Russo v Russo Willoughby

[*1] Russo v Russo Willoughby 2011 NY Slip Op 52258(U) Decided on December 19, 2011 Supreme Court, Kings County Sunshine, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 19, 2011
Supreme Court, Kings County

Vincent Russo, Plaintiff,

against

Gina Russo Willoughby, Defendant.



19140/2000



Vincent Russo, Esq.

Plaintiff, Pro Se

James Caffrey, Esq.

Attorney for the Defendant

Bamundo, Zwal & Schermerhorn, LLP

111 John Street, Suite 1100

New York, New York 10038

Jeffrey S. Sunshine, J.

Plaintiff, former husband, seeks apost-judgment Qualified Domestic Relations Order (QDRO) relating to the marital portion of the defendant's, his former wife, New York Police Department (NYPD) Police Officer's Variable Supplement Fund (herein after referred to as the "VSF"). Defendant opposes plaintiff's application on the basis that (1) the parties' stipulation and Judgement of Divorce are silent as to distribution of her VSF and that (2) controlling case law classified the VFS benefit neither as a non-pension benefit nor as a marital asset subject to equitable distribution at the time of the parties' stipulation and, therefore, there is no legal basis to rewrite the terms of the parties' agreement irrespective of the subsequent change in the controlling rule of law.

Background

One June 19, 2001, the parties entered into an oral stipulation of settlement on the [*2]record in open court, which was incorporated but not merged into the parties' Judgment of Divorce, dated October 4, 2002, which was entered in the Office of the County Clerk on or about October 17, 2002. Under the terms of the parties' stipulation, the parties agreed to distribute the defendant's NYPD pension. Both the parties' stipulation and the subsequent Judgment of Divorce are silent as to the defendant's VSF.

Plaintiff filed a post-judgment Order to Show Cause on March 8, 2011 seeking that the Court sign a QDRO that, among other things, awards him a portion of the defendant's VSF pursuant to the Majauskas formula (see Majauskas v. Majauskas, 61 NY2d 481, 463 N.E.2d 15 [1984]).

Defendant opposes and seeks to revise the QDRO proffered by the plaintiff by removing the inclusion of the defendant's VSF.

Discussion

The parties entered into an oral stipulation on the record in open court on June 19, 2001 resolving certain issues in their pending divorce proceeding, including the distribution of the marital portion of the defendant's NYPD pension to the plaintiff. The record, the parties' stipulation and the Judgement of Divorce are silent regarding any distribution of the defendant's NYPD VFS benefit. The totality of the parties' stipulation on the record regarding equitable distribution and QDROs was as follows:

MR. LIPPEL[FN1]:Judge there is one issue that we have resolved. That is equitable distribution.

THE COURT:Put a statement on the record.

MR. SCHWARTZ[FN2]:It has been agreed by and between the respective parties, that all marital assets have been distributed to the parties' satisfaction. In addition thereto, the parties have agreed to Q.D.R.O. their respective pensions.

MR. LIPPEL:To my knowledge, there is only one pension. That is the wife's pension.

THE COURT:Fine. You're making a representation your client has no pension?

MR. LIPPEL:That's correct.

THE WITNESS:I have nothing.

MR. LIPPEL:My client is making such a representation (Stipulation Minutes, June 19, 2001, page 6).

The plaintiff now posits that he is entitled to share in the defendant's VFS benefits based on current Appellate case law holding that a VFS benefit earned during a marriage is a marital asset subject to equitable distribution (see DeLuca v DeLuca, 97 NY2d 139, [*3]736 N.Y.S.2d 651 [2001]; see also, Pagliaro v Pagliaro, 31 AD3d 728, 821 N.Y.S.2d 602[2 Dept., 2006]); however, it is undisputed that was not the controlling rule of law when the parties entered into their stipulation.

The defendant argues that the rule of law when the parties entered into the stipulation was that the VFS was not part of the NYPD pension and that the VFS was specifically excluded from equitable distribution and, as such, was specifically not included in the stipulation. On December 26, 2000, the Second Department in DeLuca stated that "[t]he Legislature explicitly declared that the Police Superior Officers' Variable Supplements Fund "shall not be construed to constitute...a pension or retirement system or fund" (276 AD2d 143, 147, 718 N.Y.S.2d 364, [2 Dept.,2000]) and expressly and unequivocally held that "benefits paid by the statutorily-created Police Superior Officers' Variable Supplements Fund are not a marital asset subject to equitable distribution" (id. at 149). It was not until November 27, 2001, more than five months after the parties entered into their stipulation, that the Court of Appeals reversed the Second Department's decision in DeLuca and held that VFS benefits were marital assets subject to equitable distribution if earned in whole, or in part, during the marriage (see DeLuca, 97 NY2d 139).

