| Tamburello v Tamburello |
| 2014 NY Slip Op 00342 [113 AD3d 752] |
| January 22, 2014 |
| Appellate Division, Second Department |
| Charles Tamburello, Appellant, v ReginaTamburello, Respondent. |
—[*1] Eric Dubinsky, Westbury, N.Y., for respondent.
In a matrimonial action in which the parties were divorced by judgment of divorceentered December 22, 2010, the plaintiff appeals, as limited by his brief, from so much ofan order of the Supreme Court, Suffolk County (MacKenzie, J.), dated September 19,2011, as denied those branches of his motion which were to enforce a stipulation ofsettlement dated July 26, 2010, which was incorporated but not merged in the judgmentof divorce, to the extent of compelling the defendant to file joint income tax returns withthe plaintiff for the tax year 2008 and compelling the defendant to turn over certain itemsof jewelry, and for an award of an attorney's fee and related expenses.
Ordered that the order is affirmed insofar as appealed from, with costs.
" 'A stipulation of settlement which is incorporated but not merged into a judgmentof divorce is a contract subject to principles of contract construction and interpretation' "(Ackermann v Ackermann,82 AD3d 1020, 1020 [2011], quoting Rosenberger v Rosenberger, 63 AD3d 898, 899 [2009];see Matter of Meccico v Meccico, 76 NY2d 822, 823-824 [1990]; Matter of Korosh v Korosh, 99AD3d 909, 910 [2012]; Ayers v Ayers, 92 AD3d 623, 624 [2012]). " 'Where suchan agreement is clear and unambiguous on its face, the intent of the parties must begleaned from the four corners of the instrument, and not from extrinsic evidence' "(Ackermann v Ackermann, 82 AD3d at 1021, quoting Rosenberger vRosenberger, 63 AD3d at 899; see Matter of Meccico v Meccico, 76 NY2dat 824). "A court may not write into a contract conditions the parties did not insert or,under the guise of construction, add or excise terms, and it may not construe the languagein such a way as would distort the apparent meaning" (Ayers v Ayers, 92 AD3dat 624; see Slatt v Slatt, 64 NY2d 966, 967 [1985]; Cohen-Davidson vDavidson, 291 AD2d 474, 475 [2002]; Matter of Scalabrini v Scalabrini,242 AD2d 725, 726 [1997]). "Moreover, a court cannot reform an agreement to conformto what it thinks is proper, if the parties have not assented to such a reformation"(Cohen-Davidson v Davidson, 291 AD2d at 475; see Cappello vCappello, 286 AD2d 360 [2001]; Tinter v Tinter, 96 AD2d 556, 557 [1983];Leffler v Leffler, 50 AD2d 93, 95 [1975], affd 40 NY2d 1036 [1976]).
Applying these principles here, the parties' stipulation of settlement, which was [*2]incorporated but not merged in the judgment of divorce,did not obligate the parties to file joint income tax returns for the year 2008. Indeed,there is no language in the stipulation which supports the plaintiff's contention that thedefendant was required to file joint tax returns for the year 2008. Accordingly, theSupreme Court properly denied that branch of the plaintiff's motion which was to compelthe defendant to file joint income tax returns with the plaintiff for the year 2008.
Contrary to the plaintiff's contention, the Supreme Court properly denied, aspremature, that branch of his motion which was to compel the defendant to turn overcertain items of jewelry, as the parties had yet to determine the retail value of those itemsso that the jewelry could be equally divided between the parties in accordance with thestipulation of settlement.
There is no merit to the plaintiff's contention regarding the Supreme Court's denial ofthat branch of his motion which was for an award of an attorney's fee and relatedexpenses. Mastro, J.P., Chambers, Lott and Miller, JJ., concur.