| Smith v Smith |
| 2010 NY Slip Op 06020 [75 AD3d 784] |
| July 8, 2010 |
| Appellate Division, Third Department |
| Eileen Smith, Respondent, v William Smith,Appellant. |
—[*1] Cynthia Feathers, Saratoga Springs, for respondent.
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 transfer certain assetsfrom defendant to plaintiff.
During the course of their divorce action, the parties entered into an oral stipulation in opencourt that provided for, among other things, the distribution of marital assets, including severalretirement and bank accounts. That stipulation was later incorporated, but not merged, into ajudgment of divorce. Several months thereafter, the parties executed an agreement whereby theyagreed to, among other things, release each other from all claims related to any marital assetsthat remained undivided, excepting claims with respect to undivided financial accounts that wererequired by the judgment of divorce to be divided by domestic relations orders. Following theexecution of this release agreement, a dispute arose regarding a particular account that had notbeen divided—a "Command IRA" account held by Wachovia Securities, LLC, worthapproximately $123,000. Ultimately, plaintiff moved by order to show cause for an orderdistributing 50% of that Wachovia IRA to her, arguing that it was an account that was requiredto be divided by a domestic relations order according to the judgment of divorce and, thus, therelease agreement did not prohibit her claim thereto. Defendant opposed that motion andcross-moved for an order rescinding the release agreement in the event that Supreme Courtdetermined that the Wachovia IRA was not released thereunder. Supreme Court granted [*2]plaintiff's motion and denied the cross motion, prompting thisappeal.[FN*]
Although defendant conceded at oral argument that the parties' stipulation required them toevenly divide the Wachovia IRA between them, he contends that the stipulation did not requirethe division to be made by a domestic relations order. Accordingly, defendant's position is thatplaintiff waived her right to a one-half distribution of the Wachovia IRA when she signed therelease agreement. We disagree. It is well settled that, in enforcing an oral stipulation ofsettlement that was made in open court, "[t]he role of the court is to determine the intent andpurpose of the stipulation based on an examination of the record as a whole" (Matter ofWeiss v Weiss, 289 AD2d 498, 498 [2001]; accord Lacorazza v Lacorazza, 47 AD3d 897, 898 [2008]). Here,according to the stipulation, all of the parties' retirement accounts would be distributed pursuantto a domestic relations order, retained by one party without adjustment or retained by one partywith a monetary payout to the other. The Wachovia IRA at issue was one that the parties agreedto "split" at some later undetermined time. For all of the retirement accounts that the partiesagreed to divide in the future—excepting the account at issue—defense counselstated on the record that the distribution would be made by a domestic relations order.Consequently, although defense counsel did not specifically refer to a domestic relations orderwhen stating that the Wachovia IRA at issue was to be split between the parties, we agree withSupreme Court that a reading of the stipulation as a whole reflects an intent that all of theaccounts that were to be divided were to be distributed by domestic relations orders. As such,plaintiff's claim to a one-half interest in that account was not released by the agreement.
We are not persuaded by defendant's claim that Supreme Court should have granted his crossmotion for rescission of the parties' release agreement. An agreement made in the context of adivorce "will not be set aside unless there is evidence of 'overreaching, fraud, duress or a bargainso inequitable that no reasonable and competent person would have consented to it' " (Empie v Empie, 46 AD3d 1008,1009 [2007], quoting Curtis vCurtis, 20 AD3d 653, 654 [2005]). Both parties here were represented by counselduring the negotiation and execution of the agreement and were aware of the terms of the oralstipulation and their rights and obligations thereunder. Moreover, although defendant makesvarious allegations related to purported support overpayments that he made, he has not offeredany evidentiary proof to support such claims. Accordingly, we cannot say that Supreme Courterred in denying defendant's motion for rescission of the release agreement (see Empie vEmpie, 46 AD3d at 1010; Cross v Cross, 290 AD2d 920, 922 [2002]).
Mercure, J.P., Kavanagh, Stein and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: A question arose regarding thetimeliness of this appeal given the length of time between the entry of Supreme Court's order andthe date on which the notice of appeal was filed. We do not reach the merits of this issue as it isundisputed that the order was never served with notice of entry. Consequently, we need notdetermine whether Supreme Court had the authority pursuant to the Service Members CivilRelief Act to grant defendant an extension of time to take an appeal.