                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 2, 2016                      521952
________________________________

SHERILYN F. VAN ORDEN,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

RICHARD E. VAN ORDEN,
                    Appellant.
________________________________


Calendar Date:   April 20, 2016

Before:   Lahtinen, J.P., McCarthy, Devine, Clark and Mulvey, JJ.

                             __________


      Bailey, Kelleher & Johnson, PC, Albany (John W. Kraigenow
of counsel), for appellant.

     Cynthia Feathers, Glens Falls, for respondent.

                             __________


McCarthy, J.

      Appeal from an order of the Supreme Court (Connolly, J.),
entered January 22, 2015 in Albany County, which, among other
things, denied defendant's motion to amend a prior domestic
relations order.

      Plaintiff (hereinafter the wife) and defendant (hereinafter
the husband) were divorced in December 1999 pursuant to a
judgment of divorce that incorporated, but did not merge, the
terms of a stipulated partial settlement agreement regarding the
division of certain specified property, including the husband's
New York State and Local Employees' Retirement System pension.
In January 2011, shortly after the husband retired, the wife
moved for entry of a domestic relations order (hereinafter DRO)
awarding her a marital share of the husband's pension valued as
of the date of his retirement – namely, September 28, 2010. The
                              -2-                521952

husband cross-moved for entry of a different DRO awarding the
wife a marital share of his pension valued as of the date of
commencement of the divorce action, which was May 21, 1998. The
difference in the parties' interpretation of the proper DRO
related to their different interpretations of the provision in
the separation agreement related to the division of the husband's
pension. Eventually, this Court found that the terms of the
parties' settlement agreement entitled the wife to the marital
portion of the husband's pension "as valued at the time of the
commencement of the divorce action," May 21, 1998 (96 AD3d 1129,
1130 [2012]). After supplying the ordered DRO to the Retirement
System, the husband became aware that the wife was receiving a
portion of the pension benefits derived from the application of
Retirement and Social Security Law article 19 (hereinafter
article 19) and a retirement incentive program in 2010
(hereinafter the 2010 incentive program) (see generally
Retirement and Social Security Law § 902 [a] [1]). Those
benefits provided additional years of service credit towards the
husband's pension based on his decision to retire, in 2010, in a
manner consistent with the 2010 incentive program, and those
benefits had not been available to him in 1998. The husband
thereafter moved to amend the DRO to incorporate amendments
clarifying that the wife was not entitled to share in the
benefits derived from article 19 and the 2010 incentive program.
The wife opposed husband's motion and cross-moved for an award of
counsel fees. Supreme Court thereafter denied the husband's
motion to amend and the wife's cross motion for counsel fees.
The husband now appeals.

      "A proper [DRO] obtained pursuant to a stipulation of
settlement can convey only those rights to which the parties
stipulated as a basis for the judgment" (McCoy v Feinman, 99 NY2d
295, 304 [2002]; see Kraus v Kraus, 131 AD3d 94, 100 [2015]).
"If a [DRO] is inconsistent with the provisions of a stipulation
or judgment of divorce, courts possess the authority to amend the
[DRO] to accurately reflect the provisions of the stipulation
pertaining to . . . pension benefits" (Kraus v Kraus, 131 AD3d at
100 [internal quotation marks and citations omitted]; see Montero
v McFarland, 70 AD3d 1282, 1284 [2010]).
                              -3-                521952

      Initially, we conclude that this Court's previous
interpretation of the meaning of the parties' settlement
agreement is law of the case. In assessing the propriety of the
competing DROs that the parties' originally proposed, this Court
directly passed on the meaning of the relevant provision in the
settlement agreement relating to the husband's pension (96 AD3d
at 1130), and the meaning of that provision was essential to
determining the proper contents of a DRO (see Scofield v Trustees
of Union Coll., 288 AD2d 807, 808 [2001]; Brown v State of New
York, 250 AD2d 314, 320 [1998]). Accordingly, as this Court has
previously determined, the parties had agreed that the wife's
"share of the pension emanates exclusively from the marital
portion as valued at the time of the commencement of the divorce
action," May 21, 1998 (96 AD3d at 1130).

      Supreme Court erred by concluding that the current DRO,
rather than the parties' settlement agreement, governed the
parties' rights in relationship to the husband's pension. We
agree with the husband that he is entitled to an amended DRO that
clarifies that the wife has no right to share in benefits that he
received pursuant to article 19 and the 2010 incentive program.
A pension benefit valued as of 1998 cannot account for benefits
that he only became eligible for at a later time; the wife's
contention to the contrary contravenes the language of the
agreement by assessing the portion of the pension attributable to
the husband's work up until 1998 based upon a valuation of the
pension as of 2010. Contrary to the wife's further contention,
the fact that her interpretation of the agreement would be
consistent with a statutory assessment of marital property in
relationship to pension benefits (compare Olivo v Olivo, 82 NY2d
202, 209 [1993]; see generally Domestic Relations Law § 236 [B]
[1] [c]) is of no moment; the rights in the pension were settled
by the parties' unambiguous agreement to fix the pension's value
at a set date and not by statutory principles of marital
property. Accordingly, we find that the DRO ought to be modified
to reflect that the wife is not entitled to benefits stemming
from article 19 and the 2010 incentive program, as the settlement
agreement valued the pension as of 1998 (see Montero v McFarland,
70 AD3d at 1284; Berardi v Berardi, 54 AD3d 982, 986 [2008]).
The parties' remaining contentions have been considered and are
found to be either academic or without merit.
                              -4-                  521952

     Lahtinen, J.P., Devine, Clark and Mulvey, JJ., concur.



      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as denied defendant's motion
to amend the domestic relations order; motion granted to the
extent of amending said domestic relations order to add
provisions directing the New York State and Local Employees'
Retirement System to exclude plaintiff from sharing in the
benefits derived from the additional service credits provided by
the application of Retirement and Social Security Law article 19
and the retirement incentive program in 2010 and matter remitted
to the Supreme Court for entry of an amended domestic relations
order in accordance with this Court's decision; and, as so
modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
