State of New York Supreme Court, Appellate Division Third Judicial Department
January 26, 2012
LINDA DAGLIOLO, APPELLANT,
JOHN C. DAGLIOLO, RESPONDENT.
The opinion of the court was delivered by: Garry, J.
MEMORANDUM AND ORDER
Calendar Date: November 22, 2011
Before: Mercure, Acting P.J., Peters, Rose, Lahtinen and Garry, JJ.
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 NY2d 481 ). 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.*fn1
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 NY2d 295, 304 ; Smith v Smith, 59 AD3d 905, 906 ). 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 AD3d 1497, 1498 , quoting Ross v Ross, 16 AD3d 713, 714 ). 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 AD3d at 906; Ross v Ross, 16 AD3d at 714; Stevens v Stevens, 11 AD3d 791, 792 ). Whether language is ambiguous is a matter of law to be determined by the court (see Hendrix v Hendrix, 2 AD3d 1257, 1258 ; Su v Su, 268 AD2d 945, 946 , lv denied 95 NY2d 752 ), and in rendering this determination a court may not "add or excise terms, nor distort the meaning of those used" (Smith v Smith, 59 AD3d at 906 [internal quotation marks and citations omitted]; see Stevens v Stevens, 11 AD3d at 792).
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 AD2d 800, 801 ; De Gaust v De Gaust, 237 AD2d 862, 863 ).
Mercure, Acting P.J., Peters, Rose and Lahtinen, JJ., concur.
ORDERED that the order is affirmed, without costs.
Robert D. Mayberger Clerk of the Court