Opinion
Index No. SU-2022-007377
04-03-2023
In the Matter of the Application of Nicole P.
LAW OFFICE OF NANCY DYER Nancy L. Dyer, Esq. Counsel for Petitioner ALDERMAN & ALDERMAN Richard B. Alderman, Esq. Counsel for Respondent
Unpublished Opinion
LAW OFFICE OF NANCY DYER Nancy L. Dyer, Esq. Counsel for Petitioner
ALDERMAN & ALDERMAN Richard B. Alderman, Esq. Counsel for Respondent
Kevin P. Kuehner, J.
Currently before the Court is an application brought by Petitioner, Nicole P., for an Order awarding her a Majauskas share, with pre- and post-survivorship benefits, of Respondent's (a) military retirement benefits, and (b) pension benefits from his employment with General Electric. Petitioner also requests an Order directing Respondent to provide a copy of his complete military service record for the purpose of preparing a Military Qualifying Order. Respondent opposes Petitioner's application.
After carefully considering the parties' respective submissions and having heard and duly considered oral arguments from counsel during the Court's motion term held on, Petitioner's application is granted in part for the reasons set forth below.
I. RELEVANT BACKGROUND
The parties were married on January 9, 1991, and were subsequently divorced in Switzerland after executing a settlement agreement dated May 12, 2017. Respondent is retired from the U.S. military and is currently employed by General Electric ("GE") in Switzerland. Respondent began his GE employment during the parties' marriage and part of his military service also occurred during the marriage.
On September 9, 2016, the parties engaged the services of a Swiss mediator with the intent of resolving all economic issues related to their divorce. (Resp. Aff. dated 02/17/2023, at ¶ 3). According to Respondent, whether Petitioner would share in his retirement benefits was a significant issue during the mediation process, but the parties ultimately agreed that Respondent would retain all of his benefits. (Id. at ¶ 7[b]). In exchange for foregoing a share of his retirement benefits, Respondent argues that he agreed to increase the amount and duration of maintenance payments to Petitioner. (Id. at ¶ 7[e]; Alderman Aff. dated 10/24/2022, at ¶ 8).
The mediation process resulted in the execution of a settlement agreement, which was prepared in English, on April 28, 2017. (Resp. Aff. dated 02/17/2023, at ¶ 4). Thereafter, the parties were advised that the Swiss Court would only accept documents written in German before a divorce could be granted. (Id. at ¶ 5). As a result, the parties had their executed separation agreement translated into German by a certified translator and executed the translated agreement on May 12, 2017. (Id.). Because the parties do not have the ability to read or understand the German language, they were unable to personally verify the accuracy of the translated separation agreement. (Id. at ¶ 7[h]). The parties were represented by the mediator for the duration of the proceedings before the Swiss court. (Id. at ¶ 7[g]).
On or about September 15, 2022, Petitioner filed the instant application seeking distribution of Respondent's retirement benefits. In addition to the arguments noted above, Respondent argues that Petitioner waived any claim to his pension and military benefits based on the terms of the English version of the settlement agreement. (Id.) The English agreement provides, in relevant part, as follows:
5. Dividing of pension funds
"All USA pensions are divided according to NY law; this includes military pension and [Respondent's] GE pension, and any other pensions and social security government pension[s]."(Ex. "A" to Resp. Aff. dated 02/17/2023) (emphasis added).
After receiving Petitioner's application, Respondent was advised by his Swiss attorney that the German version of the parties' separation agreement did not contain an accurate translation of the pension provision in the English agreement. (Id. at ¶ 7). Specifically, according to Respondent, the pension provision in the German agreement provides as follows:
5. Allocation of the pension fund
"All U.S. pensions are shared under New York State law, this includes the U.S. Army Veteran's Pension and his GE pension, as well as any other government pensions and AHV pensions."(Resp. Aff. dated 02/17/2023 at ¶ 5; Ex. "B" to Resp. Aff. dated 02/17/2023) (emphasis added).
Respondent argues that the phrase "are divided," as used in the English version of the separation agreement, should be interpreted as a statement of fact in the present tense, meaning that there shall be no future division of his retirement benefits. (Resp. Aff. dated 02/17/2023 at ¶ 6). Conversely, Respondent argues that the phrase "are shared," as used in the German version of the separation agreement, indicates that his retirement benefits are to be shared in the future. (Id.) Respondent argues that the English version of the separation agreement represents the intent of the parties and, if the German agreement is corrected to accurately reflect the language used in the English agreement, Petitioner would not be entitled to any portion of his retirement benefits. (Id. at ¶ 8).
In fact, Respondent commenced a recent proceeding in the Swiss court seeking to correct/amend the German version of the agreement due to the alleged translation mistake. On January 16, 2023, the Swiss court issued a decision dismissing Respondent's application and declared the German agreement to be legally valid and binding. (Decision attached to Dyer Affirm. dated 03/27/2023). In so ruling, the Swiss court noted that "it appears to be extremely doubtful... whether the two versions actually do differ[.]"
