Opinion
2013-02-26
Sandra S. ADELSBERG, Plaintiff–Appellant, v. Kenneth AMRON, Defendant–Respondent.
Kornstein Veisz Wexler & Pollard, LLP, New York (Daniel J. Kornstein of counsel), for appellant. Polly N. Passonneau, P.C., New York (Polly N. Passonneau of counsel), for respondent.
Kornstein Veisz Wexler & Pollard, LLP, New York (Daniel J. Kornstein of counsel), for appellant. Polly N. Passonneau, P.C., New York (Polly N. Passonneau of counsel), for respondent.
FRIEDMAN, J.P., SAXE, MOSKOWITZ, DeGRASSE, ROMÁN, JJ.
Order, Supreme Court, Bronx County (La Tia W. Martin, J.), entered January 13, 2012, which, insofar as appealed from as limited by the briefs, denied plaintiff's cross motion for an order directing that the parties' retirement assets be distributed without postcommencement earnings and/or losses in value as a result of market forces, unanimously reversed, on the law, without costs, and the cross motion granted.
A stipulation is an independent contract which is subject to the principles of contract law ( see Matter of Caruso v. Ward, 146 A.D.2d 22, 539 N.Y.S.2d 313 [1st Dept. 1989] ). A court should construe a stipulation made in open court in accordance with the intent of the parties and the purpose of the stipulation by examining the record as a whole ( see id.; Sklerov v. Sklerov, 231 A.D.2d 622, 647 N.Y.S.2d 532 [2d Dept. 1996] ).
The parties' postjudgment stipulation entered into on May 13, 2010 provided that the commencement date of the divorce action would serve as the valuation date for the distribution of their retirement assets ( seeDomestic Relations Law § 236[B][4][b]; Greenwald v. Greenwald, 164 A.D.2d 706, 565 N.Y.S.2d 494 [1st Dept. 1991], lv. denied78 N.Y.2d 855, 573 N.Y.S.2d 645, 578 N.E.2d 443 [1991] ), which they had previously agreed to distribute equally. While the stipulation was indeed silent on the issue of whether the transfers of all retirement accounts were with losses and/or earnings, courts are required to equitably distribute not only the parties' assets but their liabilities as well ( see Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415, 420, 881 N.Y.S.2d 369, 909 N.E.2d 62 [2009] ). Nevertheless, the stipulation was clear that the valuation date of the retirement assets would be the commencement date of the action, and therefore plaintiff is only required to share in the earnings and/or losses as of that date. She did not stipulate that valuation as of the date of the commencement of the action was to also include “post-commencement” value changes attributable to market forces.