Opinion
19 CA 21-00598
03-18-2022
RONALD J. REUKAUF, SR., PLAINTIFF-APPELLANT, v. COLLEEN KRAFT, FORMERLY KNOWN AS COLLEEN M. REUKAUF, DEFENDANT-RESPONDENT.
WILLIAM R. HITES, BUFFALO, FOR PLAINTIFF-APPELLANT.
WILLIAM R. HITES, BUFFALO, FOR PLAINTIFF-APPELLANT.
PRESENT: WHALEN, P.J., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, JJ.
Appeal from an amended order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered November 6, 2019. The amended order, inter alia, distributed the retirement benefits of plaintiff.
It is hereby ORDERED that the amended order so appealed from is unanimously modified on the law by vacating the sixth ordering paragraph and substituting therefor the provision that defendant is awarded 23.86% of plaintiff's gross monthly annuity accrued over all months of his service to his employer, and as modified the amended order is affirmed without costs.
Memorandum: In this postjudgment matrimonial proceeding, plaintiff appeals from an "Amended Court Order Acceptable for Processing" (amended order) that, inter alia, directed the United States Office of Personnel Management (OPM) to pay defendant her marital share of plaintiff's Civil Service Retirement System pension. The amended order is similar in effect to a qualified domestic relations order (QDRO). Although no appeal lies as of right from a QDRO (see Andress v Andress, 97 A.D.3d 1151, 1152 [4th Dept 2012]; Cuda v Cuda [appeal No. 2], 19 A.D.3d 1114, 1114 [4th Dept 2005]), we nevertheless treat the notice of appeal as an application for leave to appeal and grant the application (see Cuda, 19 A.D.3d at 1114).
Plaintiff contends that Supreme Court erred in determining that defendant's share of plaintiff's pension benefit should be calculated by applying the Majauskas formula (see Majauskas v Majauskas, 61 N.Y.2d 481, 489-491 [1984]) to plaintiff's total gross monthly annuity because the parties' oral stipulation limited defendant's share to 50% of that part of the pension that accrued during the parties' marriage. We reject that contention. "A QDRO obtained pursuant to a [stipulation of settlement] 'can convey only those rights... which the parties [agreed to] as a basis for the judgment'" (Duhamel v Duhamel [appeal No. 2], 4 A.D.3d 739, 741 [4th Dept 2004]; see McCoy v Feinman, 99 N.Y.2d 295, 304 [2002]). A stipulation of settlement that is "incorporated but not merged into a judgment of divorce is a contract subject to the principles of contract construction and interpretation" (Anderson v Anderson, 120 A.D.3d 1559, 1560 [4th Dept 2014], lv denied 24 N.Y.3d 913 [2015] [internal quotation marks omitted]; see Walker v Walker, 42 A.D.3d 928, 928 [4th Dept 2007], lv dismissed 9 N.Y.3d 947 [2007]). If the stipulation is "complete, clear and unambiguous on its face[, it] must be enforced according to the plain meaning of its terms" (Anderson, 120 A.D.3d at 1560 [internal quotation marks omitted]). A stipulation is unambiguous where it is not "reasonably susceptible of more than one interpretation," and in making such a determination, "the court should examine the entire [stipulation] and consider the relation of the parties and the circumstances under which it was executed" (Roche v Lorenzo-Roche, 149 A.D.3d 1513, 1514 [4th Dept 2017] [internal quotation marks omitted]).
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).
We agree with plaintiff, however, that the amended order conflicts with the court's written decision insofar as the sixth ordering paragraph of the amended order purports to award defendant 23.86% of a former spouse survivor annuity under 5 USC § 8341 (h) (1). The stated percentage represents defendant's share of plaintiff's gross monthly annuity, as calculated by the court pursuant to the Majauskas formula, but the court in its decision made no award to defendant of a former spouse survivor annuity, which, had it been awarded, would have expressly conflicted with the parties' agreement. Where, as here, there is a conflict between the decision and the order, the decision controls, and we therefore modify the amended order accordingly (see Curry v Curry, 14 A.D.3d 646, 647 [2d Dept 2005]; see generally Matter of KC B. Mench v Majerus, 188 A.D.3d 1651, 1652 [4th Dept 2020]; Waul v State of New York, 27 A.D.3d 1114, 1115 [4th Dept 2006], lv denied 7 N.Y.3d 705 [2006]).