Opinion
No. KNO FA 07 4107032 S
January 19, 2010
MEMORANDUM OF DECISION ON MOTION FOR "ADVICE, CORRECTION, AND/OR CLARIFICATION" (#141) AND MOTIONS FOR CONTEMPT
This court dissolved the marriage of the parties by a decree dated April 8, 2008. Before the court at this time are plaintiff's motion dated October 5, 2009, seeking an order clarifying the parties' rights with respect to defendant's military pension. That same issue is also addressed in plaintiff's hitherto unadjudicated motions "for order and sanctions" dated March 23, 2009 (#133), motion for contempt and sanctions dated September 18, 2009 (#136), and motion for contempt and sanctions dated September 30, 2009 (#138); these three motions are, in fact, almost verbatim mirror images of each other.
These motions appeared on the short calendar of January 4 and were randomly assigned to Judge Jongbloed for determination. The parties requested that she "take the papers" without hearing evidence or argument. Realizing that the principal task at hand is "clarification" of a decision made by the undersigned, she referred the file to me for resolution of this issue.
On April 8 of 2008, the parties had been scheduled for a contested final hearing. That morning, they reported an agreement and sought to have judgment rendered based upon that agreement. This court notes that the document they submitted and captioned "Marital Dissolution Agreement" began its life as plaintiff's proposed orders for the trial. That type-written submission was modified by hand in almost every respect, reflecting much intense, last-minute horse-trading between them. This court was careful to canvass both parties as to their readiness to proceed and as to their understanding of the provisions of this hastily-arranged final agreement.
Plaintiff's pending motions stem from the following provision in the decree, which embodies paragraph 3 of the dissolution agreement:
Wife to receive 50% of Husband's military pension valued as of the date of dissolution. She shall further receive any COLA increases on her portion and shall be named survivor beneficiary on the pension. Parties to share cost of QDRO.
In its original iteration, the agreement's first sentence ended with the additional words ". . . using an amount calculation." At the hearing, the court inquired what they meant by "amount calculation," and was informed that both intended the wife's share would be expressed as an absolute dollar amount. Subsequently, due to service regulations precluding the COLA increase unless the payee's share was expressed as a percentage of the total monthly payment, the parties modified their agreement, as the court did its decree, to eliminate the disqualifying language. With that now obsolete provision redacted, the language set forth above is the entirety of what the parties presented to this court with respect to the division of the pension.
Pursuant to the judgment, the jointly-retained expert who prepared the QDRO presented the parties with a draft document captioned "Qualifying Court Order for the Division of Military Retirement Benefits." The document, which purportedly tracks Defense Department requirements for preparation of an enforceable court order, includes in the definition of "retired pay" additional prospective sources of income to the serviceman, specifically ". . . including, but not limited to, exit bonuses, voluntary separation incentive pay (VSI), special separation benefit (SSB), or any other form of retirement benefits attributable to separation from service" (paragraph d to Exhibit B to plaintiff's January 4 memorandum of law in support of her present motion).
The purpose of the "voluntary separation incentive" as 10 U.S.C. § 1175 is to "provide a financial incentive to members of the armed forces described in subsection (b) for voluntary appointment, enlistment, or transfer to a reserve component."
The purpose of the "special service benefit" as set forth in 10 U.S.C. § 1174a(e)(1) is "to meet a need of the armed force under the Secretary's jurisdiction to reduce the number of members in certain grades, the number of members who have completed a certain number of years of active service, or the number of members who possess certain military skills or are serving in designated competitive categories."
The gravamen of plaintiff's motions is that the entire constituency of "retired pay" is within the contemplation of the court's award to her of one-half of the "pension," and that defendant or his agent should thus be ordered to sign the QDRO in the form presented. He contends, on the other hand, that a "pension" is a discrete item which does not include any other exit-related pay, and thus he resists being compelled to authorize the allocation to her of benefits not bargained for in their negotiations, nor included within the court's order of a pension division. He offers to sign a QDRO limited to division of his "disposable military retirement pay."
