| Boster-Burton v Burton |
| 2010 NY Slip Op 03857 [73 AD3d 671] |
| May 4, 2010 |
| Appellate Division, Second Department |
| Mary J. Boster-Burton, Respondent, v Steven B. Burton,Appellant. |
—[*1] Bodnar & Milone, LLP, White Plains, N.Y. (Erik Kristensen of counsel), forrespondent.
In an action for a divorce and ancillary relief, the defendant former husband appeals (1), aslimited by his notice of appeal and brief, from so much of an order of the Supreme Court,Westchester County (Martin, J.), dated June 30, 2009, as granted those branches of the plaintiffformer wife's motion which were to direct him to comply with the terms of the parties'stipulation of settlement dated April 2, 2008, by transferring certain shares of stock and funds toher and to pay her a distributive award in the sum of $30,500 representing her share of theparties' Apawamis Country Club membership, (2), as limited by his brief, from so much of ajudgment of divorce of the same court dated July 23, 2009, as incorporated the terms of thestipulation of settlement pertaining to the transfer of certain shares of stock and funds to theplaintiff, and (3) from a judgment of the same court entered August 24, 2009, which, upon theorder dated June 30, 2009, is in favor of the plaintiff and against him in the principal sum of$30,500.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment dated July 23, 2009, is affirmed insofar as appealed from; and it isfurther,
Ordered that the judgment entered August 24, 2009, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the order must be dismissed because the right of direct appeal therefromterminated with the entry of the judgment dated July 23, 2009, and the judgment entered August24, 2009 (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised regarding thetransfer of certain shares of stock and funds to the plaintiff are brought up for review and havebeen considered on the appeal from the judgment dated July 23, 2009 (see CPLR 5501[a] [1]). The issues [*2]regarding the distributive award in thesum of $30,500, representing the plaintiff's share of the parties' Apawamis Country Clubmembership, are brought up for review and have been considered on the appeal from thejudgment entered August 24, 2009 (CPLR 5501 [a] [1]).
The Supreme Court correctly granted that branch of the plaintiff's motion which was todirect the defendant to comply with the terms of the parties' stipulation of settlement dated April2, 2008, by transferring certain shares of stock and funds to her. "As with other contracts, whenthe terms of a separation agreement are clear and unambiguous, the general rule is that the intentof the parties is to be found within the four corners of the agreement" (Surlak v Surlak,95 AD2d 371, 375 [1983]). Here, the terms of the stipulation of settlement in regard to thetransfer of these shares are clear and unambiguous. Article II, paragraph 15 of the agreementstates that the plaintiff "shall receive the following shares and cash from the [defendant]" andgoes on to specify the "Shares to Be Transferred to [the plaintiff]." Contrary to the defendant'scontention, nothing in the agreement implies that the parties used the gross number of shares thedefendant would receive from his employer merely for illustrative purposes as a basis forcalculating the "Shares to Be Transferred to [the plaintiff]." The agreement contains no languagesuggesting that the parties intended that the net number of shares received by the defendant afterthe withholding of taxes and fees would be used as a basis for calculating the number of shareshe was to transfer to the plaintiff under this provision.
Since the agreement is clear and unambiguous on its face, the defendant's reliance on certaincorrespondence exchanged by the parties during their negotiations is misplaced. "[A] writtenagreement that is complete, clear and unambiguous on its face must be enforced according to theplain meaning of its terms" (Greenfield v Philles Records, 98 NY2d 562, 569 [2002])."Extrinsic [or parol] evidence of the parties' intent may be considered only if the agreement isambiguous" (id.; see Lazansky v Lazansky, 148 AD2d 501 [1989]). Thedefendant's remaining contentions in this regard are either not properly before this Court orwithout merit.
The Supreme Court also correctly determined that the express language of article II,paragraph 24, of the stipulation of settlement reflects an acknowledgment that the couple'sApawamis Country Club membership is a "marital asset" and that the defendant was to retainthat asset. Pursuant to the express language of paragraph 24, the question the parties agreed tosubmit to the Supreme Court is whether the plaintiff is entitled to the cost of a "housemembership" as a distributive award in return for allowing the defendant to retain that asset.Contrary to the defendant's contention, the Supreme Court, in deciding that the plaintiff wasentitled to a distributive award in the sum of $30,500, "set forth the factors it considered and thereasons for its decision" as required by Domestic Relations Law § 236 (B) (5) (g). Wefurther find that the Supreme Court providently exercised its discretion and achieved equitybetween the parties by awarding the plaintiff a distributive award equal to the cost of a "housemembership."
Finally, to the extent the defendant raises an issue concerning that branch of the plaintiff'smotion which was for an award of attorney's fees, that issue remains pending and undecided,and, therefore, is not properly before this Court (see Katz v Katz, 68 AD2d 536, 542-543[1979]). Mastro, J.P., Santucci, Belen and Chambers, JJ., concur.