Opinion
No. FA00-0160786
April 14, 2004
MEMORANDUM OF DECISION RE MOTION FOR ORDER, POST-JUDGMENT #124
BACKGROUND
This matter comes before the court by way of the plaintiff's motion for order, postjudgment, dated January 8, 2004. After a trial before the court, Petroni, J., the marriage of the parties was dissolved by decree dated October 11, 2003. The dissolution of marriage judgment provided in part: "The parties shall share equally (50% — 50%) deferred compensation plans and their respective pension plans by way of QDRO [Qualified Domestic Relations Order]. These assets are listed in their respective financial affidavits. The plaintiff's attorney shall be responsible for preparing the QDRO and the parties shall share equally in the, cost of preparing it. The court will retain jurisdiction until said QDRO is accepted by this court."
At the time of dissolution, the defendant listed on his financial affidavit a 401K account with a value of $172,300.
Following the entry of the dissolution of marriage judgment, the defendant filed a motion to reopen, reargue and modify dated February 7, 2002. The court, Petroni, J., denied the defendant's motion. The defendant appealed the dissolution judgment, which the Connecticut Appellate Court affirmed in a decision dated May 27, 2003. Divito v. Divito, 77 Conn. App. 124, 822 A.2d 294 (2003). Thereafter, the defendant filed with the Connecticut Supreme Court a petition for certification, which the Court subsequently denied on July 8, 2003. Divito v. Divito, 264 Conn. 921, 828 A.2d 617 (2003). On September 4, 2003, the Supreme Court denied the defendant's request to reconsider denial of petition for certification.
In her motion for order, postjudgment, the plaintiff requests that the defendant's 401K account, which is to be distributed between the parties, be valued at the date that the QDRO is accepted by the appropriate employer. Because of the defendant's filing of appeals, the plaintiff states that approximately three years have passed since the entry of the judgment and the implementation of the QDRO has been delayed. As a result of this delay, she contends the retirement accounts should have a valuation date of the judgment of October 11, 2001, factoring in fluctuations in the market, positive and negative, during the period of time from the entry of the judgment until the implementation of the QDRO. In her supporting memorandum, the plaintiff further argues that by requiring the 401K account to be divided in half and retaining jurisdiction over the QDRO, rather than assigning a value to the account, the court was anticipating fluctuations in the market. In opposition, the defendant argues that his 401K account should be valued at the date of dissolution, the date which the court valued and divided all other marital property. Because there have been no exceptional intervening circumstances, the defendant argues there is no reason to value the 401K any time other than the date of dissolution.
DISCUSSION
Connecticut courts have consistently held that the time to value marital property is the date of marital dissolution. In Sunbury v. Sunbury, 216 Conn. 673, 674, 583 A.2d 636 (1990), the prevailing authority on this issue, the Connecticut Supreme Court entertained the question of when is the proper time to value marital property. After a divorce judgment was entered in December 1985, the plaintiff appealed to the Appellate Court, which agreed with the plaintiff, set aside the trial court's judgment and remanded the case with regard to the issue of periodic alimony. Id., 674-75. On June 3, 1988, the Connecticut Supreme Court granted the plaintiff's petition for certification and thereafter remanded the case for further proceedings that would include a reconsideration of all financial orders. Id., 675. The issue before the Supreme Court in a subsequent appeal was whether the trial court correctly valued the parties' assets as of the date of the original dissolution, December 1995 as opposed to the date of the subsequent rehearing, August 1989. Id. The plaintiff argued that the marital assets should have been valued at the subsequent rehearing because, during the pendency of the appeals, the marital home had increased in value and the defendant's employee profit sharing plan had quadrupled in value. Id., 675-76.
The Sunbury court rejected the plaintiff's argument that the marital property should have been valued at the date of the rehearing in August 1989, rather than the date of dissolution. In deciding this issue, the court interpreted General Statutes §§ 46b-81(a) and 46b-82, the statutes governing the division of property and the entry of orders of alimony in dissolution proceedings. Id., 676. These statutes provide respectively that at the time of entering a dissolution decree or annulment, the Superior Court may assign either party "all or any part of the estate of the other" or "may order either of the parties to pay alimony to the other." Id. The Court concluded that the time of the dissolution decree controls the time for entry of financial orders and held that "[i]n the absence of any exceptional intervening circumstances occurring in the meantime, [the] date of the granting of the divorce would be the proper time as of which to determine the value of the estate of the parties upon which to base the division of property . . . An increase in the value of the property following a dissolution does not constitute such an exceptional intervening circumstance." (Citation omitted; internal quotation marks omitted.) Id. The court reasoned that "[s]uch a construction of our dissolution statutes also comports with well recognized principles regarding the finality of actions. It is not in the public interest . . . to condone a procedure which would permit a plaintiff to litigate the same question over and over again, encumbering the mechanisms our society has established to resolve disputes . . . Litigation must end at some point." Id., 677. "To the extent that the plaintiff seeks consideration of a postdecree appreciation in the value of property, such appreciation, having occurred after the termination of the marriage, is no longer a marital asset." Id., 676.
In the present case, the plaintiff recognizes the date of dissolution as the time to value the defendant's 401K account, but argues that the court should take into consideration fluctuations in the market between the date of the dissolution judgment and the date the QDRO was implemented. The plaintiff further argues that the court may be guided by the recent Connecticut Appellate Court case Page v. Page, 77 Conn. App. 748, 748, 825 A.2d 187 (2003). In Page, the parties entered into a separation agreement stating that the husband shall transfer to the wife a one-half interest in a GE Savings and Security 401K plan. Id., 748. The Appellate Court remanded the case for an evidentiary hearing to establish the intent of the parties as to the distribution provided for in their agreement. Id., 749. Page is distinguishable from the present case, because Page dealt with the interpretation of a contract between the parties, not a dissolution judgment by the court. Because the parties in Page had entered into a written separation agreement, contract principles applied and the intent of the parties was essential to interpreting the agreement. Id.
There is no reason for this court to deviate from the longstanding rule articulated in Sunbury that the time to value marital property is the date of dissolution. In the present case, as in Sunbury, many years passed since the date of dissolution because of the pendency of a party's appeals. The Sunbury court explicitly rejected the plaintiff's argument that the marital assets, including the defendant's employee profit sharing plan, should be valued at the subsequent rehearing because these assets have increased in value during the pendency of the appeals. In this case, the plaintiff has not cited any exceptional intervening circumstances that would result in this court taking into consideration a post-dissolution change in the value of the defendant's 401K account. To value the defendant's 401K account on the date of dissolution, but to factor in the gains and losses on the plan as of the date of acceptance of the QDRO, would be inconsistent with Connecticut case law and the policy behind Connecticut's property division statutes. This court holds that the defendant's 401K account will be valued and divided as of the date of the dissolution decree, not the date the QDRO was accepted by the appropriate employer.
CUTSUMPAS, J.