Here, we conclude that both parties expressly agreed in the oral stipulation that plaintiff's benefits would be distributed "[i]n accordance with the Majauskas formula." That oral stipulation was an unambiguous expression of the parties’ intent to follow Majauskas , and nothing said by plaintiff's counsel during the colloquy that led to the stipulation casts doubt on that aspect of the parties’ agreement (see Matter ofGursky v. Gursky , 93 A.D.3d 1127, 1127-1128, 941 N.Y.S.2d 760 [3d Dept. 2012] ; Elwell v. Elwell , 34 A.D.3d 1337, 1338, 826 N.Y.S.2d 920 [4th Dept. 2006] ; Hoke v. Hoke , 27 A.D.3d 1055, 1055, 811 N.Y.S.2d 528 [4th Dept. 2006] ). By referring to Majauskas , even without further elaboration, the parties made clear to the court the formula to which they were stipulating (seeGursky , 93 A.D.3d at 1128, 941 N.Y.S.2d 760 ).
Here, we conclude that both parties expressly agreed in the oral stipulation that plaintiff's benefits would be distributed "[i]n accordance with the Majauskas formula." That oral stipulation was an unambiguous expression of the parties' intent to follow Majauskas, and nothing said by plaintiff's counsel during the colloquy that led to the stipulation casts doubt on that aspect of the parties' agreement (see Matter of Gursky v Gursky, 93 A.D.3d 1127, 1127-1128 [3d Dept 2012]; Elwell v Elwell, 34 A.D.3d 1337, 1338 [4th Dept 2006]; Hoke v Hoke, 27 A.D.3d 1055, 1055 [4th Dept 2006]). By referring to Majauskas, even without further elaboration, the parties made clear to the court the formula to which they were stipulating (see Gursky, 93 A.D.3d at 1128).
"Where, as here, a stipulation of settlement is incorporated but not merged into a judgment of divorce, it constitutes an independent contract by which both parties are bound" ( Barlette v. Barlette, 95 A.D.3d 1624, 1624–1625, 945 N.Y.S.2d 475 [2012] [citations omitted]; see Dagliolo v. Dagliolo, 91 A.D.3d 1260, 1260, 937 N.Y.S.2d 466 [2012] ; LaPierre v. LaPierre, 84 A.D.3d 1497, 1498, 922 N.Y.S.2d 627 [2011] ). The parties' June 2012 stipulation unambiguously reflects their agreement to divide the wife's military pension by applying the Majauskas formula, and a review of the military pension order demonstrates that it correctly sets forth the Majauskas formula (see Loy v. Loy, 108 A.D.3d 1201, 1202, 969 N.Y.S.2d 695 [2013], lv dismissed 22 N.Y.3d 929, 976 N.Y.S.2d 443, 998 N.E.2d 1068 [2013] ; see generally Majauskas v. Majauskas, 61 N.Y.2d at 487, 492, 474 N.Y.S.2d 699, 463 N.E.2d 15 ; Matter of Gursky v. Gursky, 93 A.D.3d 1127, 1128, 941 N.Y.S.2d 760 [2012] ). We are also unpersuaded that Supreme Court abused its discretion by denying the wife's request to reopen the judgment of divorce with respect to household expenses inasmuch as she did not seek to resolve this issue until well over three years following the oral stipulation, despite ample opportunity to do so (cf. Noga v. Noga, 235 A.D.2d 1002, 1002, 653 N.Y.S.2d 47 [1997] ).
Moreover, neither Majauskas nor any precedent cited by the husband provides authority to, in essence, change a pension plan or tier from the one actually received to a less desirable one because of a retiree's premarital entry into the System. Majauskas provides a mathematical calculation to determine the value of a marital share of a pension, and it takes into account the premarriage and postmarriage periods ( see e.g. Matter of Gursky v. Gursky, 93 A.D.3d 1127, 1128, 941 N.Y.S.2d 760 [2012] ). Applied to this case, the wife's share of the husband's pension was about 44% despite a long-term marriage primarily because of the husband's premarriage years in the System.
The defendant appeals, and we modify. Under the circumstances of this case, where the parties never discussed the annuity option prior to the judgment of divorce, the Supreme Court properly declined to direct the plaintiff to furnish the defendant with a copy of her birth certificate to enable him to elect the annuity option of his pension fund ( see Matter of Gursky v. Gursky, 93 A.D.3d 1127, 941 N.Y.S.2d 760;Newman v. Newman, 269 A.D.2d 873, 703 N.Y.S.2d 800;Von Buren v. Von Buren, 252 A.D.2d 950, 951, 675 N.Y.S.2d 739). However, we agree with the defendant that the Supreme Court erred in directing the plaintiff to furnish the defendant with a copy of her birth certificate only for the purposes of his electing the 100% joint and survivor option of his pension fund or his obtaining appropriate life insurance, as that option could potentially result in an award to the plaintiff that is more than she is entitled to under the equitable distribution formula enunciated in Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699, 463 N.E.2d 15 ( see Chambers v. Chambers, 259 A.D.2d 807, 807–808, 686 N.Y.S.2d 199). The 100% joint and survivor option would, upon the defendant's death, provide the plaintiff with the full monthly retirement allowance of the defendant's pension for the rest of her life.
We affirm. A settlement agreement incorporated into a divorce judgment is subject to the principles of contract interpretation and, if its language “is unambiguous, its terms are given their plain and ordinary meaning, and the parties' intent is determined without resort to extrinsic evidence” ( Dagliolo v. Dagliolo, 91 A.D.3d 1260, 1260, 937 N.Y.S.2d 466 [2012];see Matter of Gursky v. Gursky, 93 A.D.3d 1127, 1127–1128, 941 N.Y.S.2d 760 [2012] ). Here, while relying upon the Majauskas formula to calculate plaintiff's share of defendant's pension benefit, the agreement specified that “[t]he date of valuation of the pension for purposes of equitable distribution is agreed to be May 21, 1998,” and limited plaintiff's share to 50% of the marital portion of the “accrued retirement benefit as of that date ” (emphasis added).
The Guarnera QDRO comports with the Majuaskas formula since it limits the distribution to the Ex-Wife to pension credits received during the marriage. Gursky v. Gursky, 93 AD3d 1127 (3d Dept 2012). The parties were fully apprised of this fact since the Agreement included the specific amount it was anticipated the Ex-Wife would receive based on Mr. Guarnera's analysis.
The Guarnera QDRO comports with the Majuaskas formula since it limits the distribution to the Ex–Wife to pension credits received during the marriage. Gursky v. Gursky, 93 AD3d 1127 (3d Dept 2012). The parties were fully apprised of this fact since the Agreement included the specific amount it was anticipated the Ex–Wife would receive based on Mr. Guarnera's analysis.
The Court has no basis for looking beyond the unequivocal language contained in the parties' agreement and judgment of divorce. Gursky v. Gursky, 93 AD3d 1127, (3 Dept, 2012). This court is bound by the Fourth Department which has indeed approved the use of the Majauskas formula under similar circumstances McCarthy v. McCarthy, supra.