Kazel v. Kazel , 770 N.Y.S.2d 240 ( 2003 )

Appeal from that part of an order of Supreme Court, Onondaga County (DeJoseph, J.), entered July 30, 2002, that denied plaintiffs application insofar as it sought to modify a qualified domestic relations order by awarding plaintiff a share of decedent’s preretirement death benefits.

It is hereby ordered that the order so appealed from be and the same hereby is affirmed without costs.

Memorandum: Plaintiff, Sandra Kazel, was married to Robert Kazel for 28 years before their divorce in March 1991. At the time of the divorce, Robert was employed by Niagara Mohawk Power Corporation, for which he was still working upon his death at age 58 in March 2001. Following the death of Robert, who had remarried, plaintiff sought to share with Robert’s widow in the preretirement death benefits payable pursuant to Robert’s pension plan. Plaintiff was denied any share of those benefits on the ground that the qualified domestic relations order (QDRO) issued in conjunction with the judgment of divorce granted plaintiff an interest only in Robert’s retirement annuity, and not in the death benefits. Plaintiff thereafter commenced this proceeding seeking to modify or supplement the QDRO by awarding plaintiff a share of the death benefits.

We conclude that Supreme Court properly determined that plaintiff is not entitled to share in the preretirement death benefits pursuant to the amended decision after trial and subsequent judgment of divorce. The amended decision states only that the “pension plan” was a marital asset, that the court heard testimony with respect to the “value of the pension interests,” and that the pension interest shall be divided according to the formula promulgated by the Court of Appeals in Majauskas v Majauskas (61 NY2d 481 [1984]). The judgment of divorce ordered that the “pension plan . . . shall be divided according to the formula promulgated under [Majauskas].” Neither the amended decision nor the judgment of divorce refers to preretirement death benefits, and there was no evidence adduced at trial with respect to those benefits. The pension plan itself is not in the record and there is no proof that the court granting the judgment of divorce was aware that Robert’s beneficiaries might be entitled to preretirement death benefits. “Majauskas can govern equitable distribution of preretirement death benefits earned during the marriage, but mere mention of Majauskas does not by itself establish the parties’ intent to allocate those benefits” (McCoy v Feinman, 99 NY2d 295, 303 [2002]). The QDRO, which must comply with the terms of the judgment of divorce (see Irato v Irato, 288 AD2d 952, 952-953 [2001]), directed payment to the alternate payee, plaintiff herein, of her equitable share of an employee savings fund, which is not in dispute, and of a “pension plan.” With respect to the pension plan, the QDRO provides that “[a]t such time as the Participant . . . has retired from and is actually receiving a monthly allowance from his . . . Pension Plan or, in the alternative, at the option of this Alternate Payee, after the earlier to occur of the first date for payments allowed under the plan or after the Participant reaches the earliest retirement age under the Plan . . . the Plan is directed to pay to [plaintiff], as Alternate Payee, fifty percent (50%) of a fraction of the Participant’s monthly allowance . . . .” Because plaintiff did not seek to establish the value of the preretirement death benefits in the divorce action (see Wojtowicz v Wojtowicz, 171 AD2d 1073, 1073-1074 [1991]), and the court did not grant her a share in those benefits, we conclude that the court properly denied her application to modify the QDRO to award her a share of the preretirement death benefits.

All concur except Kehoe, J., who dissents and votes to reverse the order insofar as appealed from in accordance with the following memorandum.