Econopouly v. Econopouly

• Decision Date: 27 December 2018
• Docket Number: 526629
• Parties: Theresa A. ECONOPOULY, Now Known as Theresa A. Fallon, Respondent, v. Thomas W. ECONOPOULY, Appellant.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 1378

91 N.Y.S.3d 564

Theresa A. ECONOPOULY, Now Known as Theresa A. Fallon, Respondent,

v.Thomas W. ECONOPOULY, Appellant.

526629

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

Calendar Date: November 14, 2018

Decided and Entered: December 27, 2018

Pope, Schrader & Pope, LLP, Binghamton (Kurt D. Schrader of counsel), for appellant.

Hinman, Howard & Kattell, LLP, Binghamton (Michael S. Sinicki of counsel), for respondent.

Before: Devine, J.P., Mulvey, Aarons, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Devine, J.P.

The parties were divorced pursuant to a 1992 judgment that neither incorporated nor merged their in-court stipulation of settlement. The stipulation included a provision that plaintiff would be entitled to half "of the present value of [defendant's] pension" and contemplated that the division would be accomplished by a qualified domestic relations order (hereinafter QDRO) prepared by defendant. In 2015, defendant submitted a corrected court order acceptable for processing (hereinafter COAP), an order used in the context of federal employee pensions that "is similar in effect to a" QDRO ( DeEttore v. DeEttore , 100 A.D.3d 679, 679, 953 N.Y.S.2d 862 [2012] ). Supreme Court executed the COAP, but plaintiff then objected that its terms did not comport with the parties' stipulation and successfully moved to vacate it. Plaintiff then submitted a new COAP that did comport with her understanding of the parties' stipulation, the order was executed by Supreme Court, and defendant appeals from it.¹

Initially, the basic period to take an appeal or move for leave to appeal is 30 days, which generally begins to run "after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry" ( CPLR 5513[a] ; see CPLR 5513[b] ). According to plaintiff, that service occurred in May 2017 when defendant's counsel was copied on correspondence that enclosed the appealed-from order. The record contains no affidavit of service or other proof of office mailing procedures that would give rise to a presumption of mailing, however, and counsel for defendant represents that he has no record of receiving a copy of the order at that time (see New York & Presbyt. Hosp. v. Allstate Ins. Co. , 29 A.D.3d 547, 547–548, 814 N.Y.S.2d 687 [2006] ; Glen Travel Plaza v. Anderson Equip. Corp. , 122 A.D.2d 327, 328, 504 N.Y.S.2d 298 [1986] ). Inasmuch as plaintiff failed to establish that the time in which to take an appeal began to run in May 2017, the present appeal, taken the day defendant entered the order and gave notice of entry in August 2017, is timely (see Coonradt v. Averill Park Cent. School Dist. , 73 A.D.2d 747, 747, 422 N.Y.S.2d 544 [1979] ).

Turning to the merits, there is no challenge to the validity of the unmerged stipulation of settlement, which constitutes an independent contract (see Merl v. Merl , 67 N.Y.2d 359, 362, 502 N.Y.S.2d 712, 493 N.E.2d 936 [1986] ). The stipulation is therefore "construed according to the rules of contract interpretation" and, "if not ambiguous, [it] must be construed according to [its] plain language" ( Matter of Banos v. Rhea , 25 N.Y.3d 266, 276, 11 N.Y.S.3d 515, 33 N.E.3d 471 [2015] ; see McCoy v. Feinman , 99 N.Y.2d 295, 302, 755 N.Y.S.2d 693, 785 N.E.2d 714 [2002] ; Fulginiti v. Fulginiti , 127 A.D.3d 1382, 1384, 4 N.Y.S.3d 780 [2015] ). In that regard, the stipulation provided that 50% "of the present value of [defendant's] pension" would be granted to plaintiff. Further discussion on that point ensued, and Supreme Court (Rose, J.) suggested that the portion of the pension to be divided was that acquired between "the date of the marriage and ... the commencement of the [divorce] action" (see Majauskas v. Majauskas , 61 N.Y.2d 481, 491, 474 N.Y.S.2d 699, 463 N.E.2d 15 [1984] ). Defendant's counsel clarified, without dispute from plaintiff, that the amount to be distributed was measured "with regard to the duration of the marriage and the total time of the pension plan" in a "conventional" QDRO. Defendant then expressed some confusion as to plaintiff being awarded a share of his pension based upon "the period of when [plaintiff and defendant] were married and what income [defendant] had up to being married, and the future income" but, after discussing that point with counsel, confirmed that he understood and agreed to the terms of the stipulation. The foregoing reflects an unambiguous agreement by the parties that plaintiff would receive 50% of the marital portion of defendant's pension in accordance with the Majauskas formula. Pursuant to this agreement, plaintiff is entitled to receive that portion of 50% of each monthly pension benefit that the number of months the parties were married bears to the number of months of defendant's service in the plan (see id. at 487, 474 N.Y.S.2d 699, 463 N.E.2d 15 ). As a result, Supreme Court properly replaced the prior COAP, which did not apply that formula, with one that did (see Mandwelle v. Mandwelle , 155 A.D.3d 1475, 1475–1476, 66 N.Y.S.3d 56 [2017] ).

Defendant does not appear to have preserved his remaining contention that the value of his federal pension should be reduced to take his ineligibility for Social Security benefits into account (see e.g. ...