the wife" on the recipient spouses remarriage. SeeCarroll v. Carroll, NYLJ 12/18/95, p. 35, col. 1 (Supreme Ct. Westchester), aff'd, 236 A.D.2d 353 (2d Dep't 1997).
Section 248 Dom. Rel. of the Domestic Relations Law applies only to spousal maintenance awards. Jones v. Jones, 84 A.D.2d 893 (3rd Dep't 1981) (exclusive possession of marital premises to ex-wife and children was in the nature of child support and not maintenance). Astute commentators and learned treatises observe that section 248 should not apply to distributive property awards which are not considered maintenance. Scheinkman, Practice Commentary to Domestic Relations Law § 248, McKinney's Consol. Laws of New York, Book 14 (Sections 220 to End), pp. 817-18; 2 Foster, Freed, Brandes, Law the Family New York (2d ed.), § 2:32, p. 229; 48A N Y Jur.2d, Domestic Relations, § 2617.
Clearly, the award of a portion of defendant's pension is in the nature of equitable distribution of marital property and not maintenance. Majauskas v. Majauskas, 61 N.Y.2d 481 (1984). Therefore, section 248 Dom. Rel. of the Domestic Relations Law does not apply herein and defendant's application is denied.
There is no estoppel or undue laches to bar relief being awarded to plaintiff. 57 N.Y. Jur.2d, Estoppel, §§ 13, 15; 75 N.Y. Jur.2d, Limitations Laches, §§ 333,337. Defendant does not claim any prejudice nor does he assert that the extra ten percent sought to recapture arrears is burdensome. Consequently, the motion is granted and the QDRO is signed.