Recently, in Ahmadi v. Ahmadi, 294 Conn. 384 (2009), our Supreme Court outlined the considerations in cases such as this upon which a judge must base any decision as to what the parties meant when they submitted their agreement to the court:
In dissolution actions, the trial court is allowed to accept stipulations crafted by the parties and incorporate them into its order or decree. General Statutes § 46b-66. As a result, "[a] stipulated judgment is not a judicial determination of any litigated right . . . It may be defined as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction . . . The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute or disputes at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement."
Because a stipulation is considered a contract, "[o]ur interpretation of a separation agreement that is incorporated into a dissolution decree is guided by the general principles governing the construction of contracts." (Internal quotation marks omitted.) Thus, if "there is definitive contract language, the determination of what the parties intended by their . . . commitments is a question of law [over which our review is plenary]." (Internal quotation marks omitted. "[T]he language used [in a contract] must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous . . . Finally, in construing contracts, we give effect to all the language included therein, as the law of contract interpretation . . . militates against interpreting a contract in a way that renders a provision superfluous." . . . Therefore, "[w]hen interpreting a contract, we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result."
294 Conn. 384, 389-91 (Citations omitted.)
The pertinent definition of "pension," as set forth in Webster's New International Dictionary, 2d. Edition, is "a fixed sum paid regularly to a person, especially by an employer as a retirement benefit." Interestingly, the statute allowing this transfer under federal law, and known as the Uniformed Services Former Spouse Protection Act, 10 U.S.C. § 1408, does not use the word "pension." Instead, it treats of "disposable retired pay," defined at subsection (a)(4) as being "the total monthly retired pay to which a member is entitled." One aspect of construing a contract "as a whole," as Ahmadi requires, is that one consider the context from which its language emanates. "What is love?," for instance, is a question which might stymie eminent philosophers but which a tennis fan can answer in a heartbeat. In the military context, "what is a `pension'?" is a question which must be answered by reference to the federal legislation and case law construing that concept generally, and the military parlance informed by that body of law.
Plaintiff supplied this court with several authorities which she claims support her more expansive reading of the disputed term. Chief of these is G. Shulman, Qualified Domestic Relations Order Handbook, 2d Ed., Panel Publishers. The author explains how VSI and SSB payments to a military member are part of the overall plan for post-service compensation, and how these programs interrelate with what is commonly thought of as a "pension." In the civilian sector, one might assume that an early retirement incentive or a severance package are benefits incremental to an employee's vested pension entitlement. In the uniformed services, in contrast, Congress has legislated against double dipping and provided that a member who receives VSI experiences a corresponding offset against his pension; see 10 U.S.C. § 1175(e)(3)(a); whereas one who qualifies for SSB payments loses all entitlement to a pension.
Thus cited in plaintiff's brief. The citation does not note the date of its publication; this calls into question the currency of its information and fails to meet the standards of The Manual for Style for the Connecticut Courts. This omission is slight compared to that of defendant who, in spite of the novel, complicated, and important issue at stake here filed a brief citing no authority whatsoever on the central issue before the court.
The court's research indicates that both of these programs entered the field in the early 1990s when the Cold War had just ended, the world appeared to be headed into a long era of peace, and the pressing concern was to reduce an oversized military. In this 21st century, when robust retention bonuses have become the order of the day, one has to hope that the parties' investment in the resolution of this dispute provides some practical benefit to them.
There appears to be no Connecticut precedent on the precise question now before this court. Plaintiff relies upon two superior court decisions: Kelly v. Kelly, Docket Number FA91-0280457, Superior Court, Judicial District of Fairfield at Bridgeport (2002; Dewey, J.), and Morgan v. Morgan, Docket Number FA08-4108711, Judicial District of New London at Norwich, authored by the undersigned in 2009. Kelly involves a different intricacy of the military retirement system, but resolves that dispute by means of an order clarifying the original judgment's meaning. The Morgan case is inapposite, as the orders entered at the time of judgment expressly encompassed all of the forms of post-service pay at stake here, leaving no need for interpretation of what aspects of military retirement pay were contemplated by the orders.
