The following papers read on this motion:

Upon the foregoing papers, the Plaintiff moves by Order to Show Cause (Mot. Seq. 01) seeking an Order:

1. Directing a stay of the proposed, Amended Qualified Domestic Relations Order which was filed with this Court by the attorney for Defendant,

2. Directing that the Defendant is not permitted to amend the Qualified Domestic [*2]Relations Order dated August 10, 2010;

3. Directing the Defendant to pay an award of counsel fees in the sum of $10,000.00 to the Plaintiff's counsel within thirty days of this Court's Order; and

4. For such other and further relief as this Court may deem just and proper.

The Defendant cross moves by Notice of Cross Motion (Mot. Seq. 02) seeking an Order:

A. Pursuant to CPLR § 5015, vacating the Domestic Relations Order granted on August 10, 2010 and entered in the Office of the Nassau County Clerk on August 13, 2010; and

B. Enforcing the terms of the parties' Marital Separation and Property Settlement Agreement, the terms of which are incorporated into the Judgment of Divorce dated August 10, 2010, by vacating the Domestic Relations Order dated August 10, 2010 and executing and directing entry of Defendant's proposed Amended Domestic Relations Order; and

C. Pursuant to DRL § 238 and 22 NYCRR § 130-1.1, awarding Defendant and directing Plaintiff to pay no less than $6,500.00 in the form of attorney's fees within 30 days of the date of the Court's decision as and for costs and sanctions associated with this motion; and

D. Granting Defendant such other, further and different relief as to the Court may deem just and proper.

The parties were married on March 2, 1990. There are three children born of the marriage, all of whom have been emancipated by age. The Plaintiff commenced an action for divorce in or about 2010. All ancillary issues were resolved by a Marital Separation and Property Settlement Agreement dated April 12, 2010 (the "Agreement").

Pursuant to Section 8 of the Agreement, the marital portion of the Defendant's Deferred Compensation Plan with the City of New York (the "DCP") and his pension with the New York City Employee's Retirement System (the "Pension") were to be distributed between the parties by a Qualified Domestic Relations Order ("QDRO").

The parties were divorced by a Judgment of Divorce dated August 10, 2010 (Gartenstein, JHO) (the "Judgment"). The Judgment was entered with the Office of the Nassau County Clerk on August 13, 2020. The Judgment incorporated, but did not merge with, the Agreement. A QDRO dated August 10, 2010 (Gartenstein, JHO), which was signed simultaneously with the Judgment, contains, inter alia, the following ordered paragraphs:

ORDERED, the Participant is directed to designate the Alternate Payee as beneficiary of the Retirement System pension plan, so that in the event the Participant dies prior to the retirement, the Alternate Payee shall receive her pro-rata share of any survivor benefits calculated pursuant to the formula herein above set forth, and it is further

ORDERED, the Participant is directed to elect at the time of retirement, assuming the Alternate Payee is then living, to receive the retirement allowance pursuant to the terms of the option that shall provide the Alternate Payee upon the Participant's death, with a monthly retirement allowance payable pursuant to such option

By a letter dated April 19, 2011, the New York City Employees' Retirement System ("NYSCERS") advised the Defendant that they were "in receipt of the Domestic Relations Order (DRO) you submitted" and that the "DRO is unacceptable in its current format." The letter further explained that the "numerator", which is the number of months of retirement credit earned during the marriage, was incorrect, and that the QDRO did not clearly identify one of five "retirement option selection[s]" available to the Defendant.

On August 5, 2024, the Defendant electronically filed an Amended Domestic Relations Order with Notice of Settlement. The proposed Order is identical to the QDRO dated August 10, 2010 (Gartenstein, JHO), except for the deletion of the ordered paragraph directing the Defendant to select a survivorship option.

The Plaintiff filed the instant Order to Show Cause (Mot. Seq. 02) on December 11, 2024, and the Defendant cross moved by Notice of Cross Motion (Mot. Seq. 03) on December 16, 2024. Motion Seqs. 02 and 03 were fully submitted on January 23, 2025.

