HANNIGAN v. HANNIGAN (2008)

In an action for a divorce and ancillary relief, the defendant appeals from so much of a judgment of the Supreme Court, Westchester County (Jamieson, J.), dated December 29, 2006, as awarded the plaintiff 50% of the marital portion of his New York State Local Retirement System Pension and 50% of his New York State Deferred Compensation Plan.

ORDERED that the judgment is reversed insofar as appealed from, on the law, with costs.

 On appeal, the defendant contends that two decretal paragraphs contained in the judgment of divorce were inserted by the Supreme Court sua sponte and were not the subject of the final oral stipulation of settlement made between the parties in open court.   The disputed paragraphs award the plaintiff 50% of the marital portion of the defendant's New York State Local Retirement System Pension and 50% of his New York State Deferred Compensation Plan, calculated pursuant to the Majauskas formula (see Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699, 463 N.E.2d 15).

 A stipulation is an independent contract which is subject to the principles of contract law (see Simmons v. Simmons, 305 A.D.2d 661, 759 N.Y.S.2d 688;  Dreiss v. Dreiss, 258 A.D.2d 499, 684 N.Y.S.2d 627;  McWade v. McWade, 253 A.D.2d 798, 799, 677 N.Y.S.2d 596).   A court should construe a stipulation made in open court in accordance with the intent of the parties and the purpose of the stipulation by examining the record as a whole (see McWade v. McWade, 253 A.D.2d 798, 799, 677 N.Y.S.2d 596).   A court should not, under the guise of interpretation, make a new contract for the parties (see Sklerov v. Sklerov, 231 A.D.2d 622, 647 N.Y.S.2d 532).   Moreover, open court stipulations of settlement are judicially favored and should not lightly be set aside (see Maury v. Maury, 7 A.D.3d 585, 776 N.Y.S.2d 489;  Cooper v. Hempstead Gen. Hosp., 2 A.D.3d 566, 567, 768 N.Y.S.2d 371).  “Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation” (Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178;  see DeGregorio v. Bender, 4 A.D.3d 385, 386, 771 N.Y.S.2d 388).   To “vacate [a] stipulation of settlement on the ground of mutual mistake, [a party must] demonstrate that the mistake existed at the time the stipulation was entered into and that it was so substantial that the stipulation failed to represent a true meeting of the parties' minds” (Gro-Wit Capital, Ltd. v. Obigor, LLC, 33 A.D.3d 859, 860, 824 N.Y.S.2d 314;  see Maury v. Maury, 7 A.D.3d 585, 586, 776 N.Y.S.2d 489;  Mahon v. New York City Health & Hosps. Corp., 303 A.D.2d 725, 756 N.Y.S.2d 875).

Here, the language of the parties' stipulation of settlement is not ambiguous.   The stipulation, which was made in open court with the representation of counsel, did not provide for the distribution of the defendant's pension and deferred compensation plans.   The terms of the stipulation were primarily dictated by the plaintiff's own counsel and therefore reflect the plaintiff's intent at that time (see Mock v. Chamberlain, 224 A.D.2d 499, 638 N.Y.S.2d 167).   The plaintiff's intent that the stipulated settlement did not include a division of the defendant's deferred compensation and pension is further evidenced by the plaintiff's counsel's representation that there was “[n]othing else” to place on the record and by the voir dire that was then conducted of the parties (see Furey v. Furey, 230 A.D.2d 708, 709, 646 N.Y.S.2d 358).   The record therefore fails to contain the “high level of proof” of a mutual mistake that is required to overcome the plain and unambiguous language of the parties' stipulation (see Phillips v. Phillips, 300 A.D.2d 642, 644, 754 N.Y.S.2d 297;  Dykstra v. Dykstra, 211 A.D.2d 745, 746, 621 N.Y.S.2d 693).   Accordingly, the Supreme Court erred in unilaterally inserting the disputed provisions (see Karmin v. Karmin, 19 A.D.3d 458, 459, 796 N.Y.S.2d 703).

 Contrary to the plaintiff's contention, the New York State Retirement System does not fall under ERISA (see 29 USC § 1003[b][1] ), and therefore there was no written waiver requirement with respect to the defendant's pension.

The plaintiff's remaining contentions are without merit.