| LaPierre v LaPierre |
| 2011 NY Slip Op 03711 [84 AD3d 1497] |
| May 5, 2011 |
| Appellate Division, Third Department |
| Donna J. LaPierre, Respondent, v Martin J. LaPierre,Appellant. |
—[*1] Newell & Klingebiel, Glens Falls (Mark T. Montanye of counsel), for respondent.
Lahtinen, J. Appeal from an order of the Supreme Court (Hall, Jr., J.), entered September 16,2010 in Washington County, which granted defendant's motion to direct plaintiff to transfercertain assets to defendant.
The parties disagree about the proper distribution of defendant's individual retirementaccount (hereinafter IRA), which was addressed as part of an oral stipulation in February 2008that was incorporated but not merged into their divorce judgment. When the divorce action wascommenced in May 2006, defendant's IRA with Pacific Life Insurance Company had a value of$205,212.54. In August 2006, defendant withdrew $60,000 and such withdrawal, together with asignificant downturn in the economy in the second half of 2008, resulted in a value at time ofdistribution in December 2008 of $104,873.53. Pacific Life was provided with incorrectinformation indicating that the qualified domestic relations order (hereinafter QDRO) haddirected an equal split as of the date the divorce action commenced in 2006 (with no mention ofmarket adjustments) and transferred $102,606.27 to plaintiff with the balance of $2,267.26 todefendant.
Although both parties acknowledged that this did not properly reflect the stipulation orQDRO, they disagreed as to the correct calculation in light of the $60,000 withdrawal in August2006 and the significant decline in market value. Defendant moved via order to show cause foran adjustment in the distribution and urged a method of valuation in which the May 2006 value is[*2]split equally between the two parties, and then reconstructedforward as two separate accounts (with defendant's $60,000 deducted from his half in August2006). This was the method used by Pacific Life upon being provided correct information as tothe stipulation and QDRO and, under this method, plaintiff's account balance would have been$73,329.68 and defendant's balance $31,543.85 as of December 2008. Supreme Court, however,concluded that the proper payment to plaintiff should have been $82,436.77, representing thevalue at distribution ($104,873.53), plus defendant's withdrawal ($60,000) then divided in half.The court thus directed plaintiff to pay defendant $20,169.50; i.e., $102,606.27 she receivedminus $82,436.77 to which she was entitled. Defendant appeals.
"A QDRO based upon a settlement can only convey those rights agreed to by the parties" (Montero v McFarland, 70 AD3d1282, 1284 [2010]). An oral stipulation of settlement that is incorporated into a divorcejudgment "is an independent contract, subject to the principles of contract interpretation" (Ross v Ross, 16 AD3d 713, 714[2005]; see Matter of Riley v Riley,29 AD3d 1146, 1147 [2006]). The parties' stipulation provided that plaintiff would receive50% of the IRA as of the date of commencement in May 2006 plus or minus any market changes.As to the amount withdrawn by defendant, the parties agreed "that $60,000 will be deducted from[defendant's] share so that it would not have any impact on the share [of plaintiff]." Based on thestipulation, plaintiff drafted the QDRO, which stated in relevant part that "[i]t is the parties'mutual intent to provide [plaintiff] with 50% of this account as of May 30, 2006, or closestevaluation date, prorated throughout the fund, and adjusted for earnings and appreciation ordepreciation, which may have accrued on said amount from May 30, 2006, or closest evaluationdate, through the date of distribution."
The intent of the stipulation was to divide the fund as of May 30, 2006. Thereafter, plaintiff'shalf was to appreciate or depreciate separately from defendant's, and the $60,000 withdrawn bydefendant was not to have any affect on plaintiff's fund. Significantly, the $60,000 withdrawalwas fully known by the parties at the time of the stipulation, and the sole provision they made forit was that it would not have "any impact" on the value of plaintiff's share. Under plaintiff'smethodology, accepted by Supreme Court, the $60,000 has an impact, albeit a positive one forplaintiff since the market had declined. But, the parties did not agree to such a term. As shown bythe detailed information provided by Pacific Life, plaintiff's May 2006 value of $102,606.27 wasworth $73,329.68 in December 2008. She was thus entitled to $73,329.68; she actually received$102,606.27, which was an overpayment of $29,276.59 rather than $20,169.50 as found bySupreme Court.
Spain, J.P., Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the order ismodified, on the law and the facts, without costs, by directing plaintiff to transfer to defendant$29,276.59 instead of $20,169.50, and, as so modified, affirmed.