Charles Tamburello, appellant, v. Regina Tamburello, respondent.

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Supreme Court, Appellate Division, Second Department, New York.

Charles Tamburello, appellant, v. Regina Tamburello, respondent.

2011–11333 (Index No. 31494/09)

Decided: January 22, 2014

WILLIAM F. MASTRO, J.P. CHERYL E. CHAMBERS PLUMMER E. LOTT ROBERT J. MILLER, JJ. Langione, Catterson & LoFrumento, LLP, Garden City, N.Y. (Jeffrey L. Catterson of counsel), for appellant. Eric Dubinsky, Westbury, N.Y., for respondent.

Argued—December 5, 2013

DECISION & ORDER

In a matrimonial action in which the parties were divorced by judgment of divorce entered December 22, 2010, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (MacKenzie, J.), dated September 19, 2011, as denied those branches of his motion which were to enforce a stipulation of settlement dated July 26, 2010, which was incorporated but not merged in the judgment of divorce, to the extent of compelling the defendant to file joint income tax returns with the plaintiff for the tax year 2008 and compelling the defendant to turn over certain items of jewelry, and for an award of an attorney's fee and related expenses.

ORDERED that the order is affirmed insofar as appealed from, with costs.

“ ‘A stipulation of settlement which is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation’ ” (Ackermann v. Ackermann, 82 AD3d 1020, 1020, quoting Rosenberger v. Rosenberger, 63 AD3d 898, 899;  see Matter of Meccico v. Meccico, 76 N.Y.2d 822, 823–824;  Matter of Korosh v. Korosh, 99 AD3d 909, 910;  Ayers v. Ayers, 92 AD3d 623, 624).  “ ‘Where such an agreement is clear and unambiguous on its face, the intent of the parties must be gleaned from the four corners of the instrument, and not from extrinsic evidence’ ” (Ackermann v. Ackermann, 82 AD3d at 1021, quoting Rosenberger v. Rosenberger, 63 AD3d at 899;  see Matter of Meccico v. Meccico, 76 N.Y.2d at 824).  “A court may not write into a contract conditions the parties did not insert or, under the guise of construction, add or excise terms, and it may not construe the language in such a way as would distort the apparent meaning” (Ayers v. Ayers, 92 AD3d at 624;  see Slatt v. Slatt, 64 N.Y.2d 966, 967;  Cohen–Davidson v. Davidson, 291 A.D.2d 474, 475;  Matter of Scalabrini v. Scalabrini, 242 A.D.2d 725, 726).  “Moreover, a court cannot reform an agreement to conform to what it thinks is proper, if the parties have not assented to such a reformation” (Cohen–Davidson v. Davidson, 291 A.D.2d at 475;  see Cappello v. Cappello, 286 A.D.2d 360;  Tinter v. Tinter, 96 A.D.2d 556, 557;  Leffler v. Leffler, 50 A.D.2d 93, 95, affd 40 N.Y.2d 1036).

Applying these principles here, the parties' stipulation of settlement, which was incorporated but not merged in the judgment of divorce, did not obligate the parties to file joint income tax returns for the year 2008.   Indeed, there is no language in the stipulation which supports the plaintiff's contention that the defendant was required to file joint tax returns for the year 2008.   Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion which was to compel the defendant to file joint income tax returns with the plaintiff for the year 2008.

Contrary to the plaintiff's contention, the Supreme Court properly denied, as premature, that branch of his motion which was to compel the defendant to turn over certain items of jewelry, as the parties had yet to determine the retail value of those items so that the jewelry could be equally divided between the parties in accordance with the stipulation of settlement.

There is no merit to the plaintiff's contention regarding the Supreme Court's denial of that branch of his motion which was for an award of an attorney's fee and related expenses.

MASTRO, J.P., CHAMBERS, LOTT and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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