JT v GT

Supreme Court, Richmond County

Decided on February 10, 2026

Index No. Redacted

Ronald Castorina, Jr., J.

I. Statement Pursuant to CPLR 2219 [a]

The following e-filed documents listed on NYSCEF (Motion No. 004) numbered 53-63, 70-71 were read on this motion. Upon the reading and filing of the following papers in connection with Defendant's Order to Show Cause:

1. Order to Show Cause dated November 12, 2025, together with the Affidavit of GT and the Affirmation of Nicholas A. Pedersen, Esq., with exhibits annexed thereto;

2. Defendant's supporting papers;

3. Plaintiff's Affidavit in Opposition dated January 22, 2026;

4. Affirmation in Opposition of Alison Aplin, Esq.; and

5. All prior pleadings and proceedings had herein, the Court renders the following Decision and Order.

[*2]II. Procedural History and Findings of Fact

This matrimonial action was commenced in 2003. (NY St Cts Filing [NYSCEF] Doc No. 4). The parties were divorced pursuant to a Judgment of Divorce dated January 31, 2008, and entered on February 1, 2008. (NY St Cts Filing [NYSCEF] Doc No. 56). Prior to the entry of judgment, the parties placed an oral stipulation upon the record on April 3, 2006. (NY St Cts Filing [NYSCEF] Doc No. 57). That stipulation was thereafter incorporated, but not merged, into the Judgment of Divorce. Pursuant to its terms, the parties agreed that all retirement benefits accumulated during the marriage up to and including the date of the summons would be subject to equitable distribution pursuant to the Majauskas formula and would be effectuated by Qualified Domestic Relations Orders (QDROs). (see id at page 5-6). The stipulation further provided that Defendant would receive her marital share of such benefits and that the parties would equally share the costs associated with the preparation of the QDROs. (see id at page 6).

Despite the clear directive contained in the parties' agreement and judgment, no QDROs were prepared or submitted for approval in the years immediately following the divorce. Defendant, GT, now seeks enforcement of the distributive provisions of the Judgment of Divorce by Order to Show Cause. Defendant avers that Plaintiff has retirement accounts and a defined benefit plan administered by Redacted and that Plaintiff retired in late 2023 or early 2024 and has commenced receiving retirement benefits.

Defendant asserts that, notwithstanding Plaintiff's receipt of such benefits, she has received no portion of her marital share. She further avers that she has been found totally disabled, receives Social Security disability benefits, has not been employed, and depends upon maintenance and disability income for her support.

Defendant's counsel represents that repeated requests were made in August and September 2025 for documentation necessary to prepare QDROs. In response, Plaintiff produced only a Morgan Stanley statement dated July 26, 2004. No current statements or plan information have been provided.

Defendant seeks, inter alia: Production of all retirement-related documentation; Cooperation in the preparation of QDROs; Authorization to issue subpoenas; Retroactive payment of her marital share of Plaintiff's defined benefit plan; Allocation of passive gains and losses on the marital portion of Plaintiff's 401(k) and ESOP; and an award of counsel fees.

Plaintiff opposes the application, asserting that Defendant delayed in pursuing enforcement, that gains should not be awarded, that post-commencement contributions must be excluded, that the preparation of QDROs would require extensive tracing, and that Defendant should not be awarded counsel fees.

Plaintiff further contends that Defendant's application seeks an inequitable windfall and that he should not be responsible for Defendant's counsel fees.

III. Conclusions of Law

A. Statute of Limitations and Authority to Issue QDROs

An action to enforce a distributive award is generally governed by a six-year statute of limitations (CPLR § 213 [1], [2]). However, it is well settled that an application for the issuance of a QDRO is not barred by the statute of limitations where it seeks to formalize and effectuate a previously adjudicated right.

In Bayen v Bayen (81 AD3d 865 [2d Dept 2011]), the Appellate Division held that a [*3]motion to issue a QDRO is not time-barred where it derives from the parties' prior agreement. Similarly, in Denaro v Denaro (84 AD3d 1148 [2d Dept 2011]), the Court held that no separate plenary action is required to enforce such an agreement. The same principle was reaffirmed in Kraus v Kraus (131 AD3d 94 [2d Dept 2015]).

Here, the parties' stipulation clearly established Defendant's entitlement to her marital share of Plaintiff's retirement benefits. That stipulation was incorporated into the Judgment of Divorce. The present application seeks only to implement and enforce that judgment. Accordingly, Defendant's motion is not barred by the statute of limitations.

B. Production of Documentation and Cooperation

A party seeking to enforce equitable distribution of retirement assets must be afforded access to accurate and current financial information. Without such documentation, neither QDRO preparers nor the Court can calculate distributive shares or arrears. The record establishes that Defendant has repeatedly requested updated statements and plan information. Plaintiff has produced only a statement from 2004, which is insufficient for present purposes.

Moreover, the transcript reflects that the Court anticipated the need for authorizations and documentation in order to prepare QDROs. Plaintiff does not deny his ability to obtain such documentation. His objection rests primarily upon inconvenience and delay.

Such arguments are unavailing. A party may not frustrate enforcement of a judgment by withholding essential financial information. Accordingly, Plaintiff must be compelled to produce all relevant documentation and cooperate in the preparation of QDROs.

C. Retroactive Payment of Defined Benefit Plan

Defendant seeks retroactive payment of her marital share of Plaintiff's defined benefit plan from the date Plaintiff commenced receiving benefits. In Fernandez v Fernandez (223 AD3d 1064 [3d Dept 2024]), the Appellate Division held that where a party is entitled to a Majauskas share of pension benefits, and the payor spouse receives payments prior to entry of a domestic relations order, the non-payor spouse is entitled to her share of those payments. Similarly, in Pasquale v Pasquale (232 AD3d 905 [2d Dept 2024]), the Court upheld an award of pension arrears notwithstanding delay in enforcement.