The notion that a service man is entitled to only one defined sum upon retirement, regardless of nomenclature, has in the area of disability awards led to a large number of cases in the courts of several other states which are informative here. Like the programs at issue here, a service person's qualification for an early disability award comes at the expense of forfeiting an equivalent share of the individual's "pension." Frequently, following a dissolution of marriage in which a spouse is awarded a percentage of pension benefits, the service person puts in for disability pay which upon its commencement (or augmentation to a higher amount) lessens the pension payments. In a very forthright decision, the Supreme Court of Massachusetts, in Krapf v. Krapf, 439 Mass. 97, 786 N.E.2d 318 (2002), approved one solution to this problem in the form of a trial court's injunction prohibiting that service man from increasing his disability payments; to allow him to do this unilaterally, the court held, would have amounted to letting him dilute a property award made on the basis of his contract with his former spouse. In Stone v. Stone, (Ala.Civ.App. 2009), the Alabama Appeals Court concluded similarly, in a decision citing eight other states' courts to the same effect, and no contrary outcomes.
In Cifaldi v. Cifaldi, 118 Conn.App. 325 (2009), our Appellate Court recently reviewed a judgment involving a different aspect of the division of a military pension. This court cannot gainsay the Appellate Court's general observations about the importance of such pension benefits in this day and age:
It is well established that pension benefits are a form of property under General Statutes § 46b-81. Our Supreme Court has held "that `property' as used in § 46b-81, includes the right, contractual in nature, to receive vested pension benefits in the future." There is no question that a party's property interest in a pension is an important consideration in an allocation of property pursuant to a dissolution judgment. "Pension benefits are widely recognized as among the most valuable assets that parties have when a marriage ends . . . Pension benefits are an economic resource acquired with the fruits of the wage earner spouse's labors which would otherwise have been utilized by the parties during the marriage to purchase other deferred income assets . . . Both [spouses] have the same retirement goals and expectancies regarding the pension benefits as they would if they provided for their later years by using wage income to purchase other investments . . . It would be unfair and contrary to the purpose of the statute to strip the nonemployee spouse of the value of the retirement asset by precluding [the trial court] from evaluating its worth prior to adjudicating the property rights of the estranged marriage partners."
118 Conn.App. 325, 331-32 (Citations omitted.)
In this case, the chance that what plaintiff contracted for on April 8 could be stripped away from her later by defendant's availing himself of options beyond her control, with that opportunity accruing to him because this court unduly constricted the meaning of the word "pension," is unconscionable. This court finds that by virtue of the parties' agreement upon which its final orders were premised, the plaintiff is entitled to share in all "exit pay" to which her former husband is entitled.
The question remains as to whether her motion for clarification is sufficient to address this problem. Defendant argues that a change in the language from the decree to the QDRO constitutes an improper modification of the judgment. In Kremenitzer v. Kreminitzer, 81 Conn.App. 135 (2004), a similar argument failed. The trial court had ordered a QDRO with language not identical to that of the judgment, and its decision was upheld with the Appellate Court noting that ". . . [t]he right of the plaintiff to a portion of the defendant's retirement benefits was created by the separation agreement. The QDRO was necessary to implement the judgment that had incorporated the parties' agreement. The QDRO was the vehicle for enforcing the judgment of the court. Beyond our determination that the language of the QDRO differed from the language of the separation agreement and the judgment of dissolution as to the date of valuation, there is no necessity to discuss the intent of the signatories as to the QDRO. It is the intent of the parties when executing the separation agreement that controls our discussion . . . Thus, the claim of the defendant that the court impermissibly opened and modified a judgment must fail." 81 Conn.App. 135, 138-39. As Cifaldi informs us, a QDRO which follows a judgment ". . . is merely an administrative tool used to effectuate the transfer of marital property . . .," 118 Conn.App. 325, 332; the QDRO's terms thus must flow from the judgment and are not independent thereof.
The motion for clarification is granted, and the court finds that the QDRO submitted is a fair statement of the court's decree. The motion for contempt dated September 29 may be reclaimed by plaintiff for hearing unless defendant has signed the QDRO in its present form within twenty days of this order.