A recent decision of the Appellate Division, Second Department, Howe v. Howe, 2009 N.Y. Slip Op. 06804 (2nd Dept. 2009), addressed some of the issues dealing with equitable distribution of personal injury compensation. Mr. Howe was a New York City firefighter who was injured as a result of the events of 9/11 and subsequently retired on a disability pension. As a result of his injuries, he also received September 11th Victim Compensation Award.
The trial court found the entire pension to be a part of the marital estate and awarded the wife “her Majauskas” share. On appeal, the husband argued that the lack of expert testimony or evidence in the record by which the non-disability portion of the pension can be distinguished from the disability portion is not fatal to his separate property claim, since that distinction can be made by the pension administrator in the same manner as it makes the familiar calculation of the marital pension share under Majauskas.
The manner in which disability pensions are treated for equitable distribution purposes is well established. “[P]ension benefits or vested rights to those benefits, except to the extent that they are earned or acquired before marriage or after [the] commencement of a matrimonial action, constitute marital property”. Dolan v. Dolan, 78 NY2d 463, 466 (1991). However, “[t]o the extent that a disability pension constitutes compensation for personal injuries, that compensation is separate property’ which is not subject to equitable distribution”. Mylett v. Mylett, 163 A.D.2d 463, 464-465 (3rd Dept. 1990). According to the Second Department, the division, into two separate post-marital accounts, of what was the non-disability pension of one spouse during the marriage, is accomplished by the plan administrator, without the intervention of the court, pursuant to a qualified domestic relations order, consistent with Majauskas, which the administrator either prepares or, more frequently, approves. For that order to satisfy the relevant requirement of the Internal Revenue Code, it need only specify “the amount or percentage of the participant’s benefits to be paid by the plan to each such alternate payee, or the manner in which such amount or percentage is to be determined” (26 U.S.C. § 414[p][2][B] [emphasis supplied]).
In addition to his disability pension, the plaintiff received an award from the September 11th Victim Compensation Fund as a result of the injuries he suffered. The administrator of that fund specifically designated a portion of that award, in the amount of $127,571, as compensation for economic loss. The Supreme Court held that the economic component of the award constitutes “compensation for personal injuries” within the meaning of Domestic Relations Law § 236(B)(1)(d)(2) and, on that basis, treated the award as the separate property of the plaintiff.
According to the Second Department, the phrase “compensation for personal injuries,” however, is not without ambiguity. It can be read equally clearly as encompassing the entire award in a personal injury action or as limiting the marital share of that award to the portion constituting compensation for the actual injuries, i.e., the pain and suffering component. While a definition of the term separate property as “any recovery in a personal injury action” would be clear, that is not the phrase the Legislature used, and view the phrase “compensation for personal injuries” as including the economic component of a personal injury award and, therefore, the separate property of the injured spouse is, according to the court, was clearly inconsistent with the logic of the Equitable Distribution Law. While the logic of the Equitable Distribution Law thus suggests the conclusion that the economic portion of a personal injury award should be marital property, however, according to the Second Department, the legislative history compels the contrary result.
This particular finding that the compensation for economic loss is the separate property of the party is very significant. It is also likely to create a new set of issues that lawyers in the Fourth, Third, and First Appellate Divisions will have to address since the existing precedent in those departments runs contrary to this decision. Because of the apparent conflict between the departments, this issue is also likely to be appealed to the Court of Appeals.