Opinion
2002-00534
Submitted November 4, 2002.
December 16, 2002.
In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Queens County (Gavrin, J.), dated November 26, 2001, which denied her motion for a Qualified Domestic Relations Order, for an award of an attorney's fee, and to direct the defendant to transfer to her funds in his Individual Retirement Account.
Esther York, Holliswood, N.Y., appellant pro se.
Franklyn H. Snitow, New York, N.Y. (Judy H. Kim of counsel), for respondent.
Before: SANDRA J. FEUERSTEIN, J.P., NANCY E. SMITH, CORNELIUS J. O'BRIEN, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the order is modified by deleting the provision thereof denying that branch of the motion which was to direct the defendant to transfer to the plaintiff the funds in his Individual Retirement Account, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.
The plaintiff contends that the Supreme Court should have granted her application for a qualified domestic relations order (hereinafter QDRO) to satisfy judgments for arrears for maintenance and child support. We disagree.
Defaults in support and maintenance obligations may be enforced by QDROs against pension fund accounts (see Keegan v. Keegan, 204 A.D.2d 606; Bumstead v. Rasisbeck, 230 A.D.2d 759; Adler v. Adler, 224 A.D.2d 282; Renner v. Blatte, 170 Misc.2d 579). However, a QDRO cannot "require a plan to provide any type or form of benefit, or any option, not otherwise provided under the plan" ( 29 U.S.C. § 1056[d][3][D][i]; see also Scott v. Bunge Corp., 800 F. Supp. 567; Dickerson v. Dickerson, 803 F. Supp. 127). Here, the wife seeks to have a QDRO issued which would direct the defendant's pension plan to "[a]s soon as administratively feasible * * * pay to [her] * * * one or more lump sum payments." Since the defendant's plan does not provide for a lump-sum distribution, an order of immediate payment would be contrary to the terms of the plan, and would not qualify as a QDRO (see Stott v. Bunge Corp., supra; Dickerson v. Dickerson, supra). Thus, the court properly denied the plaintiff's application for a QDRO.
However, the plaintiff is entitled to the funds in the defendant's Individual Retirement Account to satisfy her judgment for arrears (see Sheehan v. Sheehan, 90 Misc.2d 673; Halliburton Co. v. Mor, 231 N.J. Super. 197).
The denial of the plaintiff's application for an award of an attorney's fee was a provident exercise of discretion (see Domestic Relations Law § 237[b]).
FEUERSTEIN, J.P., SMITH, O'BRIEN and ADAMS, JJ., concur.