Opinion
10-27-2016
Jennifer SANDERS, Respondent, v. Mitchell SANDERS, Appellant.
Law Office of Terry D. Horner, Poughkeepsie (Terry D. Horner of counsel), for appellant. Stenger, Roberts, Davis & Diamond, LLP, Wappingers Falls (Darren H. Fairlie of counsel), for respondent.
Law Office of Terry D. Horner, Poughkeepsie (Terry D. Horner of counsel), for appellant.
Stenger, Roberts, Davis & Diamond, LLP, Wappingers Falls (Darren H. Fairlie of counsel), for respondent.
Before: PETERS, P.J., McCARTHY, GARRY, CLARK and AARONS, JJ.
McCARTHY, J.Appeal from an order of the Supreme Court (Schick, J.), entered January 2, 2015 in Sullivan County, which, upon reargument, among other things, granted plaintiff's motion to vacate a qualified domestic relations order.
In October 2006, the parties entered into a stipulation that was incorporated, but not merged, into their judgment of divorce. The stipulation provided, among other things, that “the wife shall be entitled to her Majauskas share of the husband's pension through his union in a sum approximating $450 per month,” starting November 1, 2006. At the time of that stipulation, defendant was only receiving one pension from which such a share could be withdrawn, a disability pension. Defendant thereafter began making $450 monthly payments to plaintiff until November 2013, when he stopped. In May 2013, plaintiff moved for a qualified domestic relations order (hereinafter QDRO) that would entitle her to such payments from defendant's pension. Defendant submitted a competing QDRO and petitioned Supreme Court to deny plaintiff's motion on the grounds that the previous payments were actually additional maintenance and that, otherwise, his disability pension constituted his separate property. Thereafter, the court approved defendant's QDRO. Plaintiff moved for leave to reargue, which the court granted and then heard oral argument. Subsequently, the court determined that the $450 payment referenced in the agreement unambiguously referred to the disability pension, vacated its prior order and directed plaintiff to submit to the court a QDRO in accordance with her position. Defendant now appeals, and we affirm.
Defendant's contention that he did not “waive” his right to his disability pension being separate property to which plaintiff has no entitlement is without merit. “A stipulation of settlement that is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation” ( Kraus v. Kraus, 131 A.D.3d 94, 100, 14 N.Y.S.3d 55 [2015] [citations omitted]; accord Penavic v. Penavic, 88 A.D.3d 671, 672, 930 N.Y.S.2d 634 [2011] ). Accordingly, if the parties intentions are clear, it is generally of no moment that their chosen division of property diverges from that which would have resulted from an adjudication based on statutory principles (see Van Orden v. Van Orden, 140 A.D.3d 1282, 1284, 32 N.Y.S.3d 730 [2016] ; Rosenberger v. Rosenberger, 63 A.D.3d 898, 899–900, 882 N.Y.S.2d 426 [2009] ).
Here, defendant was aware of the fact that the pension he was receiving was a disability pension at the time of the settlement agreement. Accordingly, and as Supreme Court correctly determined, the parties' unambiguous expression of their intention that plaintiff would share in a portion of defendant's disability pension is dispositive (see Rosenberger v. Rosenberger, 63 A.D.3d at 899–900, 882 N.Y.S.2d 426 ; Pulaski v. Pulaski, 22 A.D.3d 820, 821–822, 804 N.Y.S.2d 404 [2005] ; compare Nugent–Schubert v. Schubert, 88 A.D.3d 967, 969, 931 N.Y.S.2d 642 [2011] ). Arguments that defendant failed to raise prior to Supreme Court's order are not properly before this Court for review (see Matter of DeNoto v. DeNoto, 96 A.D.3d 1646, 1647, 946 N.Y.S.2d 809 [2012] ; Paris v. Waterman S.S. Corp., 281 A.D.2d 167, 168, 721 N.Y.S.2d 514 [2001], lv. dismissed 96 N.Y.2d 937, 733 N.Y.S.2d 376, 759 N.E.2d 375 [2001] ) and are, in any event, without merit.
ORDERED that the order is affirmed, without costs.
PETERS, P.J., GARRY, CLARK and AARONS, JJ., concur.