In an action for divorce, the parties entered into a Stipulation of Settlement wherein they agreed to divide the defendant’s pension. The defendant’s entire career with the NYPD occurred during the marriage, but his pension included a portion for service and a portion for accident disability. The stipulation did not distinguish between the service pension and the accident disability pension, but provided that the defendant be directed to pay to the plaintiff an “estimated amount” of $1,100 monthly until the plaintiff’s share of the marital portion of the defendant’s pension was determined.
The lower court signed a qualified domestic relations order (“QDRO”), and, upon its service, the New York City Police Pension Fund informed the defendant that it would start paying the plaintiff $3,139.70 monthly, representing 50% of the total pension. The defendant moved to vacate the QDRO and for the issuance of a new QDRO clarifying that the plaintiff was to receive 50% of only his service pension, not of the entire pension. The lower court granted the defendant’s motion.
The parties’ stipulation was not clear and unambiguous, rather, it was susceptible to more than one reasonable interpretation. While the stipulation did not distinguish between the service pension and the accident disability pension, the language, which included references to the “marital portion” of the pension and to the defendant’s “credited service,” was ambiguous so as to warrant consideration of extrinsic evidence to determine the parties’ intent (cf. Rosenberger v. Rosenberger, 63 AD3d 898). The outside evidence, which demonstrated that the “estimated amount” to be paid to the plaintiff was substantially similar to 50% of the defendant’s service pension alone, showed that the intent when entering into the stipulation was to differentiate between the service portion of the pension, which was marital property, and the accident disability portion, which was the defendant’s separate property. The lower court properly granted the defendant’s motion to vacate the QDRO and for the issuance of a new QDRO reflecting the parties’ intent (see Kraus v. Kraus, 131 AD3d at 100-101).
Lavery v. O’Sullivan, 2021-02248
The plaintiff, who is a dual citizen of the United States and Ireland, and the defendant, who is a citizen of Ireland, married in 2015, and lived and worked in New York. They have one child. Both parties have traveled frequently to visit their family in Ireland. The plaintiff commenced this action seeking a judgment of divorce, sole legal and physical custody, and permission to relocate with the child to Ireland.
The determination permitting the plaintiff to relocate with the child to Ireland is supported by a sound and substantial basis in the record. The lower court credited the plaintiff’s testimony that she was the primary caregiver, that the defendant had engaged in alcohol abuse and subjected the plaintiff to instances of domestic violence and verbal abuse, and that if they had relocated, the child’s quality of life would improve. In Ireland, the plaintiff and child could live cost free in a guest house on the maternal grandparents’ property, the cost of living there would be less than it is in New York, where the parties were struggling financially, and the plaintiff was offered a job as a clerical administrator in a nursing home in Ireland. The plaintiff would also have her extended family nearby in Ireland to provide her support, as well as the defendant’s family. The court properly concluded that while the relocation would disrupt the defendant’s regular contact with his child, meaningful extended vacations could compensate for that loss (see Matter of Yu Chao Tan v. Hong Shan Kuang, 136 AD3d 933, 935; Matter of Ceballos v. Leon, 134 AD3d 931; Matter of Tracy A.G. v. Undine J., 105 AD3d 1046; Tsui v. Tsui, 99 AD3d 793; Matter of Harrsch v. Jesser, 74 AD3d 811).