Opinion
No. FA 01-4016034
November 2, 2006
MEMORANDUM OF DECISION REGARDING DEFENDANT'S MOTION FOR CLARIFICATION
On January 13, 2006, the defendant filed a Motion for Clarification of the court's judgment in the above-entitled matter. The court rendered that judgment on September 21, 2001, when it issued a written memorandum of decision that contained its factual findings and orders in connection with the dissolution of the parties' marriage. Prior to issuing that decision, the court presided over a two-day "limited contested" trial of this matter at Superior Court in Hartford. Both parties were present at trial, and both were represented throughout the proceeding by counsel.
Neither party ever appealed the court's judgment, moved to reopen the judgment, nor filed a petition for a new trial. The instant motion for clarification was filed by the defendant approximately four years and four months after judgment was issued in this case.
In his motion, the defendant, a former officer with the State of Connecticut Department of Correction, claims that there is "ambiguity" in the judgment with respect to the court's order allocating his pension from the State Employees' Retirement System (SERS). The specific claims alleged in the defendant's motion are discussed at greater length below.
An evidentiary hearing on the instant motion was held before the undersigned on August 28, 2006. Both parties and their attorneys were present at this hearing. Both sides submitted written memoranda of fact and law prior to the evidentiary hearing. At the conclusion of the August 28, 2006 proceeding, counsel for the plaintiff and the defendant were requested by the court to submit supplemental memoranda of law. This court has carefully considered the evidence presented at hearing, and the thoughtful written and oral arguments of both counsel.
In his motion for clarification, the defendant raised the following claims: "The Defendant was disabled in 2002 within the scope of his employment with the State of Connecticut and later placed on disability retirement, which in turn increased his gross monthly pension. The Memorandum of Decision provides that the Plaintiff is entitled to 40 percent of the Defendant's pension, but is silent on the implications an involuntary retirement would have on Plaintiff's share." The motion further states: "The Defendant moves for clarification on two grounds: First, that the Memorandum of Decision, though silent on the matter did not intend for the Plaintiff to receive a portion of the Defendant's involuntary pension increase; and Second, that irregardless, the Trial Court does not have the statutory authority to assign the Plaintiff a portion of the Defendant's disability retirement pension, where the asset was acquired post-dissolution." (See: Defendant's Motion for Clarification and Memorandum of Law in Support of Motion for Clarification, both dated January 13, 2006).
The plaintiff responds that the defendant's disability pension is not an asset that was acquired by the defendant after the judgment, but is rather the State of Connecticut pension that the court allocated in its property orders on the date of dissolution. The plaintiff contends that the language of the judgment is not ambiguous, and that the instant motion is really an attempt by the defendant to seek the postjudgment modification of a property order. (See: Plaintiff's Motion to Dismiss Defendant's Motion for Clarification and Memorandum of Law In Support of Motion to Dismiss Defendant's Motion for Clarification, both dated June 14, 2006.)
The resolution of this controversy first requires the recitation of the specific language in the court's order pertaining to the pension, and the exposition of certain additional relevant facts.
The salient portion of the September 21, 2001 memorandum of decision that deals with the disposition of the defendant's pension states:
The court enters the following orders, pursuant to C.G.S. 46b-81, for the division of the defendant's pension benefits under the provisions of the Connecticut State Employees Retirement System:
The plaintiff shall be entitled to, and the defendant's SERS pension plan shall pay to her, 40 [percent] of the defendant's monthly retirement benefit payment. It is the court's intention that the plaintiff receive 40 percent of the defendant's monthly retirement benefit payment under the contributory hazardous duty retirement plan should he qualify for same, or 40 [percent] of the defendant's monthly retirement benefit payment under the non-contributory Tier II plan should he fail to qualify for a hazardous duty pension. Should the defendant leave state service prior to qualifying for a hazardous duty pension and apply for a refund of his contributions and awarded interest posted to his hazardous duty account, then the plaintiff shall be entitled to, and the defendant's SERS plan shall pay to her, 40 [percent] of the defendant's current contributions of $19,193.53, 40 [percent] of awarded interest of $4,238.78, and 40 [percent] of future awarded interest on said current contributions.
Mickey v. Mickey, 2001 Ct.Sup. 13061, September 21, 2001, p. 13073.
