Gomez v. Gomez

150 A.D.2d 427, 541 N.Y.S.2d 38, 1989 N.Y. App. Div. LEXIS 6483

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 1989
• Status: Published

Opinion

In a matrimonial action in which the parties were previously divorced, the plaintiff appeals from an order of the Supreme Court, Nassau County (Widlitz, J.), entered October 20, 1987, which denied her motion for upward modification of her distributive share of the defendant’s net pension benefits.

Ordered that the order is reversed, on the law and the facts, with costs, the plaintiff’s motion is granted, and the matter is remitted to the Supreme Court, Nassau County, for a hearing to determine the amount of arrears due and owing to the plaintiff, representing the balance of her one-half share of the defendant’s net monthly pension payment from the New York State Policemen’s and Firemen’s Retirement System.

Under the express terms of the parties’ judgment of divorce the plaintiff was awarded, as a distributive award, a 50% share of the defendant’s net monthly pension payments beginning January 1, 1982. The judgment did not limit the plaintiff's 50% share to the defendant’s net monthly pension payment as of the date of the judgment of divorce, nor did it include a specific monetary amount. The plaintiff has established that although the defendant’s net monthly pension benefits since January 1, 1982 have gradually increased over the years, the amount she has been paid as her share of the defendant’s monthly pension has remained constant since January 1, 1982. In view of this evidence, we conclude that the plaintiff is entitled to recover the. amount of arrears representing the balance of her one-half share of the defendant’s net monthly pension benefits since January 1, 1982. Mollen, P. J., Kunzeman, Spatt and Rosenblatt, JJ., concur.