Opinion
No. FA 06-4026765
February 17, 2009
MEMORANDUM OF DECISION RE: DEFENDANT'S POSTJUDGMENT MOTION FOR CONTEMPT, MOTION NO. 152
The issue in this case is date of evaluation of the retirement funds which the parties agreed to divide equally.
Background
The parties' 27-year marriage ended with their divorce on October 17, 2007. The court incorporated the parties' Separation and Property Distribution Agreement of that same date into the judgment. Pursuant to the parties' agreement, the judgment provides:
Retirement Accounts
The parties shall divide the total balance of their retirement accounts with the Plaintiff retaining 50% and the Defendant retaining 50%. The parties shall employ Attorney Elizabeth McMahon to prepare any QDRO's necessary to divide the defined benefit plans (50%/50%) and any QDRO necessary to effectuate the equal division of the IRA's and shall equally pay her costs and fees in this regard.
On the parties' October 17, 2007, financial affidavits, plaintiff husband listed six different IRA, 401k and pension accounts, totaling $538,107.78, and defendant wife listed three IRA accounts totaling $68,162. The plaintiff's financial affidavit listed the amounts in the Alstrom and GE accounts, discussed later, as $203,208 and $164,117 respectively.
Attorney McMahon was contacted in early November 2007, and received her retainer from defendant wife by the end of that month. By the end of January 2008, Attorney McMahon was still attempting to procure information from the parties as to dollar amount and identification of the plan to be divided, but she was advised by Mr. Chen that the parties were returning to court and the QDRO (Qualified Domestic Relation Order) preparation was to be put on hold.
In late January, defendant wife filed a Motion to Compel, asserting that plaintiff husband had not provided the information necessary to prepare the QDROs. On February 4, 2008, plaintiff responded in a Notice filed with the court that he had forwarded all information. Attorney McMahon's timeline entries do not clearly reflect such compliance. In late February 2008, Attorney McMahon again requested the identification information and the amounts from the parties, and she followed that with a similar request to the parties' attorneys a few days later.
There was a back-and-forth communication between and among the parties, their counsel and Attorney McMahon and as of May 1, 2008, it was apparently agreed that only 2 QDROs were necessary. On May 8, 2008, Attorney McMahon asked for the amount(s) and identification of the plan(s) to be addressed. On May 23, 2008, defendant wife directed a transfer of $100,000 from GE and $147,854 from Alstrom. On July 21, 2008, signed QDROs for those amounts were forwarded to the court, but these documents were returned by the court on July 27, 2008, because they did not correctly reflect the current name of the defendant wife, who had adopted her prior name at the time of the dissolution of the parties' marriage. On August 27, 2008, revised QDROs were forwarded to the court.
On October 7, 2008, the parties entered into a stipulation in the court (No. 148.10), which provides as follows:
1) The parties were granted a judgment of dissolution from this court on October 17, 2007.
2) Pursuant to the terms of the judgment, Shou-Chin Hsu (formerly Show-Chin Chen) was awarded fifty percent of the retirement plans belonging to Yen-Ming Chen.
3) The parties stipulate to the court that the award from the GE Savings Security Plan ($100,000) and Alstom, Inc., 401k Plan ($147,854) is the amount need to equalize their retirement plans.
On October 9, 2008, the court signed and returned the QDROs in these amounts. The plans were then served on the plan administrators, but the Alstrom QDRO was rejected because, at the time of this submission, there was not enough money in the account to satisfy the transfer. Pursuant to the directive of Alstrom, Attorney McMahon redrafted the QDROs for both Alstrom and GE to include the additional language " the requested amount or 100% of the account balance."
Plaintiff husband, Yen-Ming Chen, has refused to sign the revised QDROs, asserting that this provides the defendant wife, Show-Chin Hsu, with more than 50% of the retirement accounts as they presently exist.
Discussion
A separation agreement incorporated into a judgment is to be construed as a contract. Sullivan v. Sullivan, 86 Conn.App. 501, 504 (2001). The terms thereof are to be construed to effectuate the intent of the parties, determined from the language used, giving the language its common, natural and ordinary meaning. Issler v. Issler, 250 Conn. 226, 235 (1999). The parties' separation agreement provision as to the division of their retirement accounts is clear — the parties are to share those assets on a 50-50 basis.
The parties' agreement does not provide a date for evaluation, and, in the absence thereof, the date of the dissolution is the proper time at which values are to be set for division of the parties' assets. Sunbury v. Sunbury, 216 Conn. 673, 676 (1990). In Kremenitzer v. Kremenitzer, 81 Conn.App. 135, 139 (2004), the Appellate Court suggested that this rule might not need to be strictly followed if "exceptional intervening circumstances" exist, but it concluded that a decrease in the value of property does not constitute such a circumstance.
At the hearing on this motion, plaintiff husband testified that, at the time that he signed the October 2008, stipulation confirming the amounts that were to be set forth in the QDROs, a year after the entry of the judgment, he knew that he was losing money (approximately $50,000), but he was willing to take the loss. However, approximately ten days before the January 29, 2009, hearing on this motion, Mr. Chen realized that he had made a mistake by signing the October 2008, stipulation. Unfortunately, that was a unilateral mistake, and no remedy exists to rectify that error.
While the court finds that Mr. Chen's actions may not have been willful disobedience of court orders, the court does find that he is obliged to pay the amounts set forth in the QDROs and directs that he sign the QDROs prepared by Attorney McMahon as dictated by the plan administrators.
At the close of the January 29, 2009, hearing in this matter, the court requested proposed orders from the parties. The file will reflect that the parties submitted considerably more than that — indeed, post-hearing proffers of evidence, which this court cannot, and did not, consider in deciding this matter.
SO ORDERED.