In its memorandum of decision, the court made various factual findings concerning the parties' financial assets, including each of their pensions. (See: Mickey v. Mickey, supra, p. 13066-13068.) The court rejected evidence at trial from the plaintiff's expert concerning the value of the defendant's pension, because that valuation was based on an assumption that the defendant would work as a correction officer for six more years, and thereby qualify for a higher-paying hazardous duty pension at age 41. The court found that evidence to be too speculative. The court also made the following findings of fact about the defendant's pension in its memorandum of decision:
At hearing, it was questioned whether the court's order allocating the defendant's pension complied with the Connecticut Supreme Court's ruling concerning the approved methods for equitably dividing a pension asset in a dissolution of marriage proceeding. Krafick v. Krafick, 234 Conn. 783 (1995). The court believes that its "present division method of delayed distribution" order was appropriate, given the equities of the case, the uncertainty about the type of SERS retirement which the defendant would ultimately obtain, and the inadequacy of the evidence presented at trial concerning the present value of his state pension. See: Krafick v. Krafick, supra; Bornemann v. Bornemann, 245 Conn. 508 (1998), Bender v. Bender, 258 Conn. 733 (2001); and Hansen v. Hansen, 80 Conn.App. 609 (2003).
The court finds that the defendant is vested in the Tier II non-contributory pension plan, and that based on his current years of service, he has already qualified to receive a monthly benefit of approximately $780 from that pension at age 55. He would qualify for a higher hazardous duty monthly payment under a contributory plan if he serves approximately six more years as a correctional officer. The defendant has paid $19,193.53 in contributions and $4,283.78 in awarded interest into his hazardous duty pension account. That money would be refunded to the defendant if he left state service without qualifying for a hazardous duty pension.
Mickey v. Mickey, supra, p. 13167.
As noted, most of the evidence that was presented at the 2001 trial about the defendant's SERS pension pertained either to amounts that he would receive from the Tier II non-contributory plan in which he was vested at the time of dissolution, or amounts that he might possibly receive from the contributory hazardous duty plan if he worked an additional six years. Neither side presented any evidence at trial about the value of a disability pension, or the amount of future benefit payments that the defendant might receive through SERS if he were to subsequently become disabled.
At the August 28, 2006 hearing on the Motion for Clarification, the defendant testified that after the dissolution, he sustained injuries to his neck, lower back and right shoulder while breaking up a fight among prisoners at the correctional facility where he worked. A state statute mandates that after receiving disability payments for 24 months, an employee will be considered totally disabled only if he or she is totally unable to work at any suitable and comparable job. (C.G.S. § 5-192p(b) and Defendant's Exhibit C.) The evidence at the hearing established that the defendant began receiving service-connected disability pension payments from the State of Connecticut in May 2005. Pursuant to the order that this court issued dividing the defendent's SERS pension asset, the state then began paying the plaintiff 40 percent of the defendant's gross monthly pension benefit payment. The defendant's monthly disability pension payment is greater than the amounts estimated at trial that he would receive each month from either his vested Tier II pension, or a hazardous duty pension.
Nancy Wilson, a representative from the pension division of the State Comptroller's Office, was a witness at the hearing on the Motion for Clarification. She testified credibly that the defendant's disability pension payments are determined by the regulations governing his SERS Tier II pension plan. Per Ms. Wilson, the amount of the defendant's disability pension payment was calculated based on a formula that takes into consideration his state service longevity payments, and the three highest years of income he earned as a correction officer. The court finds from the evidence that although there is no minimum service requirement for a service-connected disability retirement, the disability pension benefits that the defendant now receives result from his employment by the state as a correction officer, and his enrollment in the Tier II SERS plan. The evidence at hearing established that there are not two distinct pensions at issue in this controversy — the disability pension benefit payments were awarded to the defendant under the statutes and regulations governing the State Employee Retirement System, and supplant the pension payments that he would have received from the state if had he retired without disability.
DISCUSSION
The court must first address the legal question of whether the payments awarded to the defendant pursuant to the provisions of C.G.S. § 5-192p are disability payments, or pension benefits. The defendant claims that they are the former, and asserts that they are intended to replace salary which can no longer be drawn. He also argues that because the payments result from a disability that he sustained after the dissolution entered, they constitute an asset that was received following the date of judgment, and are not part of the marital estate which the court distributed in September 2001. Accordingly, he contends that under the holdings of Smith v. Smith, 249 Conn. 265 (1999), and Bee v. Bee, 79 Conn.App. 783 (2003), the court has no statutory jurisdiction under C.G.S. § 46b-81 to award the plaintiff any portion of these benefits.
