Donna Hurst Hepburn, respondent, v. David Hepburn, appellant.

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

Donna Hurst Hepburn, respondent, v. David Hepburn, appellant.

2010-04033 (Index No. 21173/06)

Decided: November 23, 2010

MARK C. DILLON, J.P. DANIEL D. ANGIOLILLO L. PRISCILLA HALL SHERI S. ROMAN, JJ. Feldman and Feldman, Uniondale, N.Y. (Steven A. Feldman and Arza Feldman of counsel), for appellant. Law Office of Alan Barr, P.C., Patchogue, N.Y. (Naomi Strizhevshy of counsel), for respondent.

Argued-October 19, 2010


In a matrimonial action in which the parties were divorced by judgment dated September 16, 2008, the defendant appeals from so much of an order of the Supreme Court, Suffolk County (MacKenzie, J.), dated April 13, 2010, as denied his motion to permanently stay the entry of a Qualified Domestic Relations Order dated July 16, 2009, which equitably distributed certain of his pension benefits between the parties.

ORDERED that the order dated April 13, 2010, is affirmed insofar as appealed from, with costs.

“A matrimonial settlement is a contract subject to principles of contract interpretation [and] a court should interpret the contract in accordance with its plain and ordinary meaning” (Edwards v. Poulmentis, 307 A.D.2d 1051, 1052;  see Sieratzki v. Sieratzki, 8 AD3d 552, 554;  DelDuca v. DelDuca, 304 A.D.2d 610, 610-611;  Kammerer v. Kammerer, 278 A.D.2d 282, 282).   “ ‘[W]hen interpreting a contract, the court should arrive at a construction which will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized’ ” (Herzfeld v. Herzfeld, 50 AD3d 851, 851, quoting Fetner v. Fetner, 293 A.D.2d 645, 645-646).

Applying these principles to the matter at bar, the Supreme Court properly interpreted the parties' stipulation of settlement to provide for the equitable distribution of all of the defendant's retirement accounts and pension benefits (see Pagliaro v. Pagliaro, 31 AD3d 728, 730;  Kammerer v. Kammerer, 278 A.D.2d at 283;  see also DeLuca v. DeLuca, 97 N.Y.2d 139, 146;  Olivo v. Olivo, 82 N.Y.2d 202, 207).   Contrary to the defendant's contentions, it cannot be said that the plaintiff effectively waived her right to equitably share in the pension benefits the defendant received from his employer, to the extent that the benefits from that pension constituted marital property (compare Kammerer v. Kammerer, 278 A.D.2d at 282-283 with Graef v Retirement Income Plan for Employees of Albemarle Corp., 166 F3d 332;  see Silber v. Silber, 99 N.Y.2d 395, 404, cert denied 540 U.S. 817;  March v. March, 233 A.D.2d 371, 372).



Matthew G. Kiernan

Clerk of the Court

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