The Plaintiff seeks an Order staying execution of the Defendant's proposed Amended QDRO dated August 5, 2024 (the "Amended QDRO"). She further seeks an Order enjoining the Defendant from attempting to amend the QDRO dated August 10, 2010 (Gartenstein, JHO) (the "2010 QDRO").

The Plaintiff argues, in relevant part, that in negotiating the terms of the Agreement, the parties agreed that the Defendant would select a pension payout option which would permit the Plaintiff to continue receiving her share of the Defendant's pension in the event he predeceased her. She claims that the Defendant's medical maladies and the inherent safety risks associated with his work made his pension survivor option a focus of the parties' deliberations, and that she traded valuable separate property credits to secure her survivorship rights. The Plaintiff further claims that the Defendant was aware of the 2010 QDRO before it was signed, served a signed copy upon his pension plan administrator, and that he failed to inform her that the 2010 QDRO was rejected by a letter from NYCERS dated April 19, 2011.

The Defendant claims that the parties never agreed that he would select a pension option which provided survivor benefits for the Plaintiff, and that no such requirement is set forth in the Agreement. He argues that forcing him to select a pension payment option with survivor benefits now would reduce his pension income and unjustly enrich the Plaintiff. The Defendant claims that he did not become aware of the 2010 QDRO until he began preparing for his retirement, shortly before the Amended QDRO was filed. He further claims that he never served a copy of the 2010 QDRO upon his pension plan administrator, and that he never received the letter from NYCERS dated April 19, 2011.

"Stipulations of settlement are favored by the courts and not lightly cast aside. Sontag v Sontag, 114 AD2d 892 (2nd Dept. 1985) quoting Hallock v State of New York, 64 NY2d 224 (1984). Settlement agreements in matrimonial actions are enforceable contracts between the parties and are subject to principles of contract construction and interpretation. Petrovovich v Obradovic, 40 AD3d 1063 (2nd Dept. 2007).

Parties are free to enter into agreements that 'not only bind them, but which the courts are bound to enforce' (Etzion v Etzion, 84 AD3d 1015 [2nd Dept. 2011] citing Greve v Aetna Live-Stock Ins. Co., 30 NYS 668, 670 [1894]). "Where an agreement is clear and unambiguous on its face, the parties' intent must be construed within the four corners of the agreement and not from [*3]extrinsic evidence." Khorshad v Khorshad, 121 AD3d 857 (2nd Dept. 2014).

A Qualified Domestic Relations Order obtained pursuant to a settlement agreement "can convey only those rights to which the parties stipulated as a basis for the judgment." (F.L. v R.L., 30 Misc 3d 1204[A], 2010 NY Slip Op 52282[U] [Sup Ct, Westchester County 2010] quoting McCoy v. Feinman, 99 NY2d 295, 304, 785 N.E.2d 714, 755 N.Y.S.2d 693 [2002]). Indeed, a judgment of divorce awarding interest in a party's pension plan does "not automatically include death benefits." (F.L. v R.L., supra, quoting Kazel v. Kazel, 3 NY3d 331 [2004]). If parties intend to distribute death benefits, they must explicitly state the same in their written agreement, as "pension benefits and death benefits are two distinct matters." (Id). "[I]n order for a non-employee spouse to be entitled to a share of the other spouse's death benefits, the parties must make specific provision for such entitlement in their marital agreement." (Pagliaro v. Pagliaro, 31 AD3d 728, 730, 821 N.Y.S.2d 602 [2d Dept. 2006]).

Where a stipulation of settlement does not explicitly distribute pension survivorship benefits, a domestic relations order issued pursuant to the stipulation which provides for post-divorce death benefits should be vacated or amended to conform with the underlying stipulation. (F.L. v. R.L., supra). Domestic relations orders are merely procedural mechanisms to effectuate distribution of assets to their rightful owners. (Kraus v. Kraus, 131 AD3d 94 [2d Dept. 2015]). Thus, where a QDRO fails to distribute property pursuant to an agreement, an amended QDRO may be submitted to effectuate the parties' agreement. (See Id.)

