THE STIPULATION RE: SHARING HUSBAND’S PENSION AT A FUTURE DATE WAS NOT AMBIGUOUS AND NEED NOT BE REFORMED; THE STIPULATION WHICH WAS INCORPORATED BUT NOT MERGED INTO THE DIVORCE JUDGMENT CANNOT BE REFORMED PURSUANT TO A MOTION, A PLENARY ACTION IS REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the stipulation that was incorporated but not merged into the divorce judgment was not ambiguous and should not have reformed the stipulation based upon a mutual mistake. The stipulation was not ambiguous and required the husband to share his pension when he turned 62. In addition, reformation of the stipulation was not appropriate pursuant to a motion. A plenary action is required to reform stipulation which is incorporated but not merged into the judgment of divorce:

… Supreme Court should have rejected the plaintiff’s contention that the stipulation of settlement was ambiguous. The interpretation of the stipulation advanced by the plaintiff would render meaningless the terms of the stipulation providing that distribution of pension benefits to the plaintiff would commence in the future, when the defendant reached the age of 62 … . Inasmuch as the language of the stipulation disclosed the parties’ intent to defer the plaintiff’s pension distribution until the defendant reached age 62, at a time he would have been eligible for regular service retirement benefits, and is not subject to more than one reasonable interpretation, the agreement is not ambiguous … .

… [T]o the extent that the Supreme Court determined that the stipulation of settlement was affected by a mutual mistake, reformation was not appropriate. A motion is not the proper vehicle for challenging a separation agreement incorporated but not merged into a judgment of divorce. Rather, the plaintiff was required to commence a plenary action to reform the stipulation … . In any event, reformation of the stipulation was unwarranted, as the parties’ mistake regarding the category of benefits the defendant would receive did not “involve a fundamental assumption of the contract” … . Anderson v Anderson, 2023 NY Slip Op 06108, Second Dept 11-29-23

Practice Point: Here the judge should not have determined the stipulation incorporated but not merged into the judgment of divorce was ambiguous because it was subject to only one interpretation.

Practice Point: A stipulation which is incorporated but not merged into the judgment of divorce cannot be reformed pursuant to a motion. A plenary proceeding must be commenced.