Opinion
May 10, 1999
Appeals from Order of Supreme Court, Erie County, Joslin, J. — Rearguement.
PRESENT: PINE, J. P., WISNER, PIGOTT, JR., AND JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: During the marriage, defendant husband was a professor at the State University of New York (SUNY) in Buffalo. He was a participant in the SUNY Optional Retirement Program ( see, Education Law art 8-B) and entered into retirement annuity contracts with the Teachers Insurance and Annuity Association (TIAA) and the College Retirement Equity Fund (CREF) that were his property ( see, Education Law § 391). When the parties divorced in 1971, the judgment of divorce required the husband to designate plaintiff wife "as the irrevocable beneficiary of one-half of all benefits" with respect to those annuity contracts "which are vested in the [husband] as of June 17, 1971 * * * in the amount that they presently exist". The judgment further provided that "in the event of the [wife's] death or remarriage the [husband] shall designate the infant child of the parties as the irrevocable beneficiary of the same amount presently provided for the wife".
In March 1998 Supreme Court granted the wife's motion seeking a Qualified Domestic Relations Order (QDRO) to implement the judgment of divorce and entered a QDRO that awards the wife a present interest in the husband's annuities "as [the] sole and exclusive property of the wife". The husband filed a timely notice of appeal from that order and then moved, inter alia, for reargument and vacatur of the QDRO.
We reject the wife's contention that the motion for reargument was not timely. When a notice of appeal has been timely filed, a motion to reargue may be made at any time "prior to the submission of the appeal or at the latest before the appeal is determined" ( Bray v. Gluck, 235 A.D.2d 72, 74, lv dismissed 91 N.Y.2d 1002).
Supreme Court granted reargument and, upon reargument, adhered to its earlier decision. That was error. In providing that, in the event of the wife's death or remarriage, the husband shall designate the parties' child as the irrevocable beneficiary of the wife's interest in the husband's annuities, the judgment of divorce did not thereby divest the husband of his present ownership of that interest. Furthermore, while the QDRO awards the wife "interim interest and her dividend earnings [on her interest in the husband's annuities] * * * until the transfer is recorded by TIAA-CREF" there is no such provision in the judgment of divorce ( see, McWade v. McWade, ___ A.D.2d ___ [decided Sept. 21, 1998]; Twiss v. Twiss, 245 A.D.2d 502). In view of our determination, we do not address the husband's remaining contentions.
Finally, the court did not abuse its discretion in denying the wife's application for counsel fees on the husband's motion to reargue. We therefore modify the order by granting in part the husband's motion and vacating the QDRO.