Here, the Agreement is silent with respect to pension survivor benefits. Though the Plaintiff argues otherwise, Article 19, titled "Social Security and Other Benefits" does not pertain thereto. Distribution of the Defendant's pension is instead governed by Article 8 of the Agreement, titled "Retirement Benefits", which provides:

The parties represent that all retirement and pension types of accounts (the "Retirement Accounts"), including without limitation, all profit sharing, pension, IRA and 401(k) plans, have been disclosed and are as follows: (i) The 457 plan administered by the City of New York Deferred Compensation Plan. (ii) The pension plan administered by the New York City Employees' Retirement System.

The parties hereby agree that the Husband shall file Qualified Domestic Relations Orders with respect to the above-listed retirement accounts, which shall provide for each of the plan administrators to establish a separate account in the amount of fifty percent (50%) of the Husband's contributions to the applicable plan from March 25, 1989 to the date hereof, together with earnings and/or losses, as determined by the applicable plan, from March 25, 1989 until such time as the account is established for the Wife, but without deductions for loan balances, which shall be the sole obligation of the Husband with such loan balances remaining solely with the Husband's account, and such amount shall be transferred to an account in the name of the Wife from the Husband's account under the applicable plan

The Husband and the Wife agree that if any payments are specified in this section, said payments will not be taxable to the receiving party, as the payment will be received as a division of marital property of the parties.

Each party pledges to cooperate with the other to secure approval of or execution of any documents that are necessary to transfer or divide all retirement, profit sharing, pension, IRA or 40l(k) funds to the payee from the payor's accounts, including without limitation, the filing of Qualified Domestic Relations Orders.

The Plaintiff fails to provide proof that she served a copy of the 2010 QDRO upon the Defendant with notice of settlement before it was signed, or with notice of entry thereafter. Her allegations that the Defendant had knowledge of the 2010 QDRO, that he served the same upon his pension plan, and that he had knowledge of the letter from NYCERS dated April 19, 2011, are also unsupported.

In view of the circumstances discussed above, and considering the controlling caselaw discussed herein, awarding the Plaintiff post-retirement survivor pension death benefits would constitute improper reformation of the Agreement, to which the parties remain bound, and this Court is bound to enforce. " Khorshad v Khorshad, supra

Accordingly, all branches of the Plaintiff's application (Mot. Seq. 02) are DENIED, and the branch of the Defendant's application (Mot. Seq. 03) seeking an Order vacating the 2010 QDRO is GRANTED.

The Defendant is entitled to submit an amended QDRO containing terms consistent with the Agreement. However, the proposed Amended QDRO filed by the Defendant on August 5, 2024, does not address the "numerator" error raised in the letter from NYCERS dated April 19, 2011.

Accordingly, the branch of the Defendant's application requesting that the Court execute the proposed Amended QDRO filed on August 5, 2024, is DENIED. The Defendant may correct the numerator error and may re-file the proposed Amended QDRO with the Court, provided the Plaintiff is properly noticed.

Both parties seek orders directing the other party to pay the legal fees they incurred prosecuting and defending the instant applications. Responsibility for legal fees is governed by Article 13 of the Agreement, which provides:

The parties agree that any costs, including but not limited to counsel fees, court costs, investigation fees, and travel expense, incurred by a party in the successful enforcement of any of the agreements, covenants, or provisions of this Agreement, whether through litigation or other action to compel compliance herewith, shall be borne by the defaulting party. Any such costs incurred by a party in the successful defense to any action for enforcement of any of the agreements, covenants, or provisions of this Agreement shall be borne by the party seeking to enforce compliance.

Here, neither party's application was entirely successful. The branches of the Plaintiff's application seeking orders enforcing the 2010 QDRO and enjoining the Defendant from attempting to modify same were denied as inconsistent with the parties' Agreement, and the branch of the Defendant's application requesting this Court to execute the proposed Amended QDRO was denied, as the Proposed QDRO filed by the Defendant did not correct the "numerator" error raised in the letter from NYCERS dated April 19, 2011, which advised that the QDRO was "unacceptable in its current format."

Accordingly, the branches of both parties' applications seeking counsel fees are DENIED.

Any relief sought and not addressed herein is DENIED.

This constitutes the Decision and Order of this Court.