This Court recognizes that when interpreting a contract it must arrive at a construction that will give fair meaning to the language employed by the parties in order to reach a practical interpretation so that the parties' reasonable expectations will be realized (see Herzfeld v Herzfeld, 50 AD3d 851, 857 N.Y.S.2d 170 [2 Dept., 2008]); however, the Court must interpret the terms within the four corners of the agreement where the terms of the contract between the parties are clear and unambiguous. Here, the parties consented and agreed to distribute only the defendant's NYPD pension. The question before the Court is whether or not the defendant's VFS is included in the NYPD pension. The minutes clearly reflect that the wife had only one pension.

The doctrine of legal construction dictates that, unless the contract provides otherwise, a contract, such as the stipulation at issue herein, is interpreted by the rule of law in force when the agreement was entered into because it "becomes as much a part of the agreement as though it were expressed or referred" (Ronnen v. Ajax Elec. Motor Corp., 88 NY2d 582, 589, 671 N.E.2d 534 [1996], citing Dolman v United States Trust Co. of NY, 2 NY2d 110, 116, 157 N.Y.S.2d 537 [1956]; see also, Pioneer Transp. Corp. v. Kaladjian, 105 AD2d 698, 481 N.Y.S.2d 136 [2 Dept., 1984]; see generally, Brod v. Brod, 48 AD3d 499, 852 N.Y.S.2d 272 [2 Dept., 2008]) to in the agreement and, further, it is "presumed that the parties had such law in contemplation when the contract was made" (Ronnen, 88 NY2d at 589, supra.).

This Court notes the fact that the Court of Appeals later reversed the Second Department decision in DeLuca and held that VFS benefits are subject to equitable distribution does not provide a legal basis to grant plaintiff's relief. It was long ago established by the Court of Appeals that subsequent changes in the rule of law are [*4]insufficient to override a final determination, such as the judgment herein, reached prior to the change (see Matter of Huie (Furman),20 NY2d 568, 285 N.Y.S.2d 610 [1967]; see also,Deeves v Fabric Fire Hose Co.,1 NY2d 633, 249 N.Y.S.2d 423 [1964]).

The Court of Appeals has continuously upheld this long-standing precept of legal interpretation even when expressly recognizing that the result "might at times seem harsh" (Matter of Huie, 20 NY2d at 572, supra) because "there must be an end to lawsuits" (id.). Here, the parties' stipulation on the record resolved the issues in the pending litigation between the parties and was ultimately codified in the Judgment of Divorce; therefore, the cut-off date was when the parties placed the stipulation on the record resolving equitable distribution on June 19, 2001. This Court has no authority to look back and to interpret the terms of the parties' stipulation based on subsequent change in the law. To find otherwise would pillage any reasonable expectations of the parties regarding their consensual stipulation resolving the litigation and would set a precedent that would undermine any and all finality of agreements.

The VFS was specifically excluded from the NYDP pension under the controlling Appellate case law at the time the parties stipulated to distribute the defendant's pension. As such, it is implausible that the parties, who were both represented by counsel, intended to distribute the defendant's VFS when they stipulated to distribute the defendant's pension (described as one pension). Under these circumstances, given the existing case law at that time, had they intended to distribute the defendant's VFS the parties would have had to specifically referenced it in the stipulation.

A proper QDRO obtained pursuant to a stipulation of settlement can convey only those rights to which the parties stipulated and agreed (see McCoy v Feinman, 99 NY2d 295, 755 N.Y.S.2d 693 [2002]). Here, the parties, who were both represented by counsel, entered into a stipulation. That stipulation and the resulting Judgment of Divorce are clear and specific: the parties only agreed to distribute the defendant's NYPD pension. Neither the stipulation nor the Judgment of Divorce provide for a distribution of the defendant's VFS. As such, the Court will not grant the QDRO submitted by the plaintiff as it conveys to him rights and assets not contained in the parties' stipulation or in the Judgment of Divorce.

Settle a QDRO on notice consistent with this Decision and Order on notice within 60 days of this date.

This shall constitute the decision and order of the court.

E N T E R

JEFFREY S. SUNSHINE

J. S. C. Footnotes

Footnote 1:Mr. Lippel represented the plaintiff/husband.

Footnote 2:Mr. Schwartz represented the defendant/wife.