| Matter of Gursky v Gursky |
| 2012 NY Slip Op 02371 [93 AD3d 1127] |
| March 29, 2012 |
| Appellate Division, Third Department |
| In the Matter of Colleen Gursky, Appellant, v Joseph Gursky,Respondent. |
—[*1] Law Office of Carolyn D'Agostino, Albany (Carolyn A. D'Agostino of counsel), forrespondent.
Rose, J. Appeal from an order of the Supreme Court (Czajka, J.), entered April 14, 2011 inColumbia County, which granted defendant's motion to direct entry of a qualified domesticrelations order.
After plaintiff commenced an action for divorce, the parties entered into a partial writtenstipulation in which they agreed upon, among other things, the total present value of the maritalportion of the defined benefits component of plaintiff's pension. They did not, however, reachany agreement as to the division of this asset. Instead, they specifically reserved their rights withrespect to its equitable distribution. When they appeared for trial, they entered into an oralstipulation in which they agreed that the pension "will be divided pursuant to theMajauskas [f]ormula" (see Majauskas v Majauskas, 61 NY2d 481 [1984]). Thestipulation was incorporated but not merged into the judgment of divorce, and defendant thenmoved for an order directing entry of his proposed qualified domestic relations order. Plaintiffobjected, arguing that the proposed order exceeded the terms of the parties' stipulation because itcreated a separate pension interest for defendant by providing that he could elect to receivepayment from the pension plan when plaintiff reached the plan's early retirement age of 55,regardless of whether she had yet retired. Supreme Court rejected plaintiff's objections andgranted the motion. We reverse.[*2]
A qualified domestic relations order based on astipulation "can convey only those rights to which the parties stipulated as a basis for thejudgment" (McCoy v Feinman, 99 NY2d 295, 304 [2002]; see LaPierre v LaPierre, 84 AD3d1497, 1498 [2011]; Montero vMcFarland, 70 AD3d 1282, 1284 [2010]). Where the language of the stipulation isunambiguous, the intent of the parties must be ascertained from within its four corners and wewill not add language that the parties did not include (see Matter of Lerman v Haines, 85 AD3d 1248, 1248-1249 [2011];Ross v Ross, 16 AD3d 713,714 [2005]).
Here, there is no ambiguity. The parties agreed to divide the pension by applying theMajauskas formula. To interpret that agreement, Supreme Court was required to look toMajauskas, where the formula entitled the nonemployee spouse to receive a proportionateshare of one half of each pension check received by the employee spouse, with the denominatorof the fraction based on the length of the employee spouse's employment prior to his or herretirement (see Majauskas v Majauskas, 61 NY2d at 487). By invoking theMajauskas formula, without more, the parties stipulated that distribution of the pensionwould take effect upon plaintiff's retirement, as in Majauskas, resulting in a sharedpayment. Thus, Supreme Court's distribution of a separate pension interest to defendant prior toplaintiff's retirement improperly expanded the terms of the parties' stipulation (see McCoy vFeinman, 99 NY2d at 304-305; Stachowski v Stachowski, 35 AD3d 1245, 1246 [2006]; DeGaust v De Gaust, 237 AD2d 862, 862-863 [1997]).
Mercure, A.P.J., Malone Jr., Garry and Egan Jr., JJ., concur. Ordered that the order isreversed, on the law, without costs, and motion denied.