These decisions rest upon the principle that once a right to pension distribution is established, the payor spouse holds the other spouse's portion in constructive trust. Here, the parties' agreement unequivocally bound Plaintiff to share his pension benefits. Plaintiff does not dispute this obligation. Delay in enforcement does not extinguish a vested distributive right.

Accordingly, Defendant is entitled to her marital share of Plaintiff's defined benefit plan retroactive to the date of first payment, with arrears to be determined upon receipt of complete documentation.

D. Passive Gains and Losses on 401(k) and ESOP

Defendant seeks allocation of passive appreciation and losses attributable to her marital share of Plaintiff's 401(k) and ESOP accounts. Domestic Relations Law § 236 [B] [1] [c] defines marital property broadly. The Court of Appeals has emphasized that the statute reflects the [*4]"economic partnership" of marriage (Price v Price, 69 NY2d 8 [1986], citing Majauskas v Majauskas, 61 NY2d 481 [1984]).

New York courts have consistently held that post-commencement passive appreciation and interest on marital assets remain marital property. (see Lueker v Lueker 72 AD3d 655 [2d Dept 2010]; Gagstetter v Gagstetter, 283 AD2d 393 [2d Dept 2001]); Vicinanzo v Vicinanzo 193 AD2d 962 [3d Dept 1993]; Glass v Glass 177 AD2d 807 [3d Dept 1991]; Glasberg v Glasberg 162 AD2d 586 [2d Dept 1990]); Brennan v Brennan 103 AD2d 48 [3d Dept 1984]).

In Brennan, the Court held that "automatic accretions to marital property stemming solely from the incidents of ownership retain the character of their source" (see id). The parties' agreement did not exclude passive appreciation. Plaintiff's argument that gains were not expressly provided for is unpersuasive. In the absence of an express waiver, passive appreciation follows the marital portion.

Defendant does not seek a share of post-commencement contributions, which remain Plaintiff's separate property. She seeks only gains and losses attributable to the marital portion. Accordingly, Defendant is entitled to passive gains and losses attributable to her marital share.

E. Allocation of QDRO Preparation Fees

The transcript of the April 3, 2006 proceedings reflects that the parties agreed to equally share the cost of preparing QDROs. This provision was incorporated into the Judgment of Divorce. Such cost-allocation provisions are enforceable as part of equitable distribution. Accordingly, the fees and expenses of any mutually agreed-upon QDRO preparer, including Redacted Pension or any comparable provider, shall be borne equally by the parties.

F. Counsel Fees

Domestic Relations Law § 238 authorizes the Court, in its discretion, to award counsel fees in enforcement proceedings and establishes a rebuttable presumption in favor of the less-monied spouse. The record reflects that Defendant has been found totally disabled, receives Social Security disability benefits, has not worked, and relies upon limited income. These facts are corroborated by prior court findings and remain undisputed.

Defendant's counsel represents that the retainer was funded through family assistance and constitutes a loan. Counsel has expended substantial time reviewing historical records and preparing this enforcement proceeding. Plaintiff has not rebutted the presumption in favor of an award. Moreover, this proceeding was necessitated by the prolonged failure to implement the parties' agreement. Accordingly, an award of counsel fees in the amount of $5,000 is warranted.

IV. Conclusion and Decretal Paragraphs

The Judgment of Divorce and the parties' on-the-record stipulation established Defendant's entitlement to her marital share of Plaintiff's retirement benefits. Equity and settled law require that those rights be enforced. The passage of time does not nullify binding agreements nor permit one party to retain marital assets to the exclusion of the other. Defendant has demonstrated entitlement to the relief sought.

Accordingly, it is hereby

ORDERED , that Defendant's Order to Show Cause is GRANTED to the extent set forth herein; and it is further

ORDERED , that Plaintiff shall, within thirty (30) days of service of this Decision and Order with notice of entry, produce to Defendant and her counsel all statements, plan documents, summaries, beneficiary designations, loan records, and authorizations relating to his Redacted 401(k), ESOP, and defined benefit plan from January 2024 to the present; and it is further

ORDERED , that Plaintiff shall fully cooperate in the retention of a mutually agreed-upon QDRO preparer and shall execute all documents necessary to effectuate the preparation and submission of QDROs; and it is further

ORDERED , that the costs, fees, and expenses associated with the preparation, drafting, review, and submission of all Qualified Domestic Relations Orders shall be borne equally by the parties, and each party shall remit his or her respective fifty percent (50%) share directly to the QDRO preparer upon demand; and it is further

ORDERED , that Defendant is entitled to her marital share of Plaintiff's defined benefit plan retroactive to the date Plaintiff commenced receiving benefits, with arrears to be determined upon receipt of complete documentation and/or through the QDRO process; and it is further

ORDERED , that Defendant is entitled to the passive gains and losses attributable to her marital share of Plaintiff's 401(k) and ESOP accounts; and it is further

ORDERED , that Plaintiff shall pay Defendant counsel fees in the amount of $5,000 within sixty (60) days of service of this Decision and Order with notice of entry; and it is further

ORDERED , that Defendant may submit appropriate subpoenas for signature if necessary to obtain outstanding records; and it is further

ORDERED , that any remaining issues relating to calculation, implementation, or enforcement shall be addressed upon further application to this Court.

This constitutes the Decision and Order of the Court.

Dated: February 10, 2026

Staten Island, New York

HON. RONALD CASTORINA, JR.

JUSTICE OF THE SUPREME COURT