| Murphy v Murphy |
| 2014 NY Slip Op 06186 [120 AD3d 1319] |
| September 17, 2014 |
| Appellate Division, Second Department |
[*1]
| Wayne F. Murphy, Appellant, v Phyllis F.Murphy, Respondent. |
Kreinces & Rosenberg, P.C., Westbury, N.Y. (Leonard Kreinces and Howard S.Rosenberg of counsel), for appellant.
Alysia R. Baker, Goshen, N.Y., for respondent.
In a matrimonial action in which the parties were divorced by judgment entered July1, 1994, the plaintiff appeals, as limited by his brief, from (1) so much of an order of theSupreme Court, Queens County (McDonald, J.), dated July 17, 2012, as, upon a decisionof the same court dated March 5, 2012, in effect, granted that branch of the defendant'smotion which was to for leave to enter an amended domestic relations order providingfor distribution of the plaintiff's pension in accordance with the parties' stipulation ofsettlement and, in effect, denied that branch of his cross motion which was for leave toenter an amended domestic relations order providing for the distribution of his pension inaccordance with the formula set forth in Majauskas v Majauskas (61 NY2d 481[1984]), (2) so much of an order of the same court entered July 27, 2012, as, uponreargument, adhered to the determinations in the order dated July 17, 2012, and (3) statedportions of an amended domestic relations order of the same court entered August 3,2012, which, inter alia, directed that the defendant's share of his pension was to becalculated using the formula set forth in the parties' stipulation of settlement.
Ordered that the appeal from the order dated July 17, 2012 is dismissed, as that orderwas superseded by the order entered July 27, 2012, made upon reargument; and it isfurther,
Ordered that on the Court's own motion, the notice of appeal from the amendeddomestic relations order is deemed to be an application for leave to appeal, and leave toappeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order entered July 27, 2012 and the amended domestic relationsorder are affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The parties were divorced pursuant to a judgment dated July 1, 1994, whichincorporated but did not merge their stipulation of settlement dated April 18, 1994. Inrelevant part, the stipulation of settlement provided that the defendant would be entitledto a percentage of the [*2]accrued pension benefits thatthe plaintiff accumulated as an employee of the New York Transit Authority in a pensionplan administered by the New York City Employees' Retirement System (hereinafterNYCERS), in an amount to be computed by applying that percentage to "the number ofmonths the parties were married, i.e., November 4, 1972, until the commencement of thisaction on April 18, 1994, which is 257 months, divided by the number of months [theplaintiff] participated in the plan at the date of his retirement from the plan." After theplaintiff retired, the Supreme Court issued a domestic relations order in September 2010(hereinafter the 2010 DRO), but it was rejected by the pension plan administrator.
Thereafter, the defendant moved to vacate the 2010 DRO and for the issuance of anamended domestic relations order (hereinafter the amended DRO) providing fordistribution of the plaintiff's pension in accordance with the formula set forth in theparties' stipulation of settlement. In addition to seeking the vacatur of the 2010 DRO, theplaintiff cross-moved for the issuance of an amended DRO providing for the distributionof his pension in accordance with the formula set forth in Majauskas v Majauskas(61 NY2d 481 [1984]).
A stipulation of settlement that has been incorporated but not merged into ajudgment of divorce is a contract subject to principles of contract construction andinterpretation (see Matter of Meccico v Meccico, 76 NY2d 822, 823-824 [1990];Tamburello v Tamburello,113 AD3d 752, 753 [2014]; Ackermann v Ackermann, 82 AD3d 1020, 1020 [2011]; Rosenberger v Rosenberger, 63AD3d 898, 899 [2009]). " 'A court may not write into a contract conditionsthe parties did not insert or, under the guise of construction, add or excise terms, and itmay not construe the language in such a way as would distort the apparentmeaning' " (Tamburello v Tamburello, 113 AD3d at 753 [2009], quotingAyers v Ayers, 92 AD3d623, 624 [2012]). A domestic relations order entered pursuant to a stipulation ofsettlement "can convey only those rights to which the parties stipulated as a basis for thejudgment" (McCoy v Feinman, 99 NY2d 295, 304 [2002]).
Here, the Supreme Court properly rejected the plaintiff's contention that thedistribution of his pension should be made in accordance with the formula set forth inMajauskas v Majauskas (61 NY2d 481 [1984]). In this regard, the stipulation ofsettlement makes no reference to the Majauskas formula, nor can one be impliedfrom its plain terms. Instead, the relevant provision of the stipulation of settlement isclear and unambiguous, as it sets forth the specific formula to be used to determine thedefendant's share of the pension. Contrary to the plaintiff's contention, the reference to"any survivor benefits" in the provision of the amended DRO applicable to the paymentof arrears did not provide a right to survivor benefits that was not provided for in thestipulation of settlement. Consequently, the Supreme Court properly granted that branchof the defendant's motion which was for leave to enter an amended DRO providing fordistribution of the plaintiff's pension in accordance with the parties' stipulation ofsettlement and, in effect, denied that branch of the plaintiff's cross motion which was forleave to enter an amended DRO providing for the distribution of his pension inaccordance with the Majauskas formula.
The plaintiff's remaining contention, raised for the first time on appeal, is notproperly before this Court (seeWells Fargo Bank, N.A. v IPA Asset Mgt. III, LLC, 111 AD3d 820, 822[2013]; Buck Realty of Long Is.,Inc. v Elliott, 106 AD3d 768, 768 [2013]).
We decline the defendant's request for the imposition of sanctions, as neither theplaintiff nor his counsel engaged in sanctionable conduct on this appeal (see 22NYCRR 130-1.1 [c]). Balkin, J.P., Leventhal, Maltese and LaSalle, JJ., concur.