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Avallone v. Avallone

August 15, 1994

PHYLLIS J. AVALLONE, PLAINTIFF-RESPONDENT,
v.
HAROLD J. AVALLONE, DEFENDANT-APPELLANT.



Judges Michels, Skillman and Wefing.

The opinion of the court was delivered by: Wefing, J.S.C. (temporarily assigned)

Argued March 15, 1994

On appeal from the Superior Court, Chancery Division, Family Part, Somerset County.

Defendant-husband Harold J. Avallone appeals to this court from a post-judgment order of the Chancery Division, Family Part, which directed that the New York State and Local Police and Fire Retirement System ("Retirement System") deduct $956.38 per month from his disability pension and remit the same to the plaintiff Phyllis J. Avallone, his former spouse, pursuant to the provisions of an amended Qualified Domestic Relations Order ("QDRO").

The parties were married in 1967; they were divorced pursuant to a judgment of divorce entered on February 26, 1988. That judgment provided in part:

IT IS FURTHER ORDERED that a QDRO be entered with respect to each parties' pension. Each party shall share equally in that portion of the other party's benefits which were acquired and vested during the marriage, that is from November 12, 1967 through March 19, 1987, including all contributions to the plans by both the employee and employer[.]

At the time this judgment of divorce was entered, defendant was employed as a Port Authority police officer and was a vested participant in the Retirement System under which he would be entitled to retire after twenty years of service and receive a pension equal to one-half of his final average salary. However, since he had not completed twenty years of service by the time the parties were divorced, that right had not yet matured.

After the parties' divorce, defendant continued working for the Port Authority as a police officer. In April 1989, he was injured on the job and placed on light duty. More than a year later, in August 1990, which was more than two years after the parties were divorced, defendant sustained a second injury while on the job. For some ten months he received sick pay but when those benefits were exhausted, and he was still unable to return to work, he was retired as permanently disabled on June 22, 1991. At that point, he had accumulated 18.87 years of service credit and thus was not eligible to receive a full retirement pension. Although the Retirement System allowed participants with more than ten but less than twenty years of service to receive a retirement pension, this pension could not be activated until the participant had achieved at least fifty-five years of age. At the time defendant was retired for disability, he was forty-four years old.

Although defendant was precluded from receiving either type of retirement pension since he had neither completed twenty years of service nor attained the age of fifty-five, he did qualify for a disability pension. His initial monthly benefit was $1,750. Following a determination that his disability was the natural and proximate result of a work-related accident, defendant's monthly disability payment was set at $2,869.14. N.Y. Retire. & Soc. Sec. Law at 363 (McKinney 1994). This figure represents three-quarters of the salary defendant was receiving at the time of his termination and thus exceeds the amount he would have received as a retirement pension had he been entitled to receive such a pension as of that date. Defendant will receive this sum for so long as he is unable to work.

We are informed that the Retirement System has no provision or mechanism to convert defendant's disability pension into a retirement one, even though the payments he receives are substantially in excess of that which he would have received under ordinary retirement. He may potentially receive that higher sum for the remainder of his life.

We are further informed that the parties have both remarried. Defendant is thus no longer obligated to pay alimony although there is an outstanding issue as to whether he has satisfied his child support obligations. Since both parties have relocated to Florida, they have agreed to have all child support questions decided by a Florida court. We are also informed that although defendant has been declared disabled from working, plaintiff, who is forty-six, is earning nearly $30,000 a year as a teacher in Florida. Within their certifications to the trial court, the parties disputed whether she is accumulating a retirement pension in that position.

The language which was employed in the original judgment of divorce providing for the entry of a QDRO did not comply with the requirements of the Retirement System. This led to the entry of an Amended Qualified Domestic Relations Order on February 3, 1992 which provided in part:

ORDERED that at such time as Participant has retired from and is actually receiving a retirement allowance from the New York State and Local Police and Fire Retirement System Pension Plan, the said New York State and Local Police and Fire Retirement System Pension Plan, in accordance with the Equitable Distribution Law, and in accordance with the formula devised in the case of Majauskas v. Majauskas is directed to pay to Alternate Payee [i.e., plaintiff] from Participant's [i.e., defendant's] retirement 50% of a fraction of Participant's maximum monthly retirement allowance prior to any optional modification; and it is further

ORDERED, [that] the numerator shall be the number of months that the participant was in the plan during coverture (November 12, 1967 - March 19, 1987) and the denominator shall be the total number of months of service credit in the New York State and Local Police and ...


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