CHERRY v. CHERRY (2006)

 On appeal from a judgment of divorce that, inter alia, distributed certain marital property, defendant contends that Supreme Court erred in directing him to select a certain retirement benefit and that he did not agree to a retirement benefit that would provide for payments to plaintiff in the event that he predeceased her.   Those contentions are not reviewable by this Court because defendant failed to include in the record on appeal the order that allegedly directed him to select that benefit, the motion papers seeking that relief, or any evidence concerning the parties' alleged agreement.   Defendant, “as the appellant, submitted this appeal on an incomplete record and must suffer the consequences” (Matter of Santoshia L., 202 A.D.2d 1027, 1028, 609 N.Y.S.2d 724;  see Polyfusion Elecs., Inc. v. AirSep Corp., 30 A.D.3d 984, 816 N.Y.S.2d 783;  Brown v. Barron [Appeal No. 3], 23 A.D.3d 1125, 803 N.Y.S.2d 489).

 We reject the further contention of defendant that the court erred in refusing to award him a share of plaintiff's pension.   Although it is well settled that pension benefits earned during a marriage are marital assets subject to equitable distribution (see Olivo v. Olivo, 82 N.Y.2d 202, 207, 604 N.Y.S.2d 23, 624 N.E.2d 151;  Majauskas v. Majauskas, 61 N.Y.2d 481, 491-492, 474 N.Y.S.2d 699, 463 N.E.2d 15), it is equally well settled that the distribution of those assets is “subject to equitable considerations [, i.e.,] ․ considerations of fairness and the respective situations of the parties” (Butler v. Butler, 256 A.D.2d 1041, 1045, 683 N.Y.S.2d 603, lv. denied 93 N.Y.2d 805, 689 N.Y.S.2d 429, 711 N.E.2d 643).   The record establishes that plaintiff is entitled to a minimal pension based upon her part-time employment as a school secretary, and the court awarded plaintiff the full value of that pension as part of its overall distribution of marital property, after full consideration of the parties' respective financial situations.   We thus perceive no reason to disturb the court's determination (see Gasiorowski v. Gasiorowski, 267 A.D.2d 557, 557-558, 699 N.Y.S.2d 206, lv. denied 94 N.Y.2d 762, 707 N.Y.S.2d 622, 729 N.E.2d 341).

We have considered defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that said appeal insofar as it concerns retirement benefits be and the same hereby is unanimously dismissed and the judgment is affirmed without costs.

MEMORANDUM: