Summary
In Wojtowicz v Wojtowicz (171 AD2d 1073), the Court held that in the absence of any proof establishing the existence and availability of husband's pension survivor benefits, it was an error to award wife a portion of such benefits.
Summary of this case from Kazel v. KazelOpinion
March 8, 1991
Appeal from the Supreme Court, Erie County, Flaherty, J.
Present — Denman, J.P., Boomer, Pine, Lawton and Davis, JJ.
Judgment insofar as appealed from unanimously modified on the law and as modified affirmed without costs, in accordance with the following Memorandum: We modify the judgment of divorce by deleting the fourth decretal paragraph which grants plaintiff exclusive possession of the marital residence until June, 1992, by substituting therefor a direction that it be sold in accordance with the sixth decretal paragraph. The judgment of divorce is further modified by deleting the fifth decretal paragraph, which relates to the parties' respective responsibility for payments associated with the marital residence during the period of plaintiff's exclusive possession. Absent unusual or extenuating circumstances, the sale of the marital residence should be ordered at the time of the divorce (see, Wobser v Wobser, 91 A.D.2d 826, 827; see also, Tanner v Tanner, 107 A.D.2d 980, 982). Ordinarily, exclusive possession is granted to the spouse who is awarded custody of the parties' minor children. Here, the only child of the parties living in the marital residence is a 23-year-old adult child. Defendant "should not be compelled to subsidize his adult chil[d] by providing living quarters for [him]" (Wobser v Wobser, supra, at 827). Upon a consideration of the relevant statutory factors (see, Domestic Relations Law § 236 [B] [6]) and in view of the fact that upon the sale of the marital residence the net proceeds will be equally divided between the parties, we conclude that the trial court's award of $125 per week maintenance was appropriate and should not be disturbed (see, Donnelly v Donnelly, 144 A.D.2d 797, 798, appeal dismissed 73 N.Y.2d 992; see also, Domestic Relations Law § 236 [B] [6] [a]). Nor can it be said that the trial court abused its discretion in awarding plaintiff counsel fees in the amount of $2,000 (see, DeCabrera v Cabrera-Rosete, 70 N.Y.2d 879, 881).
We modify the Domestic Relations Order by deleting the sixth decretal paragraph, which orders the payment of plaintiff's 50% interest in the marital portion of defendant's pension fund to plaintiff's beneficiaries should she die prior to the date of distribution of the fund. The record contains no proof that survivor pension benefits are available under defendant's pension plan. Plaintiff, as the party seeking a portion of defendant's pension interest, had the burden "of establishing the value of said interest, usually by actuarial evidence, as well as the evidence of the plan itself, establishing the pensioner's rights" (Michalek v Michalek, 114 A.D.2d 655, 657, lv denied 69 N.Y.2d 602; see also, Cleary v Cleary, 171 A.D.2d 1076 [decided herewith]; Culnan v Culnan, 142 A.D.2d 805, 806, lv dismissed 73 N.Y.2d 994). In the absence of any proof establishing the existence and availability of such pension survivor benefits, Supreme Court's decision to award plaintiff those benefits lacked evidentiary support (see, Culnan v Culnan, supra, at 806).