Freer v Freer
Annotate this CaseDecided on September 10, 2018
Supreme Court, Ulster County
Elizabeth Freer n/k/a Elizabeth Kennedy, Plaintiff,
against
Michael Freer, Defendant.
97-2922
Joseph M. Ingarra, Esq.
Counsel for Plaintiff
145 Wall Street
P.O. Box 3190
Kingston, New York 12402
Carol K. Morgan, Esq.
Counsel for Defendant, movant
Morgan & Spinac, Attorneys at Law
325 Wall Street
Kingston, New York 12401
Lisa M. Fisher, J.
This is a matrimonial matter wherein Defendant seeks to have this Court execute an amended qualified domestic relations order (hereinafter "QDRO") in the place and stead of the QDRO signed on February 25, 2002 by Supreme Court (Bradley, J.). The gravamen of the application is that the prior QDRO erroneously granted Plaintiff a survivor option and death benefits from Defendant's pension. Defendant argues the matrimonial separation agreement did not provide for such survivor option and death benefits, but the QDRO executed by Plaintiff's counsel improperly included same. Defendant alleges he did not receive notice of the proposed QDRO when it was signed, and only learned of such issue when he recently met with this retirement system representative to finalize retirement details. Defendant contends there is a significant difference in his monthly pension payments considering the inclusion or exclusion of the survivor option and death benefits.
Plaintiff opposes the application by arguing that the QDRO was sent to Defendant on notice and he consented to same. She alleges that Defendant is lying and he made the mistake but it is somehow "always [her] fault" as it was "during our marriage." Plaintiff's present counsel is the same counsel who drafted the subject QDRO, and provides that he copied Defendant's prior lawyer with the proposed QDRO before it was signed by Supreme Court [*2](Bradley, J.). Plaintiff's counsel also indicates that changes were requested and ultimately approved by the New York State and Local Retirement Systems (hereinafter "NYSLRS") in written correspondence from Carolyn D'Agostino, Esq., which copied Defendant on such approval. Plaintiff's counsel contends that Defendant knew about the subject QDRO and the approved Order on or before March 24, 2003, and should be barred from making an application pursuant to CPLR R. 5015 as more than one year has elapsed.
Defendant submits a reply contending that he was not represented for the prior QDRO and correspondence to his divorce lawyer was wherein ineffective. Nor does a letter to him from NYSLRS stating the QDRO was approved as it does not explain the terms therein. He argues that, notwithstanding the fact he did not receive notice, it is clear the prior QDRO does not accurately reflect the terms of the Separation Agreement which is the operative and controlling document.
Oral argument was held on this matter, wherein the Court noted it received correspondence from Carolyn D'Agostino, Esq., whom is now in private practice and no longer with the NYSLRS, affirming that the prior QDRO "was inconsistent with the terms of the parties' Separation Agreement in that it provided for survivorship and death benefits when the Agreement did not award the Alternative Payee these assets." This was carbon copied to Plaintiff's present counsel and Defendant.[FN1] The Court further outlined its position as to vacatur and the language of the matrimonial separation agreement, including the possibility of an in-court stipulation on the record—which there was no oral stipulation. The parties were offered the opportunity to submit a supplement, wherein none was received by chambers.
Relief from judgment or order is governed by CPLR R. 5015, which provides under subdivision (a) a list of five grounds where a "court which rendered a judgment or order may relief a party from it upon such terms as may be just, on motion of any interested person" (CPLR R. 5015 [a]). Only subdivision (a) (1) carries with it a one-year time limit. However, this list of five grounds is "by no means exhaustive" (Matter of Commissioner of Social Servs. of Rensselaer County [Faresta] v Faresta, 11 AD3d 750, 751 [3d Dept 2004]) and "merely codif[ies] some of the principal grounds upon which the courts can exercise their inherent power to vacate, but do not set forth an exhaustive list or in any way limit this power" (Matter of Delfin A., 123 AD2d 318, 230 [2d Dept 1986]).
As such, "a court may vacate its own judgment for a sufficient reason and in the interests of substantial justice" (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; see Borst v International Paper Co., 121 AD3d 1343. 1348—49 [3d Dept 2014] ["Courts are not limited to vacating a judgment pursuant to the enumerated grounds set forth in CPLR 5015, however, as they 'retain inherent discretionary power to vacate their own judgments for sufficient reason and in the interests of substantial justice."]). This principle of law has been long-held as an inherent power of the court to vacate its own judgments, which is not limited to the statute, but also a court "may open them upon the application of anyone for sufficient reason, in the furtherance of justice" (Ladd v Stevenson, 112 NY 325 [1889] [noting that the court's "power to do so does not depend upon any statute, but is inherent, and it would be quite unfortunate if it did not possess it [*3]to the fullest extent."]).
