Opinion
200748/08.
Decided July 16, 2010.
Jon Babinski, Pro Se, Plaintiff, Locust Valley, NY.
Barrocas Rieger, LLP, Attorney for Defendant, Garden City, NY.
Defendant seeks an order: (a) pursuant to Domestic Relations Law § 243 and CPLR § 6401, appointing the defendant (hereinafter "ex-wife") as Temporary Receiver of the marital residence, to take any and all measures necessary (including but not limited to hiring a contractor) to effectuate the completion of any and all renovations to the marital residence and insure that all necessary permits are secured to immediately place the marital residence on the market for sale in accordance with the terms of the parties Stipulation of Settlement dated January 29, 2009 (hereinafter "Stipulation"), incorporated into the parties Judgment of Divorce dated May 26, 2009 and entered on May 28, 2009 (hereinafter "Judgment"); (b) directing the plaintiff (hereinafter "ex-husband") to provide a detailed written inventory of the renovations performed on the marital residence from the date of execution of the Stipulation (January 29, 2009) to date including but not limited to any deviations to the schedule of renovations to be performed set forth in Schedule "B" of the parties Stipulation, as well as any work in progress or work completed on the marital residence which is not listed on Schedule "B" of the Stipulation; and (c) enforcement of the parties' Stipulation and Judgment, specifically page six (6) and seven (7), paragraph three (3), directing the ex-husband to pay one hundred (100%) percent of the costs to secure the necessary permits as well as pay the remaining costs for labor and materials to complete the renovation of the marital residence as determined by the Temporary Receiver; and (d) pursuant to page fourteen (14) paragraph four (4) of the Stipulation, directing the ex-husband to pay one hundred (100%) percent of any and all costs and expenses associated with the services rendered by the Temporary Receiver including but not limited to the initial retainer payment and any and all subsequent payments owed to the Temporary Receiver during the pendency of this post-judgment proceeding; (e) enforcement of the Stipulation and Judgment specifically pages forty (40) and forty-one (41) paragraph seven (7) directing the parties to cooperate with the preparation of the Qualified Domestic Relations Order ("QDRO") to provide the ex-wife with fifty (50%) percent of the marital portion of the ex-husband's New York City Fire Department Pension, including her right to receive survivorship benefits; (f) enforcement of the Stipulation and Judgement, specifically page fifty-nine (59), paragraph eight (8), obligating the ex-husband to "execute any reasonable documents necessary to effectuate the terms of this Stipulation, within fifteen days of presentation of said documents to that party", namely the execution of a Modification Agreement in connection with the execution and implementation of the QDRO in this matter; (g) pursuant to Article XXVII of the Stipulation and Domestic Relations law § 237(c), awarding BARROCAS RIEGER, LLP, an award of counsel fees and costs in the sum of $9,825 incurred by the ex-wife for the legal services which have been and will continue to be rendered in connection with the prosecution of the instant application, with leave to request additional fees, if warranted; and (h) pursuant to NYCRR § 202.16 and NYCRR § 1400.5 approving the Stipulation entered into between the ex-wife and ex-wife's counsel which grants a judgment to Barrocas Rieger, LLP in the amount of $16,018.10 for counsel fees and disbursements not previously secured through January 31, 2010.
The Stipulation is dated January 28, 2009 and executed by both parties on the same day.
Plaintiff, a New York City firefighter, appearing pro se, opposes said motion and cross moves for an order issuing: (1) enforcement of the parties' Stipulation of Settlement dated January 29, 2009 and Judgment of Divorce executed by the Court on May 28, 2009, specifically pages forty (40) and forty-one (41) paragraph seven (7) directing the parties to cooperate with the preparation of the Qualified Domestic Relations Order ("QDRO") to provide the ex-wife with fifty (50%) percent of the marital portion of the ex-husband's pension, including the husbands right to choose and receive the Maximum Retirement Allowance". Requesting the Court to execute QDRO submitted herewith; (2) granting the plaintiff an appropriate extension of time necessary to effectuate the completion of any and all renovations to the marital residence without further inference by the defendant and her attorneys, enabling it to be placed on the market for sale as soon as practicable in accordance with the terms of the parties Stipulation of Settlement dated January 28, 2009 (hereinafter "Stipulation") incorporated into the parties Judgment of Divorce dated May 26, 2009 and entered on May 28, 2009 (hereinafter "Judgment"); and (3) pursuant to Article XXVII of the Stipulation, granting JON M. BABINSKI, the plaintiff, an award for compensation of costs and counsel fees in the sum of $1,560 and $9,825 the sum equal to that of opposing counsels fees and costs rendered in connection with post judgment matter, totaling the sum of $11,385 with leave to request additional fees if warranted.
