| Smith v Smith |
| 2009 NY Slip Op 01385 [59 AD3d 905] |
| February 26, 2009 |
| Appellate Division, Third Department |
| Hannelore F. Smith, Respondent, v Gary C. Smith,Appellant. |
—[*1] McNamee, Lochner, Titus & Williams, P.C., Albany (Bruce J. Wagner of counsel), forrespondent.
Malone Jr., J. Appeal from an order of the Supreme Court (Teresi, J.), entered July 11, 2008in Albany County, which, among other things, granted plaintiff's motion to direct entry of adomestic relations order.
Plaintiff and defendant were married on July 2, 1988 and have three children. On January 11,2000, plaintiff commenced this action for divorce against defendant alleging cruel and inhumantreatment and constructive abandonment. The parties subsequently entered into a divorcesettlement agreement addressing various matters, including the division of defendant's pensionwith the New York State and Local Retirement System. The agreement provided that the pensioncomprised marital property in which plaintiff had a one-half interest as of January 1, 2000 usingthe Majauskas formula (see Majauskas v Majauskas, 61 NY2d 481 [1984]). Itwent on to set forth the manner in which plaintiff's share would be calculated under theMajauskas formula, noting that she was to receive one half of a "fraction" of the monthlyretirement benefit. The agreement stated that the numerator of the fraction was equal todefendant's years in the plan during the marriage, which the parties agreed covered the timeperiod from July 2, 1988 through January 1, 1998. It further provided that the denominator of thefraction was equal to defendant's total years of service in the plan, which the parties agreedcovered the time period from December 7, 1978 through January 1, 1998. The agreement wasincorporated, but not merged, into the judgment of divorce.[*2]
Thereafter, in accordance with the terms of the divorcesettlement agreement, plaintiff and defendant cross-moved for entry of their respective proposeddomestic relations orders dividing defendant's pension, which contained conflicting provisions.Supreme Court issued an order in July 2007 denying these motions. In May 2008, plaintiff madeanother motion for entry of a proposed domestic relations order and defendant cross-moved forthe same relief. Supreme Court, among other things, granted plaintiff's motion and directed entryof the domestic relations order crafted by plaintiff. This appeal by defendant ensued.[FN*]
Defendant asserts that Supreme Court erroneously directed entry of plaintiff's proposeddomestic relations order. We disagree. The provisions of the domestic relations order must beconsistent with the terms of the agreement conferring such benefits (see McCoy vFeinman, 99 NY2d 295, 304 [2002]). In this case, that is the parties' divorce settlementagreement. Principles of contract construction apply in interpreting this agreement. Along theselines, it is well settled that the agreement should be read as a whole and, where unambiguous, allof its provisions should be given their plain and ordinary meaning (see Town of Wawarsing v Camp, Dresser& McKee, Inc., 49 AD3d 1100, 1102 [2008]). Notably, the " 'courts may not byconstruction add or excise terms, nor distort the meaning of those used and thereby make a newcontract for the parties under the guise of interpreting the writing' " (Vermont Teddy Bear Co. v 538 MadisonRealty Co., 1 NY3d 470, 475 [2004], quoting Reiss v Financial PerformanceCorp., 97 NY2d 195, 199 [2001]; see Worcester Creameries Corp. v City of New York, 54 AD3d 87,91 [2008]).
Here, the parties' agreement specified that January 1, 1998 was to be used in both thenumerator and denominator of the "fraction" applied under the Majauskas formula. Itfurther stated that plaintiff's share of the monthly retirement benefit was one half of this fraction.Contrary to the interpretation urged by defendant, the agreement did not provide that January 1,1998 was the "hypothetical retirement date" for purposes of calculating plaintiff's retirementallowance. Rather, prior to setting forth the manner in which plaintiff's share of the pensionwould be calculated under the Majauskas formula, the agreement provided that plaintiffhad a one-half interest in the pension, as of "January 1, 2000." The reference to this date isclearly inconsistent with the construction of the agreement sought by defendant. In fact, SupremeCourt specifically rejected defendant's interpretation in denying his cross motion for entry of aproposed domestic relations order containing this language, noting that defendant had made thevery same unsuccessful argument in his prior motion. In view of the foregoing, we find noreason to disturb Supreme Court's order.
Cardona, P.J., Mercure, Rose and Kavanagh, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: While we note that no appeal asof right lies from a domestic relations order, we shall treat defendant's notice of appeal as anapplication for leave to appeal and shall grant the same (see Zebrowski v Zebrowski, 28 AD3d 883, 884 [2006]).