IN RE: Asilda M. DUBE (1999)

Appeal from an order of the Family Court of Saratoga County (James, J.), entered December 19, 1997, which granted petitioner's application, in a proceeding pursuant to Family Court Act article 4, to, inter alia, hold respondent in violation of a prior order of spousal support.

The draft of the parties' separation agreement, prepared by petitioner's counsel, provided that respondent would pay a specified amount of spousal support to petitioner until she remarried, with the amount increasing by a set percentage should his gross income exceed the stated sum.   To monitor his income, respondent was to provide petitioner with a copy of his corporate and personal income tax returns prior to April 15th of each year.   Before the agreement was signed on May 30, 1974, respondent, being duly represented by counsel, requested that all references to his “gross income” be substituted by the word “wages” and that only his wage statements, and not corporate and personal income tax returns, be provided each year.   Petitioner agreed.

The agreement, as so modified, was incorporated but not merged into their judgment of divorce entered on August 19, 1974.   On July 1, 1996, upon respondent's early retirement as a labor and contract negotiator for the New York State United Teachers, he ceased paying all support to petitioner, contending that he was no longer obligated because his pension income did not constitute “wages”.   Petitioner commenced this proceeding claiming a violation of the support order, prompting respondent's cross petition to have such order terminated.

At the hearing, petitioner testified that it was always her understanding that she would receive support until she remarried or died.   When respondent requested that the language of the separation agreement be changed from gross income to wages, she contended that she assented thereto upon respondent's representation that he sought to protect income from stock and certain bank accounts he expected to receive from a relative.   Respondent countered that he had, at all times, clearly intended that petitioner's support be based solely upon his salary compensation from the New York State United Teachers and not upon any other income that he might receive.   He testified that he now receives benefits from a pension plan to which he did not make a direct contribution and a 401K plan to which he did.

Upon this testimony and the provisions of the parties' separation agreement, the Hearing Examiner determined that respondent was required to continue to pay spousal support based upon his pension income but that his failure to pay did not constitute a willful violation.   After respondent's unsuccessful challenge to such determination, this appeal ensued.

 Upon our review, we find, as a matter of law, that the term “wages” in the agreement was ambiguous (see, Matter of Wallace v. 600 Partners Co., 86 N.Y.2d 543, 548, 634 N.Y.S.2d 669, 658 N.E.2d 715;  D'Angelo v. Blue Cross & Blue Shield of Cent. N.Y., 252 A.D.2d 886, 887, 676 N.Y.S.2d 315, 316) and, therefore, the use of parole evidence to ascertain the intention of the parties was proper (see, Bast Hatfield Inc. v. General Elec. Co., 229 A.D.2d 892, 894, 646 N.Y.S.2d 210).   In our efforts to ascertain such intention, we find no error in the Hearing Examiner's interpretation.   Whereas the term “wages” has been held to include retirement income under the Labor Law (see, Labor Law § 190[1];  § 198-c [2] ), the Court of Appeals recognized in Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699, 463 N.E.2d 15, and its progeny that whether or not the plan is contributory, pension income is a form of deferred wages (id., at 491, 474 N.Y.S.2d 699, 463 N.E.2d 15).   In light of the changes made by respondent in the document before signing, coupled with his expertise as a contract negotiator and labor specialist for the New York State United Teachers, we find that had he intended to clearly exclude pension income, he could have easily provided for such in the agreement.   As any ambiguity in a contract must be construed against the drafter which, as here relevant, is respondent (see, Guardian Life Ins. Co. of Am. v. Schaefer, 70 N.Y.2d 888, 890, 524 N.Y.S.2d 377, 519 N.E.2d 288), we agree that the term wages must be deemed to include pension income.   We can discern no interpretation of the remaining unambiguous provisions of the document which would support defendant's contention that his retirement, whether voluntary or involuntary, would trigger a termination of petitioner's support, and therefore decline to disturb the determination rendered.

Further finding a failure to demonstrate the requisite showing of extreme hardship to support the request for a modification or termination of spousal support (see, Haydock v. Haydock, 237 A.D.2d 748, 655 N.Y.S.2d 136), especially when one engages in voluntary early retirement (see, Matter of Di Novo v. Robinson, 250 A.D.2d 898, 672 N.Y.S.2d 492), we find that no hearing on the motion was required.   Finally, we reject the request for sanctions (see, 22 NYCRR 130-1.1[c] ) and affirm the order of Family Court.

ORDERED that the order is affirmed, without costs.

PETERS, J.

CARDONA, P.J., and SPAIN, CARPINELLO and GRAFFEO, JJ., concur.