Despite the Swiss court's ruling, Respondent argues that this Court should find that a mutual mistake of fact exists and correct the language in the German version of the agreement to reflect the parties' intent regarding Respondent's retirement benefits. (Resp. Aff. dated 02/17/2023 at ¶ 9). Alternatively, Respondent argues that the Court should find the differing terms used in the pension provisions of the two agreements are ambiguous. (Id. at ¶ 10). Should the Court determine that the terms are ambiguous, Respondent requests a hearing to determine the parties' intent regarding the distribution of his retirement benefits. (Id.) Finally, should the Court determine that Petitioner is entitled to a portion of his retirement benefits, Respondent requests a hearing for the purpose of determining what would constitute a fair distribution of his benefits. (Id. at ¶ 11).
II. DISCUSSION
A. Plenary Action
As a threshold matter, the Court notes that, although Petitioner is seeking allocation of an undistributed marital asset, she has not commenced a proceeding for equitable distribution. "[T]o provide for the distribution of property not affected by a foreign judgment of divorce, Domestic Relations Law § 236(B)(2) and (5) provide that a divorced spouse who possesses an interest in marital property within this State may commence an action for equitable distribution of property following entry of a foreign judgment of divorce" (Peterson v. Goldberg, 180 A.D.2d 260, 262 [2d Dept. 1992] [emphasis added]; see also Mattwell v. Mattwell, 194 A.D.2d 715 [2d Dept. 1993] [same]; Young v. Knight, 236 A.D.2d 534, 535 [2d Dept. 1997] [same]; Ahmad v. Khalil, 52 Misc.3d 1212[A], 2016 WL 1590938, at *5 [Sup. Ct. Kings Cnty. Apr. 11, 2016] ["A party may file a plenary action seeking equitable distribution of property located in New York after a foreign judgment of divorce is obtained where there was no action pending in New York"]). Similarly, because Respondent is challenging the enforceability of the pension provision in the parties' separation agreement, a plenary action is necessary (see Anderson v. Anderson, 153 A.D.3d 1627 [4th Dept. 2017]; Mancuso v. Graham, 173 A.D.3d 1808, 1809 [4th Dept. 2019]; Marshall v. Marshall, 124 A.D.3d 1314, 1317 [4th Dept. 2015]).
Nevertheless, upon consent of the parties and in the interest of judicial economy, the Court will convert Petitioner's application to a plenary action and address the merits of the issues presented (see Didley v. Didley, 194 A.D.2d 7, 605 N.Y.S.2d 685, 688 [4th Dept. 1993]; Verna v. Verna, 134 A.D.3d 1438 [4th Dept. 2015]).
The Court notes that, when asked during oral argument, neither party objected to the Court proceeding in this manner.
B. Collateral Attack
Turning to the merits of Petitioner's application, the Court finds that the German version of the parties' agreement is controlling. As discussed above, Respondent petitioned the Swiss court regarding the differing translations of the pension provisions and the Swiss court held that the German agreement is the legally binding agreement between the parties. Furthermore, the parties' Swiss divorce decree dated May 12, 2017, and entitled "Ruling of the President of the Court," specifically states that both the English and German versions of the parties' separation agreement "are attached to this ruling as an integral part" but that the "German version is the decisive one."
"New York courts will generally accord recognition to bilateral foreign judgments of divorce, including the terms and provisions of any agreements incorporated therein, under the doctrine of comity" (Rabbani v. Rabbani, 178 A.D.2d 637, 638 [2d Dept. 1991]; see also Greschler v. Greschler, 51 N.Y.2d 368, 376 [1980] ["In extending comity to uphold the validity of foreign country divorce decrees it is logical that we would also recognize all the provisions of such decrees, including any separation agreements which may have been incorporated therein"]). "No specific language is necessary to create an incorporation by reference. The court must look to the entire judgment of divorce and the surrounding circumstances" (S.B. v. W.A., 38 Misc.3d 780, 798-99 [Sup. Ct. Westchester Cnty. Sept. 26, 2012]). "These duly-recognized foreign judgments are thereafter immune from collateral attack in the New York courts by a party who, as here, properly appeared in the foreign divorce action, absent some showing of fraud or a violation of a strong public policy of the State" (Rabbani, 178 A.D.2d at 638).
