| McQuade v McQuade |
| 2009 NY Slip Op 08588 [67 AD3d 867] |
| November 17, 2009 |
| Appellate Division, Second Department |
| Timothy B. McQuade, Respondent, v Nancy McQuade,Appellant. |
—[*1] Comerford & Dougherty, LLP, Garden City, N.Y. (Maureen Dougherty of counsel), forrespondent.
In a matrimonial action in which the parties were divorced by judgment entered March 29,2001, the defendant former wife appeals from an order of the Supreme Court, Suffolk County(McNulty, J.), dated October 24, 2008, which denied her motion, inter alia, in effect, to clarify aqualified domestic relations order of the same court (Molia, J.) dated January 19, 2005,distributing her share of the plaintiff former husband's pension pursuant to the parties' separationagreement.
Ordered that the order dated October 24, 2008 is modified, on the law, by deleting theprovision thereof denying that branch of the defendant's motion which was, in effect, to clarifythe qualified domestic relations order dated January 19, 2005, and substituting therefor aprovision granting that branch of the motion, vacating the qualified domestic relations orderdated January 19, 2005, and directing the entry of an amended qualified domestic relations orderin the form submitted by the defendant as exhibit D to her moving papers ; as so modified, theorder dated October 24, 2008 is affirmed, with costs to the defendant.
This matrimonial action was commenced on May 19, 1998 and in September 1999 theparties entered into a stipulation of settlement, which provided, among other things, that whenthe plaintiff former husband retired from his position as a police officer, the defendant formerwife would be entitled to a share of his retirement benefits. The Supreme Court issued a qualifieddomestic relations order (hereinafter QDRO) dated January 19, 2005 which reflected the termsof the parties' stipulation and provided, in relevant part, that if the plaintiff retired under "section384-d of the New York State & Local Police and Fire Retirement System" (an apparent referenceto Retirement and Social Security Law § 384-d), the defendant's monthly share would be$1,317.54, but if the plaintiff retired under any other section, the defendant would be entitled to35.19% of the plaintiff's monthly benefits, "determined as of May 19, 1998, using the years ofcredited service and Final Average Salary accumulated as of May 19, 1998."
In or about June 2005 the plaintiff retired, and began receiving benefits pursuant toRetirement and Social Security Law § 384-e. The New York State and Local Police andFire Retirement System (hereinafter the Retirement System) acknowledged that the defendant'smonthly share of the benefits paid pursuant to section 384-e would be $1,740.52, but refused todisburse the increased [*2]amount to the defendant unless theQDRO was amended to specifically instruct it to do so. The defendant submitted to the SupremeCourt a proposed amended QDRO, which included language specifically instructing theRetirement System to "calculate a 384-e benefit determined as of May 19, 1998," and pay theformer wife "35.19% of that benefit or the sum of $1,740.52 per month," retroactive to the dateof the plaintiff's retirement. The court, however, did not sign the proposed amended QDRO.
The defendant, represented by new counsel, subsequently moved, inter alia, in effect, toclarify the QDRO by adding the instructions proposed by the Retirement System. The SupremeCourt denied the motion, and the defendant appeals.
The Supreme Court correctly concluded that the QDRO was consistent with the terms of thestipulation of settlement. Under both documents, however, the defendant was clearly entitled to35.19% of the plaintiff's section 384-e retirement allowance. The Retirement System has takenthe position that, even though the plaintiff retired under section 384-e, the defendant could onlybe awarded a share of the benefits the plaintiff would have received under section 384-d, sincethe QDRO employed the phrase "determined as of May 19, 1998," and the section 384-dretirement plan was the only plan available to the plaintiff on May 19, 1998. This reasoning isflawed. The QDRO sets forth separate instructions for making payments to the defendant "[i]fthe Participant retires under . . . any . . . Section other than384-d" (emphasis supplied) (hereinafter the alternative payment provision). The reference inthose instructions to May 19, 1998 merely serves to separate the marital portion of the plaintiff'sretirement benefits from the individual portion of those benefits. Even if the plaintiff's ability toretire under the section 384-e plan was attributable to his continued employment subsequent toMay 19, 1998, the defendant possesses "the right to share in the pension as it is ultimatelydetermined" (Olivo v Olivo, 82 NY2d 202, 210 [1993]).
General principles of contract construction, which apply to the stipulation of settlemententered into in this case (see Malleolo v Malleolo, 287 AD2d 603 [2001]), require courtsto "adopt an interpretation which gives meaning to every provision of a contract"; in otherwords, "no provision of a contract should be left without force and effect" (Muzak Corp. vHotel Taft Corp., 1 NY2d 42, 46 [1956]; see Zullo v Varley, 57 AD3d 536, 537 [2008]; Malleolo vMalleolo, 287 AD2d at 603-604). Construing the QDRO to mean that the defendant is onlyentitled to payments in accordance with the retirement plan for which the plaintiff would havebeen eligible had he retired on May 19, 1998, would render the alternative payment provisionmeaningless and illusory. The parties were presumably aware, when they entered into thestipulation in September 1999, that on May 19, 1998, the plaintiff was eligible to retire onlyunder the section 384-d plan, and yet the QDRO reflecting the parties' agreement contained thealternative payment provision. That provision must be given effect.
Since the Retirement System has not recognized that the QDRO requires disbursement to thedefendant of the greater monthly amount payable under section 384-e, it is appropriate to clarifythe QDRO by inserting the specific language proposed by the Retirement System, which isreflected in the proposed amended QDRO previously submitted to the Supreme Court by thedefendant (see Sylvester v Sylvester, 290 AD2d 501, 502 [2002]; cf. Arguinzoni v Parkway Hosp., 14AD3d 633, 634 [2005]).
In addition, the defendant's motion was not untimely made (see Kiker v NassauCounty, 85 NY2d 879, 881-882 [1995]; Skrodelis v Norbergs, 272 AD2d 316[2000]; cf. Duhamel v Duhamel, 4AD3d 739 [2004]).
The Supreme Court properly denied those branches of the defendant's motion which were forenforcement of certain provisions of the stipulation of settlement and an award of an attorney'sfee. The defendant failed to demonstrate that the plaintiff defaulted in the performance of theterms of the stipulation of settlement. Prudenti, P.J., Skelos, Covello and Austin, JJ., concur.