DUTTON v. DUTTON (1999)

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

Marjorie A. DUTTON, Plaintiff-Respondent, v. Thomas W. DUTTON, Defendant-Appellant. (Appeal No. 3.)

Decided: October 01, 1999

PRESENT: DENMAN, P.J., GREEN, HAYES, PIGOTT, JR., and SCUDDER, JJ.

Alfred J. Heilman, Rochester, for Defendant-Appellant. Anthony P. LaFay, for Plaintiff-Respondent.

Supreme Court erred in requiring defendant to continue paying maintenance to plaintiff despite his retirement from the Eastman Kodak Company (Kodak). The agreement of the parties, placed upon the record by plaintiff's attorney and incorporated into the judgment of divorce, clearly and unambiguously provides that maintenance would cease upon defendant's early retirement, at which time plaintiff would begin receiving a portion of defendant's monthly retirement benefits (see, Von Buren v. Von Buren, 252 A.D.2d 950, 675 N.Y.S.2d 739). At the time the parties entered into the agreement, defendant was 46 years old, had worked for Kodak for over 25 years and was nearing retirement eligibility. The fact that defendant might retire from Kodak within a few years of the divorce was contemplated by the parties, and the agreement provides that maintenance would cease upon the occurrence of that contingency.

Amended judgment unanimously reversed on the law without costs and complaint dismissed.

MEMORANDUM:

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