Irene Coulon, respondent, v. Howard R. Coulon, Jr., appellant. (2011)

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

Irene Coulon, respondent, v. Howard R. Coulon, Jr., appellant.

2010-04540 (Index No. 3481 /91)

Decided: March 15, 2011

REINALDO E. RIVERA, J.P. MARK C. DILLON L. PRISCILLA HALL SHERI S. ROMAN, JJ.

Larkin, Axelrod, Ingrassia & Tetenbaum, LLP, Newburgh, N.Y. (William J. Larkin III of counsel), for appellant. Alysia R. Baker, Goshen, N.Y., for respondent. Here, the parties' 1992 stipulation of settlement, which was incorporated but not merged in their judgment of divorce, provides for the plaintiff to receive a share of the defendant's pension in accordance with Majauskas v Majauskas (61 N.Y.2d 481). However, “pension benefits and death benefits are two distinct matters” (Kazel v Kazel, 3 NY3d 331, 334), and a stipulation which is silent as to death benefits cannot be read to include an intent to include such benefits (id. at 335; see McCoy v Feinman, 99 N.Y.2d at 303). Since the parties' stipulation contains no provision entitling the plaintiff to be designated as a surviving spouse under the pre-retirement and post-retirement survivor annuity provisions of the defendant's pension plan and to receive a share of such benefits in the event of his death, it was error for the Supreme Court to include such a provision in the QDRO (see McCoy v Feinman, 99 N.Y.2d at 304; Page v Page, 31 AD3d 1172, 1173; Hoke v Hoke, 27 AD3d 1055, 1056; Moran v Moran, 289 A.D.2d 544, 545; Von Buren v Von Buren, 252 A.D.2d at 950-951; De Gaust v De Gaust, 237 A.D.2d at 863). Accordingly, the QDRO must be reversed insofar as appealed from, and the matter remitted to the Supreme Court, Orange County, for the entry of an amended QDRO.

Submitted-February 24, 2011

DECISION & ORDER

In a matrimonial action in which the parties were divorced by judgment entered June 9, 1992, the defendant appeals, as limited by his brief, from so much of a Qualified Domestic Relations Order of the Supreme Court, Orange County (Ritter, J.), entered March 18, 2010, as designated the plaintiff as a surviving spouse under the pre-retirement and post-retirement survivor annuity provisions of his pension plan, and directed that she receive a share of such benefits in the event of his death.

ORDERED that on the Court's own motion, the appellant's notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c] ); and it is further,

ORDERED that the Qualified Domestic Relations Order is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Orange County, for the entry of an amended Qualified Domestic Relations Order in accordance herewith.

A Qualified Domestic Relations Order (hereinafter QDRO) entered pursuant to a stipulation of settlement “can convey only those rights to which the parties stipulated as a basis for the judgment” (McCoy v. Feinman, 99 N.Y.2d 295, 304). Thus, a court cannot issue a QDRO more expansive or “encompassing rights not provided in the underlying stipulation” (id.; see Von Buren v. Von Buren, 252 A.D.2d 950, 950-951; De Gaust v. De Gaust, 237 A.D.2d 862, 863).

RIVERA, J.P., DILLON, HALL and ROMAN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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