D. J. v. C. R.

2022 NY Slip Op 50420(U)

D. J., Plaintiff, v. C. R., Defendant.

Supreme Court, Nassau County

May 24, 2022

Unpublished Opinion

Index No.: XXXXX/XX

Counsel for the Plaintiff Georgia E. McCarthy PLLC

Counsel for the Defendant Roach Bernard, PLLC

JOSEPH H. LORINTZ, J.

The following papers read on this motion:

Notice of Motion, Affidavit, Affirmation, and Exhibits (Mot. Seq 07) x

Notice of Cross Motion, Affidavit, Affirmation, and Exhibits (Mot Seq. 08) x

Affirmation in Opposition, Affidavit and Exhibits x

Affirmation in Reply and Exhibits x

Upon the foregoing papers, the Plaintiff moves by Notice of Motion (Mot. Seq. 07) seeking an Order:

A. Rejecting the Domestic Relations Order submitted by the Defendant to effectuate distribution of the Plaintiff's Retirement Annuity with prejudice;

B. Sanctioning the Defendant's counsel for her repeated failed attempts to set aside the parties' Stipulation of Settlement after the parties' divorce action was settled the parties were allocuted on the record, and the Findings of Fact and Conclusions of Law and Judgment of Divorce were signed by this Court;

C. Awarding the Plaintiff counsel fees in the amount of $5, 000.00; and

D. For such other and further relief as this Court deems just and proper.

The Defendant cross moves by Notice of Cross Motion (Mot. Seq. 08) seeking an Order:

A. Modifying the parties' Stipulation of Settlement dated January 25, 2019 by declaring that the word "pension" refers to all retirement accounts owned by the parties, or, in the alternative, declaring that the word "pension" refers to the parties' four retirement accounts which were evaluated and exchanged during the divorce proceedings;

B. Awarding the Defendant reasonable attorney's fees and the costs for bringing this motion; and

C. Granting such other and further relief as this Court may deem just and proper.

BACKGROUND

The Plaintiff and the Defendant (the "parties") were married on June 4, 2002. There are no children born of the marriage. During the marriage the parties accrued the following four retirement assets: (1) the Plaintiff's Voluntary Retirement Savings Plan c/o XXXXX (the "Plaintiff's Annuity"); (2) the Plaintiff's pension plan with XXXXX (the "Plaintiff's Pension"); (3) the Defendant's Union Annuity Trust Fund (the "Defendant's Annuity"); and (4) the Defendant's Union Pension (the Defendant's Pension"). The Plaintiff commenced an action for divorce on XXX, XX, 2015.

Pursuant to a So-Ordered Stipulation to Refer Case dated October 2, 2018 (Lorintz, J.), the trial of this matter was referred to the Supervising Judge of the Matrimonial Parts, Nassau County, New York, for referral to a Judicial Hearing Officer or Court Attorney Referee. The trial of this matrimonial matter commenced before Referee Marie McCormack in XXXXX, 2018. On February 26, 2019, the parties entered into an oral stipulation resolving all ancillary issues, the terms of which were spread on the record (the "Stipulation"). Therein, the parties agreed that their "pension shall be split equally pursuant to the Majauskas formula and each party will be responsible for 50 percent of the costs." They further agreed that each party "shall be [the] sole owner of all bank accounts currently in their name, be it personal or business." The parties further agreed, inter alia, that the Plaintiff would purchase the Defendant's ownership interest in the marital residence for $250, 000.00. During their allocution, Referee McCormack asked each party to affirm their understanding that the Stipulation was a "full and final settlement of this matter resolving all issues in this matrimonial action." Both parties affirmed, and the court held that they entered into the Stipulation "freely and voluntarily."

In or about July 2019, the Plaintiff's counsel filed on notice to the Defendant's counsel, a Proposed Findings of Fact and Conclusions of Law and Proposed Judgment of Divorce, together with other papers necessary to effectuate the parties' divorce. The "Fifteenth" Paragraph of said Proposed Findings of Fact stated, "the wife's pension and Defendant's pension shall both be split in accordance with the Majauskas formula and each party shall be responsible for half the cost." The fifth ordered paragraph in the Proposed Judgment of Divorce further stated that "the Party's pensions shall be split equally pursuant to the Majauskas formula and each party shall be responsible for 50% of the costs."

On or about August 16, 2019, the Defendant filed an Order to Show Cause (Mot Seq. 05) seeking, inter alia, an Order restoring this matter to the Court's Calendar "so that all assets that have not been equitably distributed can be equitably distributed", holding the Plaintiff in contempt for violating the automatic orders, sanctioning the Plaintiff and her counsel, and awarding the Defendant counsel fees. This Court declined to sign Motion Seq. 05 on August 16, 2019. On or about August 27, 2019, the Defendant's counsel filed on notice to the Plaintiff's counsel, a Counter Proposed Judgment of Divorce, together with other papers necessary to effectuate the parties' divorce. The third ordered paragraph of the Counter Proposed Judgment provided for the distribution of both parties' annuities and pensions.

