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| Chayes v Chayes |
| 2005 NY Slip Op 50322(U) |
| Decided on January 13, 2005 |
| Supreme Court, New York County |
| Visitacion-Lewis, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Supreme Court, New York County
Zev Chayes, Plaintiff,
against
Ellen Chayes, Defendant.
|
108037/02
Laura Visitacion-Lewis, J.
Motion sequence numbers 003 and 004 are consolidated for disposition.
Plaintiff former husband moves to confirm the Report of Special Referee Steven Liebman, dated September 27, 2004, which, upon findings made after a hearing, recommended the signing of plaintiff's proposed Court Order Acceptable for Processing ("COAP") to effectuate equitable distribution of plaintiff's federal pension benefits pursuant to the parties' divorce settlement agreement (motion sequence number 003).
Defendant former wife moves to disaffirm the Referee's report, and for summary judgment dismissing plaintiff's action as barred by the statute of limitations (motion sequence number 004).[FN1]
Upon review of the parties' submissions, the stenographic minutes made available by the parties in connection with their motions, and the report of Special Referee Steven Liebman, I find that the Special Referee's report should be confirmed except as discussed hereinbelow. Those recommendations not adopted by the court pertain to: (a) the provision of the proposed COAP limiting the defendant's share of the survivor annuity; and (b) the provision of the proposed COAP relating to the computation of defendant's share of the retirement annuity.
PROCEDURAL HISTORY
The parties were married on April 25, 1981, and an action for divorce was commenced on July 12, 1989. By settlement agreement ("Agreement"), dated September 27, 1994, the parties resolved, inter alia, the issue of equitable distribution of plaintiff's pension from the United States [*2]Department of Veterans Affairs. The terms of the Agreement pertaining to the pension were negotiated with the assistance of a pension expert, and the Agreement was executed after exchanges of drafts between counsel for the parties.
On April 22, 2002, plaintiff filed a summons and complaint alleging that defendant had breached the Agreement by failing to file a COAP with the US Office of Personnel Management (OPM) in accordance with the terms of the Agreement, and requested equitable relief and counsel fees. Defendant filed a verified answer. Plaintiff subsequently moved by order to show cause filed in September 2002, for the court to sign his proposed Court Order Acceptable for Processing ("COAP") to be filed with OPM. In response, defendant cross-moved for summary judgment dismissing the action as barred by the statute of limitations and, further, argued that her filing of the Agreement and the Judgment of Divorce with OPM in 1994, and OPM's acceptance of said documents as a "COAP," met the terms of the Agreement.
By decision and order dated, January 3, 2003, the court denied defendant's cross-motion for summary judgment, finding that there existed material issues of fact, and referred the matter to a Special Referee to "hear and report on the terms of a COAP that will assign to defendant her pro rata share of benefits pursuant to the terms of the agreement and the parties' intention thereunder."
The matter was heard by Special Referee Steven Liebman over six separate dates. (see, Referee Report, p. 2.) On September 27, 2004, the Special Referee issued a report and recommendations which found, in pertinent part, that July 12, 1989, the date of commencement of the divorce action, was the cut-off date for the marital portion of plaintiff's pension and employee benefits, and recommended the signing of plaintiff's proposed COAP.
Plaintiff now moves to confirm the Referee's Report. Defendant moves to disaffirm, and for post-hearing "summary judgment."
DISCUSSION
As a general rule, the court will not disturb the findings of a Special Referee, whose report should be confirmed, so long as the findings are supported by the record, the issues are clearly defined, and matters of credibility have been resolved. (Kaplan v Einy, 209 AD2d 248 [1st Dept. 1994]; Freedman v Freedman, 211 AD2d 580 [1st Dept. 1995]; The Board of Managers of the Boro Park Village-Phase I v. Boro Park, 284 AD2d 237 [1st Dept. 2001].)
While a Referee's recommendations are entitled to great weight in light of his opportunity to hear and observe the witnesses as a trier of fact, Frater v Lavine, 229 AD2d 564 (2d Dept. 1996), the motion court may reject in whole or in part any findings made by the Special Referee, and make new determinations, based upon an independent review of the record, and without the taking of additional testimony. (CPLR 4403; see, Jacynicz v 73 Seaman Assocs., 270 AD2d 83 [1st Dept. 2000]; Barrett v Stone, 236 AD2d 323 [1st Dept. 1997].)
A. Statute of Limitations
Defendant claims that plaintiff's instant action is time barred, because the applicable six-year statute of limitations had expired on all three possible dates when plaintiff's cause of action could have accrued the date of the Agreement (September 27, 1994), the date of OPM' notice letter to plaintiff (January 10, 1995), informing him that a COAP had been filed with and accepted by OPM, and the date upon which the parties' negotiations ended.
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Plaintiff counters that the statute of limitations did not begin to run, either under the Agreement, which called for future performance without specifying a time for such performance or the OPM letter date, beyond which the parties continued negotiations in an attempt to reach a mutually agreeable COAP to replace the Agreement filed by defendant. In this regard, plaintiff asserts that defendant misled him into believing that her filing of the Agreement and Judgment of Divorce with the OPM was a "temporary measure," pending their continued negotiations and resolution.
