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Menake v. Menake

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 6, 2002

This is an appeal arising from a post-matrimonial dispute over defendant’s entitlement to a portion of plaintiff’s defined-benefit pension that he has with the New York State and Local Retirement System as a result of his employment with the Port Authority of New York and New Jersey. It is a dispute that has spanned eight years with four different judges and numerous court applications and orders, two different Qualified Domestic Relations Orders (QDRO) and several recalculations by the New York State and Local Retirement System. It is the formula for the calculation of defendant’s share of plaintiff’s pension in the second of the two QDROs that prompts this appeal. By order entered April 1, 1996, defendant’s share was to be determined by a formula which consisted of the “[n]umber of months of marriage of the parties while in the retirement systems divided by total number of months in retirement systems multiplied by 50%. . . . ” In contrast, a March 27, 2000, order directed that defendant’s share be determined by a formula which consisted of “ 50% of the hypothetical retirement allowance, computed using final average salary as of May 14, 1990, and the service credit accrued between July 9, 1973, and May 14, 1990.” The latter dates reflect the duration of the parties’ marriage to the date of the filing of the divorce complaint. The differences in these two formulas is significant. Indeed, because the Retirement System had made a number of payments to defendant under the first order, the effect of the March 27, 2000, order was a recalculation, which resulted in a $93,809.92 overpayment. In order to repay this amount, defendant will receive no pension benefits until July 30, 2012. We reverse and remand for further proceedings.

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