Branch (1) of defendant's motion seeking the appointment of a temporary receiver, inter alia, to effectuate the completion of any and all renovations to the martial residence, and branch (b) of plaintiff's cross-motion seeking an extension of time to effectuate the completion of any and all renovations to the martial residence without interference by the defendant and due in part to plaintiff suffering a medical meniscus and lateral meniscus tear to his left knee requiring surgery is set down for a hearing as the parties have conflicting affidavits regarding why the completion of the renovation to the martial residence has not been completed and to determine if the plaintiff has grounds to justify or excuse the alleged delays.
Branch (2) of defendant's motion directing the plaintiff to provide a detailed written inventory of the renovations performed on the marital residence as of the date of execution of the Stipulation dated January 28, 2009 through the date of the decision is granted without opposition.
Branch (3) of defendant's motion directing the plaintiff to pay the cost of certain permits, labor and materials as determined by a temporary receiver is denied without prejudice as premature as a hearing is necessary to determine if a receiver is necessary.
Branch (4) of defendant's motion directing the plaintiff to pay certain costs and expenses associated with the appointment of a temporary receiver is denied as premature as a hearing is necessary to determine if a temporary receiver is necessary.
Branch (5) of the defendant's motion alleges that it was the intent of the parties to provide in the Stipulation that the plaintiff would have the ability to elect the maximum retirement option while simultaneously allowing the defendant to secure survivorship rights in the pension. The defendant further alleges that if the plaintiff does in fact elect to choose the maximum retirement option under his pension then the defendant would not be entitled to any post-retirement survivorship benefits which would be inconsistent with the parties intent and therefore plaintiff should be compelled to pay 50% of the insurance premium necessary to pay for death benefits.
Not surprisingly, in branch (a) of plaintiff's cross-motion, the plaintiff disagrees with the defendant's position and claims that the Stipulation entitles him to choose any retirement option available, including the maximum retirement option and that the defendant would be entitled to survivor benefits as they are applicable to the option which he has chosen. The defendant further alleges that if he chooses an option which precludes the plaintiff form receiving post-retirement death benefits then death benefits are simply not applicable and this is consistent with the intent of the parties and the expressed language of the Stipulation. The defendant further contends that if he chose the maximum retirement option then the plaintiff would be entitled to pre-retirement survivor benefits, which again, is consistent with the parties intent.
The Stipulation provides in relevant part at page 39, Article XVI, paragraph 3 as follows:
3. The Husband's retirement benefits with the New York City Fire Department, to the extend to which it has accrued during the marriage, is marital property. It is hereby stipulated by and between the parties hereto that the Wife shall be entitled to fifty (50%) percent of the marital portion of said retirement benefits, including all cost of living adjustment and other benefits to which the Husband is entitled, together with all applicable survivors rights, pre-retirement death benefits (for which the Wife shall be a named beneficiary on the condition precedent that she survives Husband) and other benefits and same shall be paid to the Wife pursuant to a Qualified Domestic Relations Order (QDRO) pursuant to the formula devised in the case of Majauskas v. Majauskas, 61 NY2d 481 (1984), known as the "Majauskas Formula". The Husband shall be permitted to choose the maximum retirement option. The Wife shall receive her marital share of the Husband's monthly pension retirement benefit pursuant to the aforesaid Majauskas formula as and when the said benefit is to be received by the Husband.
It is well settled that Stipulations of Settlement are met with judicial favor. Absent a showing of fraud, overreaching, mistake, or duress, the stipulation should not be disturbed by the Court. See, Pollack v. Pollack, 288 AD2d 201, 732 NYS2d 578 (2d Dept. 2001). A matrimonial settlement is a contract subject to the principles of contract interpretation. When the contract is clear and unambiguous of its face, the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence. See, Moran v. Moran, 289 AD2d 544, 736 NYS2d 53 (2d Dept. 2001). In Pollack, the Qualified Domestic Relations Order contained provisions which were not in accordance with the parties open Court Stipulation of Settlement. The defendant/wife sought to include in the QDRO a provision in which the wife could name the children as beneficiaries in the event that she predeceased her husband. The Stipulation did not include a provision concerning an event in which the wife predeceased her husband. As a result, the Second Department held that an amended QDRO was required to be submitted to specifically conform with the Stipulation.