The Connecticut Supreme Court addressed this issue in the case of Traveler's Insurance Company v. Pondi-Salik, 262 Conn. 746 (2003). In that matter, the Supreme Court analyzed the statutory provisions of C.G.S. § 5-192p, and ruled that benefits paid pursuant to that law were ". . . in the nature of retirement benefits and not disability benefits." Traveler's Insurance Company v. Pondi-Salik, supra, p. 755. The court also held in that decision that a state employee's disability ". . . operates only to accelerate the employee's qualification for retirement benefits under 5-192p." Travelers Insurance Company v. Pondi-Salik, supra, p. 755. The defendant attempts to distinguish the Pondi-Salik holding from the facts in the case at bar. He notes that the Pondi-Salik case dealt with a controversy concerning § 5-192p disability payments paid by the state to a state trooper who had lodged an uninsured motorist claim with an insurance company. The defendant also asserts that in its Pondi-Salik ruling, the Supreme Court emphasized the fact that the employee qualified for disability retirement because she had accrued the requisite 10 years of vested service. (See: C.G.S. § 5-192p(a).) Mr. Mickey contends that because he received a disabling injury in the line of duty, he qualified for a service-connected disability under a different provision of the statute that made him immediately eligible for the payments, regardless of his length of state service, or age. For this reason, he contends that the Pondi-Salik holding is not applicable here, because the payments that he receives from the state are really disability payments awarded for an injury sustained subsequent to the date of the dissolution judgment. As such, he asserts that they are after-acquired property, and that under Smith v. Smith and its progeny, the court has no jurisdiction to award them to the plaintiff.
This court has carefully considered all of the defendant's legal arguments, and the cases that were cited in support of his claims that the benefits in question are disability payments, and that the court's property order is ambiguous. (These included, inter alia: Perritt v. Perritt, 54 Conn.App. 95 (1999); Kremenitzer v. Kremenitzer, 81 Conn.App. 135 (2004); and Rosato v. Rosato, 255 Conn. 412 (2001).) The court has also considered the statutory language of C.G.S. § 5-192p, and the Supreme Court's extensive analysis of the State Employee Retirement Act statutes, as annunciated in the Pondi-Salik decision.
In the Pondi-Salik decision, the Supreme Court made reference to two specific provisions of C.G.S. § 5-192p when it concluded that the employee's payments were retirement benefits. The court noted:
First, in order to qualify for the benefits, the recipient's disability must have occurred after ten years of service or as the result of injuries incurred on duty. Second, the amount of benefits to be received is calculated based on" credited service," meaning the number of years that the recipient has worked or would have worked at the job.
(Internal citation omitted.) Traveler's Insurance Company v. Pondi-Salik, supra, p. 754-55.
This court does not find that the forgoing language renders the Pondi-Salik precedent inapplicable to the case at bar. Although Mr. Mickey was not statutorily required to work for a minimum period of time in order to qualify for a service-related disability retirement, his payments were awarded under C.G.S. § 5-192p because he was an enrolled member of the SERS Tier II pension plan, and had sustained a disabling injury while in the performance of his state duties. Nancy Wilson of the State Comptroller's Office testified credibly at the hearing on the Motion for Clarification that the amount of the defendant's payments are based upon a formula under the Tier II plan regulations that takes into consideration his longevity payments, and his three highest years of salary.
Furthermore, the Supreme Court's analysis of C.G.S. § 5-192p was not limited to the language referenced above. The decision recounted a number of additional factors that prompted the court to hold that payments under that statute should be considered retirement benefits. These included: (1) the fact that C.G.S. § 5-192p is found in the chapter of the state statutes entitled the "State Employees Retirement Act"; (2) the fact that the statutes surrounding C.G.S. § 5-192p provide for various additional types of retirement benefits, such as hazardous duty retirement (C.G.S. § 5-192n), deferred vested retirement (C.G.S. § 5-192o), optional forms of retirement income (C.G.S. § 5-192q) and spousal allowance and pre-retirement death benefits (C.G.S. § 5-192r); (3) the fact that the legislation amending C.G.S. § 5-192p was entitled "An Act Amending the State Employees Retirement System and Establishing a Tier II Pension Plan for New State Personnel"; (4) the fact that the titles of additional legislation amending the statute indicated that the General Assembly considered the statute to be part of a retirement scheme; and (5) the fact that under the provisions of C.G.S. § 5-142, there exists ". . . a separate and parallel statutory provision that establishes disability benefits . . ." Travelers Insurance Company v. Pondi-Salik, supra, p. 756-57.
Under the provisions of C.G.S. § 5-142, which is entitled "Disability Compensation," state personnel with hazardous jobs who become injured in the performance of their official duties qualify for state payment of their medical expenses, and of their salary, while disabled. Correction officers (such as the defendant in the case at bar) are among the employees covered under this statute, which appears in Chapter 65 of the Connecticut General Statutes. That chapter is entitled "Disability Compensation and Death Benefits."
