Newman v. Newman

Appellate Division of the Supreme Court of New York

Newman v. Newman

248 A.D.2d 990, 670 N.Y.S.2d 131, 1998 N.Y. App. Div. LEXIS 3055

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 13, 1998

StatusPublished

Cited by4 cases

This text of 248 A.D.2d 990 (Newman v. Newman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Newman v. Newman, 248 A.D.2d 990, 670 N.Y.S.2d 131, 1998 N.Y. App. Div. LEXIS 3055 (N.Y. Ct. App. 1998).

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Opinion

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in granting defendant’s motion for a share of plaintiffs disability benefits from the Department of Veteran’s Affairs (VA), and in directing that those benefits are subject to a Qualified Domestic Relations Order (QDRO) entered at the time of the parties’ divorce. Pursuant to the divorce decree, defendant is entitled to share in plaintiffs pension at retirement. The QDRO identifies that pension as plaintiffs United States Air Force pension. The VA disability benefits of plaintiff are separate and distinct from his Air Force pension and, although as a military retiree he may receive such benefits only to the extent that he waives a corresponding amount of his military retirement pay (38 USC § 5305), his VA disability benefits are not subject to equitable distribution (see, Mansell v Mansell, 490 US 581, 584, n 2; 10 USC § 1408). Furthermore, because VA disability benefits are based solely upon a “disability resulting from personal injury suffered or disease contracted in the line of duty” (38 USC § 1131) and do not represent deferred compensation (see, 38 USC §§ 1114, 1134), such benefits are separate property (see, Dolan v Dolan, 78 NY2d 463). (Appeal from Order of Supreme Court, Oneida County, Shaheen, J. — Equitable Distribution.)

Present — Lawton, J. P., Hayes, Wisner, Boehm and Fallon, JJ.

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—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in granting defendant’s motion for a share of plaintiffs disability benefits from the Department of Veteran’s Affairs (VA), and in directing that those benefits are subject to a Qualified Domestic Relations Order (QDRO) entered at the time of the parties’ divorce. Pursuant to the divorce decree, defendant is entitled to share in plaintiffs pension at retirement. The QDRO identifies that pension as plaintiffs United States Air Force pension. The VA disability benefits of plaintiff are separate and distinct from his Air Force pension and, although as a military retiree he may receive such benefits only to the extent that he waives a corresponding amount of his military retirement pay (38 USC § 5305), his VA disability benefits are not subject to equitable distribution (see, Mansell v Mansell, 490 US 581, 584, n 2; 10 USC § 1408). Furthermore, because VA disability benefits are based solely upon a “disability resulting from personal injury suffered or disease contracted in the line of duty” (38 USC § 1131) and do not represent deferred compensation (see, 38 USC §§ 1114, 1134), such benefits are separate property (see, Dolan v Dolan, 78 NY2d 463). (Appeal from Order of Supreme Court, Oneida County, Shaheen, J. — Equitable Distribution.)

Present — Lawton, J. P., Hayes, Wisner, Boehm and Fallon, JJ.

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Bluebook (online)

248 A.D.2d 990, 670 N.Y.S.2d 131, 1998 N.Y. App. Div. LEXIS 3055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newman-v-newman-nyappdiv-1998.

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