The following papers read on this motion: Order to Show Cause, Affidavit, Affirmation and Exhibits x DECISION AND ORDER XXX Upon the aforementioned papers, the Defendant moves, unopposed, by Order to Show Cause seeking an Order: (1) Pursuant to §§1015(a), 1021, and 3025(b) of the CPLR, substituting L.F., the duly appointed Executor of the Estate of V. F. and Defendant herein, in the place and stead of the Plaintiff herein, and amending the caption accordingly; (2) Vacating the Domestic Relations Order dated July 10, 2020, which is referable to the Defendant’s New York State Deferred Compensation (457) Plan, due to the death of the Plaintiff and based upon the additional facts and circumstances set forth in the supporting affidavits annexed hereto; and/or in the alternative; (3) For this Court to So-Order the Stipulation submitted herewith, which Stipulation amends the provision of the Stipulation of Settlement entered into by the parties to conclude this action for divorce, referable to the distribution which was made to the Plaintiff from the funds held in the Defendant’s New York State Deferred Compensation (457) Plan pursuant to the aforementioned Domestic Relations Order; and (4) Granting the Defendant such other, further, and different relief as to this Court may seem just and proper. BACKGROUND The parties were married on June 5, 1986. There are two emancipated children born of the marriage, both of whom are thirty-three years old. The Plaintiff commenced an action for divorce on May 10, 2015. All ancillary issues were resolved by a Stipulation of Settlement dated November 5, 2017 (the “Stipulation”). Pursuant to 7.10 thereof, the Defendant’s New York State Deferred Compensation (457) Plan (the “457 Plan”), which was worth approximately $338,800.00, would be divided between the parties pursuant to the Majauskas formula, such that the Plaintiff would receive 50 percent of the marital portion of benefits held and earned by the Defendant under said plan. Pursuant to 7.13, the Plaintiff’s attorney would retain the services of QDRO Advisors, Inc. to draft the orders necessary to effectuate distribution. 8.3 of the Stipulation further provides that “[t]he parties intend that the real and personal property division, as provided for in this Stipulation, shall be final and irrevocable.” The parties were divorced by a Judgment of Divorce dated November 21, 2018 (Zimmerman, J.). The Judgment incorporated but did not merge with the Stipulation. A Domestic Relations Order directing distribution of the 457 Plan pursuant to the Stipulation was signed by this Court on June 15, 2020 and entered in the Office of the Nassau County Clerk on July 17, 2020 (the “DRO”). On November 15, 2020, the Plaintiff executed a Last Will and Testament wherein she named the Defendant as her primary beneficiary and the Executor of her estate. She further named the parties’ children as alternate beneficiaries. The Plaintiff died on December 15, 2020. By a Degree Granting Probate dated May 20, 2021 (Reilly, Surrogate Court Judge), and Certificate of Appointment of Executor dated October 30, 2021, the Defendant was appointed as the Executor of the Plaintiff’s estate The Defendant filed the instant Order to Show Cause (Mot. Seq. 13) on November 29, 2021. Motion Seq. 13 was fully submitted without opposition on February 3, 2022. DISCUSSION The Defendant seeks an Order amending the caption of this matrimonial action by substituting himself, in his capacity as the Executor of the Plaintiff’s estate, for the Plaintiff herein. Pursuant to CPLR §1015, “[i]f a party dies and the claim for or against [her] is not thereby extinguished the court shall order substitution of the proper parties.” Such substitution is proper and common in matrimonial actions where a party dies prior to the entry of judgment and all that is left to effectuate a divorce is a ministerial act. See Cornell v. Cornell, 7 N.Y.2d 164 (1959); Charasz v. Rozenblum, 128 A.D.3d 631 (2nd Dept. 2015). Here, the parties were divorced prior to the Plaintiff’s death. Inasmuch as the 457 Plan was not distributed prior thereto, substitution of the Plaintiff in this action is proper, irrespective of whether the DRO is ultimately vacated. While the executor of the decedent’s estate is typically substituted for the deceased party, where the decedent’s ex-spouse is the executrix, appointing a disinterested third party to represent the interests of the estate may be appropriate to avoid an appearance of impropriety. See Graff v. Graff, 122 A.D.2d 777 (2d Dept. 1986). In her Last Will and Testament, the Plaintiff named the Defendant as both her primary beneficiary and executor of her estate. The Plaintiff’s alternate beneficiaries, who are also the only children born of the marriage, submitted