After reviewing the Supreme Court's decision in the Pondi-Salik case, the language of C.G.S. § 5-192p, and the statutory scheme delineated in the State Employee's Retirement Act, this court concludes that the Pondi-Salik precedent controls in the present controversy, and finds that the defendant's disability pension payments are retirement benefits, and not disability payments.
Another Superior Court judge reached a similar conclusion, and adopted the Supreme Court's Pondi-Salik analysis, in an earlier domestic relations matter with facts that are somewhat similar to the case at bar. See: Sears v. Sears, 2003 Ct.Sup. 7028 (2003). ( 34 Conn. L. Rptr. 680).
In that matter, the parties in a 1998 uncontested dissolution submitted a written property distribution agreement that the court (Zarella, J.) approved and adopted as its judgment. Pursuant to the agreement, the court ordered that the parties ". . . shall divide equally any and all retirement benefits earned by them by virtue of the respective employment . . ." Sears v. Sears, supra, p. 7028. The parties and the court also signed a "Division of Pension Order" which allocated 50 percent of the defendant's benefits from his State of Connecticut pension to the plaintiff. Sears v. Sears, supra, p. 7028.
On March 2, 2003, the defendant, Robert Sears, filed a postjudgment Motion for Clarification of the court's order with respect to his pension. In his motion, the defendant asserted he had become disabled in 2001 and was unable to work at his employment at the University of Connecticut. The defendant claimed that he was receiving monthly disability retirement benefits from the state in accordance with the provisions of C.G.S. § 5-192p. His motion sought clarification of the court's prior order awarding the plaintiff half of his retirement benefits. As in the case at bar, the defendant in Sears claimed that the payments were disability benefits, and not retirement benefits, and therefore were not subject to the court's prior property distribution order. He specifically argued that the court awarded his former spouse 50 percent of the retirement benefits that he would have received under C.G.S. § 5-192l, and C.G.S. § 5-192m, and that the payments he was now receiving were made pursuant to the provisions of C.G.S. § 5-192p. Mr. Sears contended that the plaintiff was improperly receiving 50 percent of his disability pension benefits, because she was only entitled to half of his retirement benefits. Sears v. Sears, supra, p. 7029.
In denying the defendant's Motion for Clarification, Judge Edward Graziani wrote:
The Supreme Court of Connecticut addressed this issue in Travelers Insurance Company v. Pondi-Salik, 262 Conn. 746 (2003). In that case, the court held that "on the basis of the context of § 5-192p and the statutes' reliance on credited service to determine both qualification for and calculation of benefits, that benefits paid pursuant to § 5-192p are in the nature of retirement benefits and not disability benefits. Disability operates only to accelerate the employee's qualification for retirement benefits under § 5-192p. The court articulated a detailed analysis to support its findings which the court finds applicable to the issues in this case.
Sears v. Sears, supra, p. 7029.
This court concurs with the reasoning stated in Judge Graziani's decision, and finds it to be applicable to the case at bar.
A finding here that the defendant's payments are retirement benefits from his state pension is supported by the fact that there are not two separate types of payments at issue in this controversy. The monthly pension payments that Mr. Mickey receives from SERS under C.G.S. § 5-192p replace any benefits that he would have received from his vested, non-contributory Tier II plan (C.G.S. § 5-192l; C.G.S. § 5-192m), or from a contributory hazardous duty pension (C.G.S. § 5-192n), if he had subsequently qualified for the latter. Put another way, the payments that are made to the defendant each month pursuant to the disability retirement statute are the only retirement benefits that he will ever receive from SERS as a result of his service as a state employee. They emanate from the pension that the court allocated in its 2001 property orders. Furthermore, if the court adopted the defendant's legal theory that they are after-acquired assets, the defendant would receive all of those state retirement benefits, and the plaintiff who was married to the defendant for 12 of the approximately 15 years that he worked as a correction officer, would receive none of them.
Implicit in the defendant's motion for clarification is the argument that because the defendant became disabled after the dissolution judgment entered, and was awarded increased pension payments as a result, the plaintiff should not share in any enhanced retirement benefits that the defendant receives as a result of his postjudgment injuries. The court does not agree with that contention.
A trial court presiding over a dissolution of marriage proceeding is required to allocate marital property at a specific moment in time, based upon the equities and evidence then before it. "The purpose of a property division pursuant to a dissolution proceeding is to unscramble existing marital property in order to give each spouse his or her equitable share at the time of the dissolution." Smith v. Smith, supra, p. 275 (emphasis added). "Dispositions of property made at the time of the decree under § 46b-81 are not subject to modification, even if there should be a change of circumstances." (Internal citations omitted.) Rosato v. Rosato, 72 Conn.App. 9, p. 14 (2003).
