Opinion
2012-01-26
Linda DAGLIOLO, Appellant, v. John C. DAGLIOLO, Respondent.
Jo Ann E. Coughtry, Altamont, for appellant. Thomas F. Garner, Middleburgh, for respondent.
Jo Ann E. Coughtry, Altamont, for appellant. Thomas F. Garner, Middleburgh, for respondent.
Before: MERCURE, Acting P.J., PETERS, ROSE, LAHTINEN and GARRY, JJ.
GARRY, J.
Appeal from that part of an order of the Supreme Court (Devine, J.), entered October 27, 2010 in Schoharie County, which granted defendant's motion for an order providing him with survivorship rights in plaintiff's pension.
The parties were divorced in February 2002. The judgment of divorce incorporated but did not merge a stipulation of settlement, which directed distribution of plaintiff's pension by the Majauskas formula ( see Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699, 463 N.E.2d 15 [1984] ). In 2010, defendant moved by order to show cause for, among other things, entry of a proposed domestic relations order granting him survivor benefits in plaintiff's pension. Supreme Court signed the proposed domestic relations order and ordered plaintiff to grant defendant survivor benefits in her pension and not to select any pension option that would not grant defendant lifetime benefits. Plaintiff appeals, arguing that the domestic relations order cannot grant defendant survivor benefits as the underlying stipulation did not provide defendant with such benefits.
Although no appeal as of right lies from a domestic relations order, we will treat plaintiff's notice of appeal as an application for leave to appeal and grant the application ( see Smith v. Smith, 59 A.D.3d 905, 906 n., 874 N.Y.S.2d 300 [2009]; Zebrowski v. Zebrowski, 28 A.D.3d 883, 884, 813 N.Y.S.2d 803 [2006] ).
It is well settled that, where the parties have executed a valid stipulation or agreement, a domestic relations order may convey only those rights and awards upon which the parties agreed ( see McCoy v. Feinman, 99 N.Y.2d 295, 304, 755 N.Y.S.2d 693, 785 N.E.2d 714 [2002]; Smith v. Smith, 59 A.D.3d 905, 906, 874 N.Y.S.2d 300 [2009] ). A “stipulation of settlement that is incorporated into a divorce judgment ‘is an independent contract, subject to the principles of contract interpretation’ ” ( LaPierre v. LaPierre, 84 A.D.3d 1497, 1498, 922 N.Y.S.2d 627 [2011], quoting Ross v. Ross, 16 A.D.3d 713, 714, 791 N.Y.S.2d 187 [2005] ). As such, if the language of a stipulation is unambiguous, its terms are given their plain and ordinary meaning, and the parties' intent is determined without resort to extrinsic evidence ( see Smith v. Smith, 59 A.D.3d at 906, 874 N.Y.S.2d 300; Ross v. Ross, 16 A.D.3d at 714, 791 N.Y.S.2d 187; Stevens v. Stevens, 11 A.D.3d 791, 792, 783 N.Y.S.2d 683 [2004] ). Whether language is ambiguous is a matter of law to be determined by the court ( see Hendrix v. Hendrix, 2 A.D.3d 1257, 1258, 768 N.Y.S.2d 840 [2003]; Su v. Su, 268 A.D.2d 945, 946, 702 N.Y.S.2d 455 [2000], lv. denied 95 N.Y.2d 752, 711 N.Y.S.2d 154, 733 N.E.2d 226 [2000] ), and in rendering this determination a court may not “add or excise terms, nor distort the meaning of those used” ( Smith v. Smith, 59 A.D.3d at 906, 874 N.Y.S.2d 300 [internal quotation marks and citations omitted]; see Stevens v. Stevens, 11 A.D.3d at 792, 783 N.Y.S.2d 683).
We agree with Supreme Court that the language of the parties' stipulation explicitly provides defendant with survivor benefits. The agreement provides that “[plaintiff] shall opt to have said pension throughout the life of [defendant] and [plaintiff].” Contrary to plaintiff's arguments, this provision can only be read as providing defendant with survivor benefits in plaintiff's pension; as defendant's interest in plaintiff's pension is measured “throughout” his own life, and not just plaintiff's life, the plain meaning of this term in the stipulation is that plaintiff must choose a pension option that ensures lifetime benefits to defendant ( compare Casella v. Casella, 306 A.D.2d 800, 801, 760 N.Y.S.2d 909 [2003]; De Gaust v. De Gaust, 237 A.D.2d 862, 863, 655 N.Y.S.2d 670 [1997] ).
ORDERED that the order is affirmed, without costs.