Similarly, in the instant matter the defendant is requesting this Court to either add provisions to the QDRO which are not contained in the Stipulation or rewrite the Stipulation under the guise of contract interpretation when this Court finds the Stipulation is clear and not ambiguous. More to the point, the Stipulation expressly provides for applicable survivors' rights and explicitly mentions pre-retirement death benefits which may or may not be applicable depending on future events which might make such benefits applicable, such as the wife surviving the husband. Absent from the Stipulation is any reference to "post-retirement survivors' benefits". The so called "maximum retirement option; is a well-known option among municipal pension plans and it is a matter of common knowledge that if a participant in a pension plan elects the maximum retire option, then post-retirement survivor benefits do not apply or said another way, are simply not applicable. It should also be noted that the defendant does not claim there was any fraud, overreaching, mistake or duress, regarding the impact of agreeing to let the plaintiff choose the maximum retirement option. Additionally, the defendant fails to explain the reason why the word "applicable" was used before the phrase "survivor benefits".
Generally, at retirement, a participant must choose one option which determines how the retirement benefit will be paid. There are several options the participant can choose from and all options provide the participant with a monthly benefit for life. The participant can also choose to receive a reduced monthly amount to provide for a payment to a designated beneficiary after the participant's death. In addition to the foregoing, a survivorship option can be purchased by either party, if they so choose.
In Zazel v. Zazel, 3 NY3d 331, 786 NYS2d 420 (2004), the Court of Appeals held at page 334,
Indeed, even "a stipulation's conclusory representation that the parties agreed to allocate to the nonemployee spouse all the benefits available . . . under the applicable section of the Internal Revenue Code — which authorizes but does not mandate assignment of survivor benefits ( see, 26 USC § 414[p])-does not evince the parties' intent to distribute each such benefit" ( McCoy, 99 NYS2d at 303, 755 NYS2d 693, 785 NE2d 714 [internal quotation marks omitted]). Rather, any distribution of survivor benefits should be explicitly stated.
In Zazel, supra,
Robert and Sandra Kazel were divorced in 1991. In accordance with a final posttrial judgment distributing the marital property by, among other things, dividing the husband's pension plan between the parties pursuant to equitable distribution formula established in Majauskas v. Majauskas, 61 NY2d 481, 474 NYS2d 699, 463 NE2d 15 [1984], the matrimonial court entered a QDRO directing that plaintiff wife begins to receive a fixed percentage of her former husband's monthly allowance from his . . . Pension Plan" or, at plaintiff's option, "after the earlier to occur of the first date for payments allowed under the plan or after [he] reaches the earliest retirement age under the Plan."
Robert Kazel died in 2001 before reaching retirement age, and therefore never received any payments under the plan. Following his death, plaintiff sought to share with decedent's widow in pre-retirement death benefits payable under decedent's pension plan. Because the QDRO by its plain terms, granted plaintiff an interest only in decedent's retirement annuity, and not in his death benefits, the plan administrator denied plaintiff any share of those benefits.
Additionally, in Higbie v. Higbie, 269 AD2d 677, 701 NYS2d 757 (3d Dept. 2000), the Court found a provision of a stipulation incorporated into a divorce decree requiring the former husband to name the former wife as beneficiary of his retirement plan's death benefit referred to the statutory death benefits rather than to the retirement allowance, and did not preclude the former husband from selecting a retirement option providing a reduced allowance to his current wife upon his death.
In the instant action, the parties were free to purchase an option to provide survivor benefits but neither party included an option to purchase survivorship benefits and as such, this Court will not rewrite the Stipulation to provide for same. If the defendant desires to elect a survivorship option not provided for in the aforementioned QDRO, it may do so as the plaintiff does not object to same provided the cost shall be paid for by the defendant.
Accordingly, this Court finds that the QDRO prepared by Lexington Pension Consultants, Inc., on or about March 5, 2009 at the request of counsel for the defendant and submitted to counsel for plaintiff (plaintiff's Exhibit E) accurately reflects the Stipulation of Settlement executed by the parties on or about January 28, 2009.
Branch (6) of defendant's motion requiring plaintiff to execute a Modification Agreement is denied as academic in light of the Court's ruling in branch (5) above.
Branch (7) of defendant's motion for legal fees and branch (c) of plaintiff's cross-motion for legal fees are denied.
Branch (8) of defendant's motion approving the judgment in the amount of $16,018.10 in favor of Barrocas Rieger, LLP is granted without opposition.
ORDERED, that the parties and their counsel are ordered to appear before this Court in IAS Part 26, located at 400 County Seat Drive, Mineola, NY at 9:30 a.m. on August 19, 2010 for scheduling of a hearing regarding whether plaintiff's failure to complete the renovations was the result of defendant's interference and/or unforeseeable or excusable delays and if a temporary receiver needs to be appointed regarding the completion of the renovations at the marital residence.
In addition to the foregoing, the defendant shall also notify the Court on August 19, 2010 whether or not the defendant is electing to purchase the survivorship option.
All matters not decided herein are DENIED.
This constitutes the decision and order of this Court.