LAMBA v. LAMBA (1999)

In an action for a divorce and ancillary relief, the defendant former husband appeals from so much of an order and judgment (one paper) of the Supreme Court, Nassau County (Dunne, J.), entered August 7, 1998, as awarded the plaintiff former wife 50% of his pension, directed that the pension be valued as of July 6, 1994, and failed to equitably distribute the value of the plaintiff's degree in computer science.

ORDERED that the order and judgment is modified by deleting so much of the fifth and sixth decretal paragraphs thereof as directed that the defendant's pension be valued for purposes of equitable distribution as of July 6, 1994;  as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a hearing to determine the valuation date of the defendant's pension in accordance herewith.

The Supreme Court erred in granting the plaintiff's motion to have the defendant's pension valued as of July 6, 1994, the date the instant action was commenced, as opposed to the date that a previous, discontinued, divorce action between the parties was commenced in or about May 1989, since her moving papers contained no evidence that the parties reconciled and continued to receive the benefits of the marital relationship.   The court compounded that error when it subsequently denied the plaintiff the opportunity to present such evidence at trial.   Inasmuch as the plaintiff was required to make such a showing before the court could grant her motion (see, Gonzalez v. Gonzalez, 240 A.D.2d 630, 659 N.Y.S.2d 499;  Thomas v. Thomas, 221 A.D.2d 621, 634 N.Y.S.2d 496;  Marcus v. Marcus, 137 A.D.2d 131, 525 N.Y.S.2d 238), we remit the matter to the Supreme Court, Nassau County, for a hearing to determine whether after the commencement of the plaintiff's prior 1989 action for divorce, the parties reconciled and received the benefits of the marital relationship.

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.