Kennelty v. Kennelty

Appellate Division of the Supreme Court of New York

Kennelty v. Kennelty

63 A.D.3d 1599, 882 N.Y.S.2d 604

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 5, 2009

StatusPublished

This text of 63 A.D.3d 1599 (Kennelty v. Kennelty) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kennelty v. Kennelty, 63 A.D.3d 1599, 882 N.Y.S.2d 604 (N.Y. Ct. App. 2009).

Pincite

Opinion

[1600]*1600Appeal from an order of the Supreme Court, Oneida County (Anthony E Shaheen, J.), entered April 17, 2008 in a divorce action. The order denied the motion of plaintiff for leave to file an amended qualified domestic relations order.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied plaintiffs motion for leave to file an amended qualified domestic relations order (QDRO). The parties stipulated to the entry of a QDRO that would fix the value of the parties’ respective shares in a TIAA-CREF account as of a certain date. Plaintiffs attorney indicated at the time of the stipulation that defendant could withdraw her share of the funds or leave it in the account until a later date and that, “if she . . . elects to leave it in there and it increases, those are her gains, and if it decreases, those are her losses.” We conclude that, pursuant to the terms of the stipulation, defendant was entitled to the passive gains on her share of the account between the date of the valuation of the account and the date on which her share was transferred to a separate account. The record establishes that the court properly construed the “ ‘stipulation made in open court in accordance with the intent of the parties and the purpose of the stipulation as illustrated in the record as a whole’ ” (Cuda v Cuda, 19 AD3d 1114, 1114 [2005]; see Elwell v Elwell, 34 AD3d 1337 [2006]). Present—Martoche, J.P, Smith, Centra, Fahey and Pine, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

[1600]*1600Appeal from an order of the Supreme Court, Oneida County (Anthony E Shaheen, J.), entered April 17, 2008 in a divorce action. The order denied the motion of plaintiff for leave to file an amended qualified domestic relations order.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied plaintiffs motion for leave to file an amended qualified domestic relations order (QDRO). The parties stipulated to the entry of a QDRO that would fix the value of the parties’ respective shares in a TIAA-CREF account as of a certain date. Plaintiffs attorney indicated at the time of the stipulation that defendant could withdraw her share of the funds or leave it in the account until a later date and that, “if she . . . elects to leave it in there and it increases, those are her gains, and if it decreases, those are her losses.” We conclude that, pursuant to the terms of the stipulation, defendant was entitled to the passive gains on her share of the account between the date of the valuation of the account and the date on which her share was transferred to a separate account. The record establishes that the court properly construed the “ ‘stipulation made in open court in accordance with the intent of the parties and the purpose of the stipulation as illustrated in the record as a whole’ ” (Cuda v Cuda, 19 AD3d 1114, 1114 [2005]; see Elwell v Elwell, 34 AD3d 1337 [2006]). Present—Martoche, J.P, Smith, Centra, Fahey and Pine, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

63 A.D.3d 1599, 882 N.Y.S.2d 604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennelty-v-kennelty-nyappdiv-2009.

Opinion

Related

Cite This Page — Counsel Stack