Here, the Court notes that the issue of an impermissible collateral attack was not raised by either party. Further, Respondent has not alleged, let alone proven, that the German version of the separation agreement was procured by fraud or that the Swiss divorce proceedings violated New York public policy. Nevertheless, the remedy to address any alleged fraud, or any other perceived error, was to petition the Swiss court, which Respondent did, and the court dismissed Respondent's petition (see Kai Lin v. Dept. of Dentistry, Univ. of Rochester Med. Ctr., 120 A.D.3d 932 [4th Dept. 2014] ["A litigant's remedy for alleged fraud in the course of a legal proceeding 'lies exclusively in that lawsuit itself, i.e., by moving pursuant to CPLR 5015 to vacate the [order] due to its fraudulent procurement, not a second plenary action collaterally attacking the [order]'"]). Allowing Respondent to take a second bite of the proverbial apple by re-litigating the same issue in this Court, after receiving an unfavorable decision in Switzerland, would undermine the doctrine of comity.
Likewise, based on the current record, there is nothing to suggest that the divorce proceedings in Switzerland or the parties' separation agreement run afoul of New York's public policy (see Greschler v. Greschler, 51 N.Y.2d 368, 377 [1980] ["the public policy exception to the doctrine of comity is usually invoked only in the rare instance where the original claim is repugnant to fundamental notions of what is decent and just in the State where enforcement is sought"]). Accordingly, this Court finds no basis to disturb the Swiss court's ruling that the German version of the separation agreement is legally binding (see S.B. v. W.A., 38 Misc.3d 780, 798-99 ["There is no question that the foreign court [in Abu Dhabi] had jurisdiction over the parties at the time the divorce judgment was issued and that it was a final binding order, thereby precluding the defendant from now collaterally attacking its validity or relitigating any of its provisions"]; Tal v. Tal, 158 Misc.2d 703, 706 [Sup. Ct. Nassau Cnty. Feb. 8, 1993] ["A separation agreement incorporated in a valid foreign divorce judgment is also immune from challenge under the doctrine of comity, because such a challenge would essentially constitute an impermissible collateral attack on the foreign judgment"]).
Finally, the Court notes that, even if it had to address the merits of Respondent's arguments, it would still find that Petitioner is entitled to a portion of Respondent's retirement benefits. "It is well established that a separation agreement that is incorporated but not merged into a judgment of divorce is a contract subject to the principles of contract construction and interpretation. Where such an agreement is clear and unambiguous on its face, the intent of the parties must be gleaned from the four corners of the instrument and not from extrinsic evidence, and the agreement in that instance must be enforced according to the plain meaning of its terms" (Roche v. Lorenzo-Roche, 149 A.D.3d 1513, 1513-14 [4th Dept. 2017]). "Whether an agreement is ambiguous is a question of law for the court to resolve. In making that determination, the proper inquiry is whether the agreement on its face is reasonably susceptible of more than one interpretation" (id. at 1514).
Here, the subject language in the pension provisions of the two separation agreements-i.e., "are divided" and "are shared"-are not ambiguous. Rather, these phrases both suggest that Petitioner would receive some portion of Respondent's retirement benefits. A zero percent share of a retirement benefit, which Respondent argues is what was intended, would require neither sharing, nor dividing. Had the parties agreed that Petitioner would waive any right to Respondent's retirement benefits, that intent would have been clearly stated.
C. A Hearing Is Necessary to Determine Petitioner's Share of Respondent's Retirement Benefits
Having found that Petitioner is entitled to share in Respondent's retirement benefits based on the provisions contained in the German version of the parties' separation agreement, the Court will hold a hearing to determine the nature and status of Respondent's undistributed retirement assets as well as Petitioner's allocable share thereof. Respondent is directed to obtain a complete record of his military service and share with Petitioner's counsel the pertinent information related to his service that was performed during the parties' marriage (see Cowley v. Cowley, 15 A.D.3d 974 [4th Dept. 2005] [directing Supreme Court to hold "a hearing, if necessary, whether the parties were married during plaintiff's military service and, if so, defendant's share of the military service credit cost"]).
ACCORDINGLY, it is
ORDERED that Respondent is directed to obtain a complete record of his military service and provide the necessary information related to his dates of service to Petitioner no later than thirty (30) days from the date of this Decision and Order; and it is further
ORDERED that counsel for the respective parties are directed to contact chambers for purposes of scheduling a hearing to determine the distribution of any marital interest in Respondent's retirement benefits.
Papers Considered:
1. Notice of Petition dated September 13, 2022;
2. Affidavit of Nicole P., duly sworn on September 13, 2022;
3. Attorney Affirmation of Nancy Dyer with exhibits attached thereto;
4. Notice of Limited Appearance by Attorney Richard Alderman, dated October 24, 2022, on behalf of Donald P.;
5. Affidavit of Attorney Richard Alderman, duly sworn on October 24, 2022, with exhibits attached thereto;
6. Notice of Appearance by Attorney Richard Alderman, dated February 20, 2023, on behalf of Donald P.;
7. Affidavit of Donald P. duly sworn on February 17, 2023, with exhibits "A" and "B" attached thereo; and
8. Affirmation of Attorney Nancy Dyer, duly affirmed on March 27, 2023, with exhibits attached thereo.