| Dagliolo v Dagliolo |
| 2012 NY Slip Op 00455 [91 AD3d 1260] |
| Jnury 26, 2012 |
| Appellate Division, Third Department |
| Linda Dagliolo, Appellant, v John C. Dagliolo,Respondent. |
—[*1] Thomas F. Garner, Middleburgh, for respondent.
Garry, J. Appeal from that part of an order of the Supreme Court (Devine, J.), enteredOctober 27, 2010 in Schoharie County, which granted defendant's motion for an order providinghim with survivorship rights in plaintiff's pension.
The parties were divorced in February 2002. The judgment of divorce incorporated but didnot merge a stipulation of settlement, which directed distribution of plaintiff's pension by theMajauskas formula (see Majauskas v Majauskas, 61 NY2d 481 [1984]). In 2010,defendant moved by order to show cause for, among other things, entry of a proposed domesticrelations order granting him survivor benefits in plaintiff's pension. Supreme Court signed theproposed domestic relations order and ordered plaintiff to grant defendant survivor benefits inher pension and not to select any pension option that would not grant defendant lifetime benefits.Plaintiff appeals, arguing that the domestic relations order cannot grant defendant survivorbenefits as the underlying stipulation did not provide defendant with such benefits.[FN*][*2]
It is well settled that, where the parties have executed avalid stipulation or agreement, a domestic relations order may convey only those rights andawards upon which the parties agreed (see McCoy v Feinman, 99 NY2d 295, 304 [2002];Smith v Smith, 59 AD3d 905,906 [2009]). A "stipulation of settlement that is incorporated into a divorce judgment 'is anindependent contract, subject to the principles of contract interpretation' " (LaPierre v LaPierre, 84 AD3d1497, 1498 [2011], quoting Ross vRoss, 16 AD3d 713, 714 [2005]). As such, if the language of a stipulation isunambiguous, its terms are given their plain and ordinary meaning, and the parties' intent isdetermined without resort to extrinsic evidence (see Smith v Smith, 59 AD3d at 906;Ross v Ross, 16 AD3d at 714; Stevens v Stevens, 11 AD3d 791, 792 [2004]). Whether language isambiguous is a matter of law to be determined by the court (see Hendrix v Hendrix, 2 AD3d 1257, 1258 [2003]; Su vSu, 268 AD2d 945, 946 [2000], lv denied 95 NY2d 752 [2000]), and in renderingthis determination a court may not "add or excise terms, nor distort the meaning of those used"(Smith v Smith, 59 AD3d at 906 [internal quotation marks and citations omitted]; seeStevens v Stevens, 11 AD3d at 792).
We agree with Supreme Court that the language of the parties' stipulation explicitly providesdefendant with survivor benefits. The agreement provides that "[plaintiff] shall opt to have saidpension throughout the life of [defendant] and [plaintiff]." Contrary to plaintiff's arguments, thisprovision can only be read as providing defendant with survivor benefits in plaintiff's pension; asdefendant's interest in plaintiff's pension is measured "throughout" his own life, and not justplaintiff's life, the plain meaning of this term in the stipulation is that plaintiff must choose apension option that ensures lifetime benefits to defendant (compare Casella v Casella,306 AD2d 800, 801 [2003]; De Gaust v De Gaust, 237 AD2d 862, 863 [1997]).
Mercure, A.P.J., Peters, Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: Although no appeal as of rightlies from a domestic relations order, we will treat plaintiff's notice of appeal as an application forleave to appeal and grant the application (see Smith v Smith, 59 AD3d 905, 906 n [2009]; Zebrowski v Zebrowski, 28 AD3d883, 884 [2006]).