affidavits consenting to and in support of the relief sought by the Defendant herein. In light thereof, amending the caption by substituting the Plaintiff with her estate, with the Defendant as the executor thereof, does not create an appearance of impropriety, and, therefore, the appointment of a neutral party is not required. Accordingly, the branch of the Defendant’s application seeking an Order amending the caption is GRANTED; and it is hereby ORDERED, that the caption of this matter is amended to read as follows: L. F., as Executor of the Estate of V. F., Deceased, Plaintiff, -against- L. F., Defendant. The Defendant seeks an Order vacating the DRO. He claims that after the parties executed the Stipulation, they “unexpectedly mended [their] formerly troubled relationship.” The Defendant further claims that he granted the Plaintiff’s request to move back into the former marital home and, “in the course of [their] post judgment relations” the parties arranged to have new wills prepared to provide for each other and their adult children. Indeed, according to the Plaintiff’s Last Will and Testament dated November 15, 2020, the Defendant is her primary Beneficiary and the Executor of her estate. (Exhibit “H” attached to the Defendant’s Order to Show Cause). Though unclear, the Defendant seems to argue that the foregoing constitutes a change in circumstances which warrants an Order vacating the DRO. The Defendant claims that his 457 Plan was not distributed prior to the Plaintiff’s death, as the DRO was never served upon the Plan administrator. He argues that if the DRO were served now, the Plaintiff’s share of his retirement account would ultimately be returned to him, after passing through the Plaintiff’s estate. He further claims, however, that if distributed to the estate, the Plaintiff’s share of his 457 Plan would become subject to the “Five-Year-Rule,” an IRS regulation which provides that certain beneficiaries must receive the entire balance of an inherited account within a five-year period. The Defendant argues, in sum and substance, that the Court can in effect distribute the Plaintiff’s share of his 457 Plan to him by simply vacating the DRO, which would protect his inheritance from the Five-Year Rule. He argues that this method would keep his 457 Plan intact and earning interest until he turns seventy years old, at which point he would be required to take distributions. He further argues that if he is forced to withdraw the entire amount over a five-year period, the sum he receives would be “significantly and needlessly reduced” by income taxes. The Defendant’s counsel argues that CPLR §5015(a), the decisions in Ladd v. Stevenson, 112 N.Y. 325 (1889) and Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62 (2003), and the body of case law stemming therefrom provide this court with the authority to vacate a judgment “for sufficient reason and in the interests of substantial justice,” irrespective of whether the specific grounds are listed in CPLR §5015(a). Woodson v. Mendon Leasing Corp., supra. This Court agrees. Here, however, the Defendant fails to establish that vacating the DRO would accomplish anything more than helping him evade income taxes. While a court of equity generally has authority to modify its own judgments, “permitting the modification of the equitable distribution provisions of a judgment of divorce ‘would effectively undermine the finality of [matrimonial] judgments.’” Welsh v. Lawler, 282 A.D.2d 977 (3d Dept. 2001) (quoting Siegel v. Siegel, 132 A.D.2d 247 [2d Dept. 1987]). Indeed, “while the law permits modification of child support and maintenance awards…there is no comparable provision allowing modification of equitable distribution awards.” Wasserman v. Wasserman, 103 A.D.3d 793 (2d Dept. 2013). Here, the Defendant’s argument that the parties’ post-judgment relationship entitles him to an Order modifying equitable distribution must fail, as it is well settled that courts cannot modify equitable distribution awards based on changes in circumstances that took place after the judgment was entered. McAuliffe v. McAuliffe, 70 A.D.3d 1129 (3d Dept. 2010) (citing Siegel v. Siegel, supra); Wasserman v. Wasserman, supra. Moreover, this Court is unaware of any statutes or caselaw empowering courts to modify orders for the purpose of evading IRS regulations and, though vacating the DRO would keep the 457 Plan from entering the probate process, the Defendant fails to address if and how the same would impact creditors. Accordingly, the branch of the Defendant’s application seeking an Order vacating the DRO is DENIED. Any other relief sought herein and not specifically ruled upon is denied. This constitutes the Decision and Order of the Court. Dated: February 17, 2022