As noted previously, most of the evidence that was introduced at trial about the defendant's SERS pension pertained primarily to monthly benefit amounts that he would receive either from his vested Tier II pension account, or from the hazardous duty pension plan, if he had worked as a correction officer for six more years. The court rejected the expert evidence offered at trial concerning the pension's present value, because it was too speculative. There was no evidence offered about disability pension benefits, although this type of retirement benefit was also potentially available to the defendant at that time under the statutory provisions of the State Employee Retirement Act. Based upon all of the probative evidence that was presented at the trial, and based upon all of the equitable factors which the court considered pursuant to C.G.S. § 46b-81, the court issued orders dividing the parties' marital property, including the defendant's SERS pension benefits.
Because a court is required to permanently allocate marital assets at the time it issues property orders, the possibility exists that the worth or composition of the property can change after the date of judgment. A number of postjudgment events, such as bankruptcy, an increase or decrease in the value of property, the loss or destruction of an asset, or the death or illness of a party can, under certain circumstances, subsequently impact the value of a marital estate, and the value of the portion thereof that each party ultimately receives. A trial court presiding over a dissolution of marriage action cannot predict all future contingencies, nor make orders in anticipation of them, at the time it renders judgment.
See: Smith v. Smith, supra, p. 275.
In the case at bar, the defendant's SERS retirement benefits are larger because of the disability that he sustained approximately one year after the dissolution judgment entered in this case. Because of that occurrence, the defendant began receiving his pension at a date earlier than he would have under either the state's Tier II plan, or its hazardous duty plan. In accordance with the court's judgment and Division of Pension Order, the defendant now receives 60 per cent, and the plaintiff receives 40 percent, of those benefits.
As stated above, this court is persuaded that the holdings of the Pondi-Salik and Sears cases are dispositive in this matter. The court has found that the defendant's disability retirement benefit is not an asset that was acquired after the date of dissolution, but is rather the defendant's State Employee Retirement System pension benefit that the court divided in its 2001 property distribution orders. Because of this, the court also finds that it had the requisite jurisdiction to enter the property distribution orders that it did on September 21, 2001, and that the defendant's current SERS disability retirement payments are properly subject to those orders.
In a supplemental memorandum of law submitted on September 11, 2006, the defendant argued that his disability retirement ". . . was not only an asset acquired after the dissolution, but, at best, was a non-existent interest at the time of dissolution, let alone a speculative one, and therefore, fell beyond the statutory subject matter jurisdiction of the trial court to assign." The court rejects this argument, because it overlooks the evidence that the defendant was a vested participant in the state Tier II pension plan at the time of the disposition, and that a disability pension was one of several forms of retirement plans that were potentially available to the defendant then by statute as a result of his state service and enrollment in SERS. In short, the court finds that the defendant's interest in a state pension, and in the disability retirement benefits that he ultimately received therefrom, was a sufficiently concrete property interest on the date that judgment entered. See: Bender v. Bender, 258 Conn. 733 (2001).
The court further finds that the language and intent of its orders distributing ". . . the defendant's pension benefits under the provisions of the Connecticut State Employee's Retirement System," and awarding the plaintiff 40 percent ". . . of the defendant's monthly retirement benefit payment," are clear and unambiguous.
See: Mickey v. Mickey, supra, p. 13073.
Accordingly, the defendant's Motion for Clarification is hereby DENIED.
At various times prior to and during this proceeding, the plaintiff argued that the defendant's Motion for Clarification should be summarily dismissed. She alleged that the motion was not timely filed, and that it was an impermissible attempt to seek a postjudgment modification of property distribution orders. Conversely, the defendant argued that a ruling by Judge Elliot Solomon on July 19, 2006 denying the plaintiff's motion to dismiss, and a similar ruling by this court after the defendant rested his case during the motion hearing, invoked the doctrine of res judicata, and prevented the plaintiff from raising his objections and defenses to the defendant's motion. This court has considered, but rejects, both arguments. The court finds: (1) that the defendant was not legally precluded from filing the Motion to Clarify Judgment; (2) that Judge Solomon appropriately assigned this matter to the undersigned, as the original trial court, for full hearing on all issues related to the defendant's motion; and (3) that given the limited nature of the proceedings before Judge Solomon, and given this court's belief that it was necessary to hear and consider the evidence and arguments of both parties before issuing a decision, any rulings that preceded the issuance of this decision did not implicate the doctrine of res judicata, nor prevent this court from fully hearing and adjudicating the matter at bar.
SO ORDERED.