Opinion
5465
December 4, 2001.
Order, Supreme Court, New York County (Jacqueline Silbermann, J.), entered on or about November 2, 2000, which, to the extent appealed from, struck those of the parties' stipulation of settlement and judgment of divorce requiring distribution of their respective pensions, unanimously affirmed, with costs.
Howard Benjamin, for plaintiff-respondent.
Paul Martin Weltz, for defendant-appellant.
Rosenberger, J.P., Nardelli, Mazzarelli, Wallach, Marlow, JJ.
The parties' stipulation of settlement, incorporated but not merged into their divorce judgment, provided, in relevant part, that defendant would be entitled to distribution of 50% of plaintiff's pension and that plaintiff would be entitled to distribution of 75% of the portion of defendant's pension that was deemed marital property, valued as of 1986. When plaintiff attempted to obtain distribution of her agreed upon share of defendant's pension, however, she learned that defendant had no vested pension rights in 1986 and, accordingly, that enforcement of the stipulation of settlement would result in her surrendering half of her pension while receiving 75% of nothing from defendant's pension plan. Inasmuch as the record demonstrates that defendant knew that his pension had not vested as of the valuation date specified in the stipulation and that defendant acted to reinforce plaintiff's misimpression that she would receive from defendant's pension plan 75% of benefits of $484.06 per month, as provided in the Qualified Domestic Relations Order annexed to and incorporated into the parties' stipulation of settlement, the court properly exercised its equitable powers to rescind, as manifestly inequitable, that part of the stipulation of settlement entitling the parties to distribution from each other's pensions. "To warrant equity's intervention, no actual fraud need be shown, for relief will be granted if the settlement is manifestly unfair to a spouse because of the other's overreaching" (Christian v. Christian, 42 N.Y.2d 63, 72-73).
We have considered defendant's remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.