Thomas Torto, New York, for appellant.
Dawn M. Cardi & Associates, New York (Dawn M. Cardi of counsel), for respondent.
Andrias, J.P., Sweeny, Acosta, Saxe, Clark, JJ.
Order, Supreme Court, New York County (Lori S. Sattler, J.), entered March 11, 2013, which denied defendant's motion to direct plaintiff to provide him with a general release of all claims against him, granted plaintiff's cross motion to enforce the judgment of divorce with respect to the distribution of defendant's retirement accounts, and awarded plaintiff counsel fees, unanimously affirmed, without costs.
The parties' 1998 stipulation of settlement, which was incorporated but not merged into the judgment of divorce, entitled plaintiff to maintenance, half of the equity in the marital residence upon the emancipation of the parties' youngest child, and half the value of defendant's retirement accounts as of the date of transfer.
In July 2011, the parties' youngest child was emancipated. In addition, defendant had failed to make maintenance payments. Plaintiff moved to enforce her right to maintenance arrears and a payout on the division of the marital residence, as well as for counsel fees. Defendant cross-moved for, inter alia, the appointment of an appraiser for the marital residence, and an order directing plaintiff to issue an executed satisfaction of judgment and general release discharging his financial obligations and counsel fees.
In an order entered on May 10, 2012, Supreme Court awarded plaintiff $98, 500 in maintenance arrears as well as $10, 000 in counsel fees. The Court held the issue of the marital residence in abeyance and ordered the parties to appear for a conference on that issue. Defendant's cross motion was denied.
Significantly, neither party had executed the documents necessary to effectuate the transfer of plaintiff's interest in defendant's retirement accounts. Defendant apparently refused to cooperate with the preparation or execution of the QDRO and failed to provide information necessary to its preparation.
On July 5, 2012, the parties entered into a settlement with respect to the maintenance arrears, attorney's fees and expenses and the marital residence, resulting in a so-ordered stipulation on that date. The first paragraph of the July 5, 2012 stipulation states:
In full satisfaction of plaintiff's claims for: (i) her 50% interest in the former marital residence; (ii) any and all maintenance arrears, whether or not reduced to judgment; and (iii) attorney's fees and expenses, and interest, cash and disbursements, Defendant shall pay plaintiff the sum of $408, 000 subject to an increase as may be set forth in an actual payoff letter from the existing mortgage holder on the premises."
At the closing of the refinance, plaintiff was to execute and deliver a bargain and sale deed. Also at the closing, both parties were to "exchange unconditional mutual general releases."
Defendant prepared a general release to be executed by plaintiff which released any and all claims arising from this matrimonial action. At the closing, the parties' counsel entered into a mutual undertaking, which, in pertinent part, required plaintiff's counsel to deliver the release prepared by defendant after plaintiff received the $408, 000. Plaintiff later refused to deliver that release to defendant on the basis that it was improper, and instead prepared and executed an amended release which preserved her claim in defendant's retirement accounts. Defendant rejected the amended release.
Supreme Court properly found that plaintiff's delivery of the amended release satisfied her obligations under the 2012 stipulation. The 2012 stipulation was unambiguously entered into to settle only the issues of maintenance arrears, plaintiff's interest in the marital residence, and counsel fees, as it sets forth in its first paragraph. The release drafted by defendant does not reflect the parties' intentions as there is no indication that plaintiff intended to waive her interest in defendant's retirement accounts.
Properly read in context, the provision in the 2012 stipulation that calls for the parties to execute "unconditional mutual general releases" requires the parties to execute releases which apply to the issues settled by the stipulation and nothing more. Thus, interpreting the 2012 stipulation in accordance with its plain and ordinary meaning and the clear intent of the parties (see Matter of Korosh v Korosh, 99 A.D.3d 909 [2nd Dept 2012]), and in light of the limited scope of the stipulation, it ...