REBER v. REBER (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is granted in part, and plaintiff is directed to transfer to defendant the sum of $ 32,828.35.

Memorandum:  The parties divorced in 2013, and a stipulation of settlement that was incorporated, but not merged, into their judgment of divorce provided, as relevant to this appeal, that plaintiff was entitled to approximately $ 71,000 from defendant's 401(k) account, to be transferred as soon as possible after the signing of the judgment of divorce.  The parties subsequently executed a qualified domestic relations order (QDRO), which provided that plaintiff would receive $ 71,167 from defendant's 401(k) account.  When defendant's employer fulfilled the QDRO, however, it transferred to plaintiff a total of $ 103,995.35, which was comprised of the amount set forth in the QDRO, i.e., $ 71,167, plus the gains that accrued on that amount after the date the divorce action was commenced, i.e., $ 32,828.35.  Thereafter, defendant moved for, inter alia, an order directing plaintiff to transfer to him $ 32,828.35.  Supreme Court denied the motion, and we now reverse the order insofar as appealed from and direct plaintiff to return that amount to defendant.

“A QDRO obtained pursuant to a [stipulation of settlement] ‘can convey only those rights which the parties [agreed to] as a basis for the judgment’ ” (Duhamel v. Duhamel [appeal No. 2], 4 A.D.3d 739, 741, 772 N.Y.S.2d 437 [4th Dept. 2004] ).  Thus, “a court errs in granting a domestic relations order encompassing rights not provided in the underlying stipulation” (McCoy v. Feinman, 99 N.Y.2d 295, 304, 755 N.Y.S.2d 693, 785 N.E.2d 714 [2002];  see Santillo v. Santillo, 155 A.D.3d 1688, 1688, 64 N.Y.S.3d 840 [4th Dept. 2017] ).  A stipulation of settlement that is incorporated, but not merged, into the judgment of divorce “ ‘is a contract subject to the principles of contract construction and interpretation’ ” (Anderson v. Anderson, 120 A.D.3d 1559, 1560, 993 N.Y.S.2d 220 [4th Dept. 2014], lv denied 24 N.Y.3d 913, 2015 WL 144944 [2015];  see Walker v. Walker, 42 A.D.3d 928, 928, 840 N.Y.S.2d 260 [4th Dept. 2007], lv dismissed 9 N.Y.3d 947, 846 N.Y.S.2d 75, 877 N.E.2d 293 [2007] ).  If the stipulation of settlement is “ ‘complete, clear, and unambiguous on its face[, it] must be enforced according to the plain meaning of its terms’ ” (Anderson, 120 A.D.3d at 1560, 993 N.Y.S.2d 220).  Here, the stipulation of settlement clearly and unambiguously made no provision for plaintiff to receive gains or losses on the amount that the stipulation of settlement specified would be transferred to her.  Thus, plaintiff is not entitled to any gains on that amount that accrued after the divorce action commenced, and defendant is entitled to the return of the $ 32,828.35.  We therefore reverse the order insofar as appealed from, and grant that part of defendant's motion seeking an order directing plaintiff to transfer to him the sum of $ 32,828.35.