It is well-established that "[w]hen the distribution of pension benefits between former spouses is accomplished through a QDRO obtained pursuant to a stipulation, such QDRO 'can convey only those rights to which the parties stipulated as a basis for the judgment'" (Kraus v Kraus, 131 AD3d 94, 100 [2d Dept 2015], quoting Berardi v Berardi, 54 AD3d 982, 985 [2d Dept 2008], citing McCoy v Feinman, 99 NY2d 295, 304 [2002]; accord Dagliolo v Dagliolo, 91 AD3d 1260, 1260 [3d Dept 2012]). As such, "a court errs in granting a domestic relations order encompassing rights not provided in the underlying stipulation, or a QDRO more expansive than an underlying written separation agreement" (McCoy, 99 NY2d at 304). This is because pension survivor and death benefits are separate from Majauskas calculations and must be independently negotiated; they are not automatically deemed part of pension benefits.(See Wojtowicz v Wojtowicz, 171 AD2d 1073 [4th Dept 1991], quoting Culnan v Culnan, 142 AD2d 805 [3d Dept 1988]; see also Alleva v Alleva, 112 AD3d 567 [2d Dept 2013] [finding trial court properly exercised discretion in declining to award plaintiff-wife a share of pre-retirement or joint and survivor pension benefits where the trial record did not contain specific evidence regarding pre-retirement death benefits available under defendant husband's pension plans or any option for joint and survivor benefits]).
"A 'stipulation of settlement that is incorporated into a divorce judgment is an independent contract, subject to the principles of contract interpretation'" (Dagliolo, 91 AD3d at 1260, quoting LaPierre v LaPierre, 84 AD3d 1497, 1498 [3d Dept 2011] [other quotations and citations omitted]). "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" (Dagliolo, 91 AD3d at 1260, citing Smith v Smith, 59 AD3d 905, 906 [3d Dept 2009]). "Whether language is ambiguous is a matter of law to be determined by the court, and in rendering this determination a court may not add of excise terms, nor distort the meaning of those used" (Dagliolo, 91 AD3d at 1260—61 [quotations and citations omitted]).
Here, the judgment of divorce signed on November 14, 2000 incorporates but does not merge the marital separation agreement. The judgment of divorce is silent as to rights of survivor option or death benefits to Plaintiff from Defendant's pension. The marital separation agreement dated March 3, 2000 and filed on November 21, 2000 does not expressly provide rights of survivor option or death benefits. There is no language, let alone any possibly ambiguous language, which would provide otherwise in the martial separation agreement. The first instance of such language appears in the record before the Court in the QDRO signed on February 25, 2003 and filed on March 4, 2003. Inasmuch as a QDRO can only convey those rights to which the parties stipulated as a basis for the judgment, such conveyance of survivor option and death benefits to Plaintiff from Defendant's pension is without authority and was improperly done by Plaintiff.
Therefore, finding a sufficient reason exists and in the interests of substantial justice, the Court exercises its inherent discretionary power to vacate the subject QDRO. The Court understands that the parties' divorce was contentious and the parties still appear to harbor some ill-will over a decade later, but nonetheless allegations that Defendant is lying or made a mistake he is trying to blame Plaintiff for is simply 1) unsupported in the record, and 2) extrinsic evidence not to be considered given the unambiguous language of the martial separation agreement.
As such, Defendant's motion is GRANTED, the QDRO signed by Supreme Court [*4](Bradley, J.) on February 25, 2003 and entered on March 4, 2003 is vacated and rendered a nullity, and Defendant is ordered to provide an amended QDRO on notice to Plaintiff within 35 days of service of notice of entry of this decision and order.
To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.
This constitutes the Decision and Order of the Court.
Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.
IT IS SO ORDERED.
DATED: September 10, 2018
Catskill, New York
E N T E R :
_______________________________
HON. LISA M. FISHER
SUPREME COURT JUSTICE
Papers Considered:
1) Notice of post-judgment motion, dated February 19, 2018; affidavit of defendant, dated February 21, 2018; attorney affirmation in support, of Carol K. Morgan, Esq., with annexed exhibits, dated February 20, 2018;
2) Affidavit in opposition, of Plaintiff, dated March 5, 2018; attorney affirmation, of Joseph M. Ingarra, Esq., with annexed exhibits, dated March 1, 2018;
3) Attorney affirmation in further support, of Carol K. Morgan, Esq., dated March 13, 2018; affidavit in further support of motion, of Defendant, dated May 18, 2018; and
4) Correspondence, oral argument, and the Court's notes from oral argument.
FootnotesFootnote 1: It appears that Ms. D'Agostino may have been representing Defendant before ceding representation to his present counsel.
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