| Rosenberger v Rosenberger |
| 2009 NY Slip Op 05103 [63 AD3d 898] |
| June 16, 2009 |
| Appellate Division, Second Department |
| James Rosenberger, Appellant, v Barbara Rosenberger,Respondent. |
—[*1] Barbara Rosenberger, Staten Island, N.Y., respondent pro se.
In a matrimonial action in which the parties were divorced by judgment dated June 21, 2002,the plaintiff appeals from (1) so much of an order of the Supreme Court, Richmond County(Panepinto, J.), dated April 17, 2008, as denied his motion, inter alia, in effect, to amend aqualified domestic relations order of the same court dated November 5, 2004, and (2) an order ofthe same court dated January 26, 2009, which denied his motion for leave to renew.
Ordered that the order dated April 17, 2008, is affirmed insofar as appealed from, withoutcosts or disbursements; and it is further,
Ordered that the order dated January 26, 2009, is affirmed, without costs or disbursements.
A stipulation of settlement which is incorporated but not merged into a judgment of divorceis a contract subject to principles of contract construction and interpretation (see Matter ofMeccico v Meccico, 76 NY2d 822, 823-824 [1990]; Shanon v Patterson, 38 AD3d519 [2007]; Gipp v Gipp, 37 AD3d 406 [2007]; Rivers v Rivers, 35 AD3d 426,428 [2006]). Where such an agreement is clear and unambiguous on its face, the intent of theparties must be gleaned from the four corners of the instrument, and not from extrinsic evidence(see Matter of Meccico v Meccico, 76 NY2d at 824; Sorrentino v Pearlstein, 55AD3d 901 [2008]; Colucci v Colucci, 54 AD3d 710 [2008]; Herzfeld v Herzfeld,50 AD3d 851 [2008]). An ambiguity exists only where "the agreement on its face isreasonably susceptible to more than one interpretation" (Chimart Assoc. v Paul, 66NY2d 570, 573 [1986]; see Sorrentino v Pearlstein, 55 AD3d 901 [2008]; Nappy vNappy, 40 AD3d 825 [2007]; Clark v Clark, 33 AD3d 836 [2006]).
Contrary to the plaintiff's contention, the Supreme Court did not err in concluding that theparties' stipulation of settlement entitles the defendant to receive a share of his entire accidentdisability pension. The stipulation by which the parties agreed that the defendant would receiveher "marital coverture portion" of the plaintiff's pension pursuant to a qualified domesticrelations order (hereinafter QDRO) is clear and unambiguous, and does not on its face reflect anintent to draw a distinction between the portion of the pension which would be consideredmarital property, and the portion which would be considered separate property, if this matter hadbeen adjudicated pursuant to Domestic Relations Law § 236 (B) (5) (b) (see Pulaski vPulaski, 22 AD3d 820, 821 [2005]).[*2]
Furthermore, although a retiree spouse is entitled to treat,as separate property, that portion of an accident disability pension which constitutescompensation for personal injury, where that issue is adjudicated pursuant to Domestic RelationsLaw § 236 (B) (5) (b) (see Dolan v Dolan, 78 NY2d 463, 466 [1991]; McNelisv McNelis, 6 AD3d 673, 674 [2004]; Link v Link, 304 AD2d 800, 801 [2003]),"[t]he proponent of the claim of separate property is required to demonstrate the portion of thedisability pension which is to be considered separate" (Pulaski v Pulaski, 22 AD3d at821; see Palazzolo v Palazzolo, 242 AD2d 688 [1997]; Ferrugiari v Ferrugiari,226 AD2d 498 [1996]). Here, the plaintiff, a former New York City firefighter, suffered aline-of-duty injury and applied for an accident disability pension before entering into the subjectstipulation. "Thus, he clearly was aware of or chargeable with knowledge of the prospect of hiseventual disability retirement when he entered into the stipulation" (Pulaski v Pulaski, 22AD3d at 821). Although the plaintiff acknowledged in the stipulation of settlement that he hadbeen advised of and understood his rights pursuant to the equitable distribution provisions of theDomestic Relations Law, the stipulation of settlement nevertheless provided for a division of hispension without reference to whether the pension was based on accident disability or referable toordinary service retirement. Moreover, the QDRO authorizing the defendant to receive a share ofthe plaintiff's entire pension in accordance with the Majuaskas formula (seeMajauskas v Majauskas, 61 NY2d 481 [1984]) was entered upon the plaintiff's consent afterhis application for an accident disability pension had been approved. Under these circumstances,the Supreme Court properly denied the plaintiff's motion, in effect, to amend the QDRO (seePulaski v Pulaski, 22 AD3d at 821; cf. Berardi v Berardi, 54 AD3d 982 [2008]), andproperly denied his motion for leave to renew, upon determining that the purported change inlaw he propounded as a ground for renewal would not change the outcome of his motion, ineffect, to amend the QDRO (see CPLR 2221 [e] [2]). Rivera, J.P., Florio, Belen andAustin, JJ., concur.