At the hearing, both parties testified and presented evidence in support of their respective, and conflicting, positions regarding their intentions and actions following the execution of the Agreement and defendant's filing of the documents accepted by OPM as their COAP. The findings of the Special Referee, based upon his assessment of the parties' credibility, as well as the weight to be given to the testimony of defendant's pension expert and the exhibits introduced by both sides, are supported by the record, and will not be disturbed. (Kaplan v Einy, supra.) Specifically, the Special Referee found plaintiff's assertions to be more credible, and went on to determine the issues on their merits, as is favored, particularly in matrimonial cases. (See, Brettschneider v Brettschneider, 52 AD2d 548 [1st Dept. 1976].)
B. Marriage Termination Date
Issues of credibility also attend the question of what the parties intended as the cut-off date of the marital portion of plaintiff's benefits. The Special Referee found that plaintiff's testimony was more credible in this regard, and that the uncontroverted November 17, 1994 letter of William M. Troyan, the parties' then pension expert, to defendant's then counsel, was the most persuasive proof that the marriage was deemed ended on July 12, 1989 for the purposes of the COAP. Significantly, the Special Referee declined to credit defendant's contention, that the parties' intention to utilize the date of the Judgment of Divorce (December 6, 1994) for purposes of fixing defendant's rights to the pension and the COAP, was established by their failure to opt-out of the federal regulations.
Given the Special Referee's assessment of credibility in this regard, as well as the extrinsic evidence corroborating plaintiff's testimony, this court will not disturb the Special Referee's finding that the marriage termination date for purposes of the parties' pension and employee benefits is July 12, 1989.
C. Survivor Annuity
Upon review of the relevant sections of the Agreement, and the undisputed circumstances surrounding the drafting of the unambiguous language contained therein, I disaffirm the Special Referee's Report insofar as it recommends the adoption of the provision of the proposed COAP which seeks to limit defendant's right to survivor annuity benefits. Instead, I adopt defendant's position that an assignment of the "Maximum Survivor Annuity," which consists of a flat 55% award under the Code of Federal Regulations, reflects the parties' intention as expressed in their Agreement.
The portion of the Agreement that governs this matter is found at section 8(c)(i) and reads in pertinent part, as follows:
(C) The husband agrees that he shall designate the wife as the beneficiary of the Former Wife Survivor Annuity under the Civil Service Retirement System to the maximum extent and shall [*4]execute any documents reasonably required to maintain such benefit. The full cost associated with the maximum extent Former Spouse Survivor Annuity shall be deducted solely from the wife's share of the husband's pension benefits.
This plain language clearly expresses the parties' agreement that defendant would receive survivor annuity benefits "to the maximum extent, " permitted under the applicable laws. The "maximum extent" of survivor annuity that defendant may obtain is the flat 55% "Maximum Survivor Annuity," under the Code of Federal Regulations.
In this context, it is noted that at the time of the settlement negotiations and exchanges of draft agreements, both parties were represented by counsel and assisted by a federal pension expert, Mr. William M. Troyan. It was Mr. Troyan's specific task to draft a COAP, and their retainer of such an expert demonstrates an awareness that the pension benefits would be subject to federal regulations. In Mr. Troyan's November 17, 1994 letter to defendant's then attorney, the expert indicated that he is sending a draft COAP that "endeavors to comply with the Federal Regulations." (Defendant's Exhibit 19.) The expert also advised in the same letter, that "[t]he Regulations give very specific meaning to certain words." (Defendant's Exhibit 19.)
For these reasons, I find that the parties' use of the term "maximum extent" in establishing defendant's survivor annuity was intended to provide her with the "Maximum Survivor Annuity" as defined under the Code of Federal Regulations.
Defendant's motion to disaffirm also challenges a provision of the proposed COAP which provides, that "OPM is instructed not to apply any salary adjustments occurring after July 12, 1989, in computing the former spouse's share of the employee annuity." Plaintiff interposes no response on this issue.
Under both New York and Federal laws, a former spouse's pro rata share of the employee spouse's annuity is applied to the total annuity at the time of the employee's retirement. The formula under which the pro rata share is computed, however, takes into account, earnings, as well as increases flowing from salary adjustments that are not subject to equitable distribution. (See, Majauskas v Majauskas, 61 NY2d 481 [1984]; Defendant's Exhibit 9, Transcript p. 55.) For these reasons, this provision of plaintiff's proposed COAP should be stricken.
The sole issue remaining relates to the plaintiff's right to take a refund of contributions. Plaintiff has withdrawn his claim in this regard. (Plaintiff's Affidavit in Reply, para. 14.)
Accordingly, the Report and Recommendations of the Special Referee are confirmed to the extent set forth herein, and otherwise disaffirmed.
This constitutes the decision of the court. Either side may settle an order on 10 days' notice within 30 days of the date of this decision.
Dated: January 13, 2005E N T E R:
LAURA VISITACION-LEWIS, J.S.C.
Footnotes
Footnote 1:Although denominated as an application for summary judgment, which relief was previously denied by this court's order dated January 3, 2003, defendant is actually seeking determination on the merits based upon her interpretation of the hearing evidence.