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Supreme Court, Westchester County, New York.

Rosa LONG, Formerly Known as Rosa Paige, Plaintiff, v. Steaven PAIGE, Defendant.

Decided: October 25, 1999

Ebonette Bates, Mount Vernon, for plaintiff. Antonio Mareno, Yorktown Heights, for defendant.

Plaintiff moves for post judgment relief in the nature of the execution of a Qualified Domestic Relations Order (“QDRO”).   The parties were divorced by judgment dated July 25, 1986.   The judgment provided that the parties waived maintenance and that a QDRO would be prepared with respect to defendant's pension.   Subsequently, plaintiff has twice remarried.   Additionally, in 1995, about two weeks prior to defendant's retirement, plaintiff learned that no QDRO had been submitted to the Court for filing with the pension authorities.   Other than prior counsel's apparent lack of attention, there is no explanation for the nine year delay nor does the record provide an explanation for the subsequent four and one-half year delay in making this application.

Plaintiff seeks entry of a QDRO under the terms of the parties' agreement as set forth in the judgment.   The proposed QDRO is in the usual format but also contains a provision recouping amounts that should have been paid from the date of defendant's retirement (April 29, 1995) at ten percent monthly.

 Defendant points to plaintiff's remarriage and requests modification of the judgment with respect to the QDRO under section 248 of the Domestic Relations Law. That section mandates modification of judgments “directing payments of money for the support of the wife” on the recipient spouse's remarriage.   See Carroll v. Carroll, N.Y.L.J. 12/18/95, p. 35, col.   1 (Supreme Ct. Westchester Co.), aff'd, 236 A.D.2d 353, 653 N.Y.S.2d 643 (2d Dep't 1997).

Section 248 of the Domestic Relations Law applies only to spousal maintenance awards.  Jones v. Jones, 84 A.D.2d 893, 444 N.Y.S.2d 773 (3rd Dep't 1981) (exclusive possession of marital premises to ex-wife and children was in the nature of child support and not maintenance).   Astute commentators and learned treatises observe that section 248 should not apply to distributive property awards which are not considered maintenance.   Scheinkman, Practice Commentaries to Domestic Relations Law C248:1, McKinney's Consol.  Laws of New York, Book 14, at 664-665;  2 Foster, Freed, Brandes, Law & the Family New York (2d ed.), § 2:32, p. 229;  48A N.Y.Jur.2d, Domestic Relations, § 2617.

Clearly, the award of a portion of defendant's pension is in the nature of equitable distribution of marital property and not maintenance.  Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699, 463 N.E.2d 15 (1984).   Therefore, section 248 of the Domestic Relations Law does not apply herein and defendant's application is denied.

 There is no estoppel or undue laches to bar relief being awarded to plaintiff.   57 N.Y.Jur.2d, Estoppel, §§ 13, 15;  75 N.Y.Jur.2d, Limitations & Laches, §§ 333, 337.   Defendant does not claim any prejudice nor does he assert that the extra ten percent sought to recapture arrears is burdensome.   Consequently, the motion is granted and the QDRO is signed.


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