WILLETTE v. WILLETTE (2008)

Appeal from an order of the Supreme Court (Nolan Jr., J.), entered May 3, 2007 in Saratoga County, which denied plaintiff's motion to enforce the terms of the parties' separation agreement.

In October 1998, while the parties were married, defendant withdrew $19,583.61 from his 401k deferred compensation plan established with his then employer, Grand Union.   Approximately six months later, the parties entered into a separation agreement which was incorporated, but not merged, into a subsequent judgment of divorce.   As relevant here, the separation agreement provides that plaintiff is entitled to her Majauskus share of “all of the Grand Union Retirement and Pension Benefits that [defendant] has accrued.”

In 2006, after defendant began receiving his monthly pension payment, plaintiff first learned of defendant's October 1998 withdrawal.   Plaintiff then moved, by order to show cause, for “a monetary judgment in a principal amount equal to one-half of the October 1, 1998 lump sum withdrawal [d]efendant unilaterally took from his Grand Union 401-k Retirement Savings Plan, which was Marital Property and which withdrawal was concealed by said [d]efendant” (emphasis added).   Supreme Court denied the motion, finding that, inasmuch as the withdrawn funds constituted marital property and were used to pay a marital debt, of which plaintiff received the benefit, she was not entitled to any portion of the withdrawn funds.   Noting that plaintiff's application for relief was limited to her interest in the withdrawn funds, rather than the entire 401k plan, the court did not reach the issue of whether defendant's 401k constituted a “Grand Union Retirement and Pension Benefit [ ]” under the terms of the separation agreement.   Plaintiff now appeals.

We affirm.   In his affidavit in opposition to plaintiff's motion, defendant averred that he did, in fact, withdraw the funds from his 401k plan and provided supporting documentation that he used such funds to pay a portion of the home equity loan taken on the marital residence during the marriage.   Notably, plaintiff does not dispute this payment or its source.   Inasmuch as defendant used marital funds to offset the home equity line of credit on the marital residence, which plaintiff received pursuant to the separation agreement, plaintiff is not entitled to receive one half of the October 1998 withdrawal because this would cause her to receive the benefit of these funds a second time (see Lewis v. Lewis, 6 A.D.3d 837, 839, 775 N.Y.S.2d 387 [2004];  Elmore v. Elmore, 208 A.D.2d 1134, 1135, 617 N.Y.S.2d 966 [1994];  Richards v. Richards, 207 A.D.2d 628, 631, 615 N.Y.S.2d 784 [1994];  see generally Jonas v. Jonas, 241 A.D.2d 839, 840, 660 N.Y.S.2d 487 [1997] ).

Plaintiff also argues that Supreme Court abused its discretion in failing to consider the issue of whether she is entitled, under the terms of the separation agreement, to a share of all funds within defendant's 401k plan.   As plaintiff concedes, however, the specific relief sought in the order to show cause and her supporting affidavit was limited to the propriety of defendant's October 1998 withdrawal.   As the record before us reveals that the relief plaintiff now seeks was not requested in the order to show cause (see CPLR 2214[a], [d] ) and was improperly raised for the first time in her reply affidavit (see N.A.S. Partnership v. Kligerman, 271 A.D.2d 922, 923, 706 N.Y.S.2d 753 [2000];  Potter v. Blue Shield of Northeastern N.Y., 216 A.D.2d 773, 775, 629 N.Y.S.2d 93 [1995] ), we cannot conclude that the court abused its discretion in declining to consider it.   Further, although the order to show cause contained a general prayer for “such other and further relief” as the court deems just and proper, whether to grant such relief is discretionary (see Van Slyke v. Hyatt, 46 N.Y. 259, 264 [1871];  HCE Assoc. v. 3000 Watermill Lane Realty Corp., 173 A.D.2d 774, 774-775, 570 N.Y.S.2d 642 [1991] ).   In light of, among other things, the sparsity of the record and plaintiff's failure to tender any proof to support her argument that defendant's 401k plan is a “Grand Union Retirement and Pension Benefit [ ]” within the meaning of the language in the separation agreement, we find no abuse of discretion (see Frankel v. Stavsky, 40 A.D.3d 918, 918-919, 838 N.Y.S.2d 90 [2007];  HCE Assoc. v. 3000 Watermill Lane Realty Corp., 173 A.D.2d at 774-775, 570 N.Y.S.2d 642;  see also Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C2214:5, at 84).

ORDERED that the order is affirmed, without costs.

PETERS, J.P.

SPAIN, CARPINELLO, LAHTINEN and MALONE JR., JJ., concur.