Decisions of Interest

Finding that the mother's motion failed even to allege any changed circumstance that the court could take notice of, the court concluded that no hearing on the issue was warranted, and it denied the mother's motion.

Stipulation Dictates Survivor Benefits

Because the wording of a divorced couple's stipulation of settlement referred to the lifetimes of both parties when discussing the wife's pension, she was properly ordered to choose a pension option that ensures lifetime benefits for her ex-husband. Dagliolo v. Dagliolo, 2012 N.Y. App. Div. LEXIS 452 (3d Dept. 1/26/12) (Mercure, Acting P.J., Peters, Rose and Lahtinen, J.J.).

The parties were divorced in February 2002. The judgment of divorce incorporated but did not merge a stipulation of settlement that directed distribution of the wife's pension. It said that the wife “shall opt to have said pension throughout the life of [husband] and [wife].” In 2010, the husband moved for entry of a proposed domestic relations order granting him survivor benefits in his ex-wife's pension. Supreme Court granted that motion, prompting the wife to appeal. She argued that the domestic relations order could not grant her ex-husband survivor benefits because the underlying stipulation did not provide him with such benefits.

The Appellate Division, Third Department, agreed that, where parties have executed a valid stipulation or agreement, a domestic relations order may convey only those rights and awards upon which the parties agreed. See McCoy v. Feinman, 99 NY2d 295 (2002); Smith v. Smith, 59 AD3d 905 (2009). However, it found that such agreement was made in the stipulation in the provision stating that the wife “shall opt to have said pension throughout the life of [husband] and [wife].” Stated the Third Department, “[A]s [husband's] interest in [wife's] pension is measured “throughout” his own life, and not just [wife's] life, the plain meaning of this term in the stipulation is that [wife] must choose a pension option that ensures lifetime benefits to [husband].”

Custody Provision Prevents Marriage, But Stays Put

A mother's request to have her children's custody arrangement altered was denied for lack of a showing of changed circumstances, even though continuation of a provision forbidding her fianc' to be left alone with the children effectively prevents the couple from marrying. Berger v. Berger, 202085-2006 (Sup. Ct., Nassau Cty. 12/2/11) (Maron, J.).

Prior to their divorce, the parties entered into a stipulation in January 2009 restraining the wife from permitting a certain level-I registered sex offender from being in the presence of the couple's children unless the wife and three other adults were also present. In the ensuing years, the wife became engaged to this third party. She therefore moved the court to lift the provision concerning her fianc', claiming that because the children have now become close to him, consider him a stable and welcome presence in their lives, and benefit from his financial support, it would be in their best interests to lift the restrictions on his interactions with the children. The children's father opposed the move, especially in light of the fact that all interested parties are part of a tight-knit orthodox Jewish community that continues to ostracize the mother's fianc' for his prior conviction for possession of child pornography. Thus, the father asserted, it would be contrary to the children's best interests were his ex-wife's fianc' to become their a step-father.

Finding that the mother's motion failed even to allege any changed circumstance that the court could take notice of, the court concluded that no hearing on the issue was warranted, and it denied the mother's motion.

Stipulation Dictates Survivor Benefits

Because the wording of a divorced couple's stipulation of settlement referred to the lifetimes of both parties when discussing the wife's pension, she was properly ordered to choose a pension option that ensures lifetime benefits for her ex-husband. Dagliolo v. Dagliolo , 2012 N.Y. App. Div. LEXIS 452 (3d Dept. 1/26/12) (Mercure, Acting P.J., Peters, Rose and Lahtinen, J.J.).

The parties were divorced in February 2002. The judgment of divorce incorporated but did not merge a stipulation of settlement that directed distribution of the wife's pension. It said that the wife “shall opt to have said pension throughout the life of [husband] and [wife].” In 2010, the husband moved for entry of a proposed domestic relations order granting him survivor benefits in his ex-wife's pension. Supreme Court granted that motion, prompting the wife to appeal. She argued that the domestic relations order could not grant her ex-husband survivor benefits because the underlying stipulation did not provide him with such benefits.

The Appellate Division, Third Department, agreed that, where parties have executed a valid stipulation or agreement, a domestic relations order may convey only those rights and awards upon which the parties agreed. See McCoy v. Feinman , 99 NY2d 295 (2002); Smith v. Smith , 59 AD3d 905 (2009). However, it found that such agreement was made in the stipulation in the provision stating that the wife “shall opt to have said pension throughout the life of [husband] and [wife].” Stated the Third Department, “[A]s [husband's] interest in [wife's] pension is measured “throughout” his own life, and not just [wife's] life, the plain meaning of this term in the stipulation is that [wife] must choose a pension option that ensures lifetime benefits to [husband].”