The parties were divorced by a Judgment of Divorce dated August 30, 2019 (McCormack, Referee). Referee McCormack signed the Judgement of Divorce submitted by the Plaintiff's counsel. The "phrase "Pursuant to Stipulation" was inserted at the beginning of the Fifteenth Ordered Paragraph. On or about July 21, 2021, the Defendant's counsel filed a Proposed Qualified Domestic Relations Order to distribute the Plaintiff's Annuity (the "QDRO"). The Plaintiff's counsel filed two Affirmations objecting to the QDRO before filing the instant Notice of Motion (Mot. Seq, 07) on December 24, 2021. The Defendant cross moved by Notice of Cross-Motion (Mot. Seq. 08) on January 21, 2022. The Plaintiff filed responsive papers on or about February 23, 2022, and the Defendant filed a Reply on March 20, 2022. Motion Seqs. 07 and 08 were fully submitted on May 9, 2022

DISCUSSION

The merit of both parties' applications hinge on whether the parties' retirement annuities must be distributed pursuant to the Stipulation and, if the answer is no, whether the Stipulation must be modified or vacated for not explicitly addressing the same.

"Open court stipulations of settlement are judicially favored and should not lightly be set aside." Hannigan v Hannigan, 50 A.D.3d 957 (2d Dept 2008). Parties are free to enter into agreements "that not only bind them, but which the courts are bound to enforce." Etzion v Etzion, 84 A.D.3d 1015 (2nd Dept. 2011) (quoting Greve v Aetna Live-Stock Ins. Co., 30 NYS 668, 670 [1894]). An oral stipulation of settlement spread on the record is "binding and strictly enforceable and shall not be disturbed absent a showing of one of the traditional grounds for vacatur, e.g., fraud, duress, mistake or overreaching." M.P. v L.P., 2006 NY Misc. LEXIS 4017 (Sup Ct, Queens County Mar. 10, 2006) (citing Harrington v Harrington, 103 A.D.2d 356 [2d Dept 1984]); see also CPLR § 2104. Such stipulations are contracts which are subject to the principles of contract law. Petrovovich v Obradovic, 40 A.D.3d 1063 (2d Dept 2007); Simmons v Simmons, 305 A.D.2d 661 (2d Dept 2003).

Where an agreement is clear and unambiguous on its face, the parties' intent must be construed within the four corners of the agreement and not from extrinsic evidence." Khorshad v Khorshad, 121 A.D.3d 857 (2nd Dept. 2014). "Courts should construe stipulations made in open court in accordance with the purpose of the agreement and the parties' intent by examining the entire record as a whole. Hannigan v Hannigan, 50 A.D.3d 957 (2d Dept 2008). "However, a court should not, under the guise of interpretation, make a new contract for the parties." Sklerov v Sklerov, 231 A.D.2d 622 (2d Dept 1996). A court cannot enforce a contract unless it can determine what the parties have agreed to. 166 Mamaroneck Ave. Corp. v 151 East Post Rd. Corp., 78 N.Y.2d 88 (1991). If an agreement is not reasonably certain in its terms, there can be no legally enforceable contract. Id. citing Joseph Martin, Jr., supra.

Here the Plaintiff argues that the QDRO submitted to the court by the Defendant's counsel should be rejected, as the parties waived distribution of their annuities, and agreed that only their pensions would be divided. She claims their agreement is evidenced by the clear language in the Stipulation, wherein they explicitly stated that their pensions would be distributed by a QDRO pursuant to the Majauskas formula, and by the absence of a similar clause in reference to their annuities. The Defendant claims that the parties negotiated and agreed to distribute all their retirement assets and, in entering into the Stipulation, he believed the term "pension" included all four of their accounts. He further claims that the Plaintiff and her attorney shared his understanding. The Defendant argues that the parties never contemplated waiving their interest in each other's retirement assets, as evidenced by the absence of an explicit waiver in the Stipulation. The Defendant's counsel further argues that "[i]t is well settled law in New York that waivers are legally insufficient to enforce a waiver upon a retirement account, in the context of a divorce stipulation, and New York routinely requires waivers of non-defined benefit plans such as 401k, to be specific, and the plan must be identified." In support of this purported legal principle, the Defendant cites to three cases: Eredics v Chase Manhattan Bank, N.A., 100 N.Y.2d 106 (2003); Smith v Pathmark Stores, Inc., 57 A.D.3d 759 (2d Dept 2008); and ...