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CAROL A. CUDA, Respondent,
v.
GARY D. CUDA, Appellant.

(Appeal No. 2.)


Appellate Division of the Supreme Court of the State of New York, Fourth Department.


19 A.D.3d 1114 796 N.Y.S.2d 821


June 10, 2005.


CUDA v. CUDA

19 A.D.3d 1114


Present — Pigott, Jr., P.J., Green, Gorski, Pine and Lawton, JJ.


It is hereby ordered that the amended order so appealed from be and the same hereby is unanimously affirmed without costs.


Memorandum:


We note at the outset that defendant appeals from an amended qualified domestic relations order (QDRO) and that no appeal lies as of right from a QDRO. Nevertheless, we treat the notice of appeal as an application for leave to appeal, grant the application and consider the merits of defendant's appeal (see Irato v Irato, 288 A.D.2d 952 [2001]; cf. Gartley v Gartley, 15 A.D.3d 995, 996 [2005]; Shaw v Shaw, 15 A.D.3d 1007 [2005]).


We reject defendant's contention that the amended QDRO does not reflect the parties' stipulation with regard to plaintiff's share of defendant's retirement benefits. "A court should construe a 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" (De Gaust v De Gaust, 237 A.D.2d 862, 862 [1997]; see Pellino v Pellino, 308 A.D.2d 522 [2003]). Viewing the record as a whole, we conclude that the amended QDRO properly reflects the parties' agreement that plaintiff would receive her share of benefits upon defendant's retirement in accordance with the Majauskas formula (see Majauskas v Majauskas, 61 N.Y.2d 481 [1984]), and that her share was not limited to a portion of the value of those benefits as of the date on which the action was commenced (cf. McWade v McWade, 253 A.D.2d 798, 799 [1998]).




The case of Cuda v. Cuda is provided as part of a free educational service by J. Douglas Barics, attorney at law, for reference only. Cases such as Cuda may be overruled by subsequent decisions, different judicial departments may have different controlling case law, and the level of the court deciding each case will determine whether it is controlling law or not. Cuda v. Cuda is presented here to help illustrate how the law works in general, but for specific legal matters, an attorney should be consulted.


If you have any questions or comments, please feel free to contact Mr. Barics at lawyer@jdbar.com or (631) 864-2600. For more articles and information, please visit www.jdbar.com


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