Opinion
No. FA-96-0538827-S
March 20, 2006
The marriage of the parties was dissolved by agreement on February 27, 1998. The parties' separation agreement was incorporated into the judgment entered by the court (Austin, J.T.R.). The judgment provided for a distribution of the defendant's retirement benefits from Federal Civil Service employment as follows:
The Defendant shall elect a retirement benefit which designates the Plaintiff as the sole, irrevocable, survivor beneficiary for a Forty Five (45%) Percent survivor benefit annuity. The Defendant shall make this election upon his retirement and shall forward confirming, duplicate documentation to the Plaintiff contemporaneous with the filing of his retirement option elections.
Based upon the Defendant's election of a Forty Five (45%) Percent survivor annuity to the Plaintiff, the Plaintiff shall be named as the Alternate Payee to receive, as a property settlement, one-third (1/3) of the Defendant's accrued retirement benefit, calculated as of the date of decree of dissolution of marriage, together with any cost of living or standard increments or accruals which shall accrue to her allocated share. The Plaintiff's benefit shall be one-third (1/3) of the highest gross lifetime annuity benefit due to the Defendant as of the date of dissolution of marriage minus the premium cost of electing the Forty Five (45%) Percent survivor benefit option which cost shall be calculated as of the date of dissolution of marriage.
The Plaintiff shall be responsible for the drafting of the Qualified Domestic Relations Order and the Defendant shall cooperate in providing all requested documentation and applicable names, titles, and addresses for the Plan Administrator. The Court shall retain jurisdiction over this pension division order until the order is properly qualified in accordance with the intentions of the parties and the requirements of the Plan Administrator.
The federal government version of a QDRO is known as a COAP — Court Order Acceptable for Processing.
(Judgment, pgs. 5, 6; emphasis added.)
Subsequently, a Domestic Relations Order entitled a Court Order Acceptable for Processing (COAP), was prepared, accepted by the court and certified by counsel for both parties. The COAP provides that the Office of Personnel Management is to calculate the defendant's annuity based upon his credited service and final salary as of February 27, 1998, the date of dissolution, and the plaintiff is to be assigned one-third of the benefit. The COAP further provides that the plaintiff is awarded a former spouse annuity equal to forty-five (45%) percent of the defendant's annuity. The full cost associated with the former spouse annuity is to be deducted from the plaintiff's share of the pension she is to receive monthly. The COAP does not include any method of calculation of the premium costs for which the plaintiff is responsible.
The defendant retired from Federal Civil Service in 2004, and the implementation of the judgment and the COAP commenced. The plaintiff began to receive her monthly benefit, which was reduced by the full cost of the survivor annuity she was to receive, but the cost of the annuity was calculated as of the date of the defendant's retirement.
The plaintiff filed the motion to open and correct the COAP, postjudgment on September 27, 2005, seeking relief on two counts. First, the plaintiff seeks to have the court correct the COAP so that her benefit is reduced by the cost of the survivor benefit calculated as of the date of the dissolution, and not the date of retirement. Second, the plaintiff is asking the court to further correct the COAP to provide a provision for the plaintiff to name a survivor beneficiary for her assigned interest in the annuity. The defendant objects to any correction of the COAP, arguing that the court does not have jurisdiction to correct and/or modify the COAP because the pension is a property settlement, which is non-modifiable. He further maintains that the plaintiff is barred from seeking relief under the defenses of laches, collateral estoppel and/or unclean hands.
The plaintiff filed a series of motions on January 10, 2005, one of which was a motion to open and correct the qualified domestic relations order, postjudgment. The defendant answered with a series of objections to those motions filed on April 18, 2005. He also filed a motion for attorneys fees on July 13, 2005 (Motion 191), which the court shall address in this decision. The plaintiff then filed a subsequent motion to open and correct the QDRO on September 27, 2005, which is the subject of this decision.
"Once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented." Clemente v. Clemente, 34 Conn.App. 641, 644 n. 5, 643 A.2d 874 (1994) (citations and internal quotations omitted). "Every presumption is given in favor of jurisdiction." Laurer v. Zoning Commission, 220 Conn. 455, 460, 600 A.2d 310 (1991). "Thus, if a motion can fairly be construed as seeking an effectuation of the judgment rather than a modification of the terms of the property settlement, [the] court must favor that interpretation." Woodward v. Woodward, 44 Conn.App. 99, 101-02, 683 A.2d 1010 (1997) (quotations and internal citations omitted).
"The court's judgment in an action for dissolution of a marriage is final and binding upon the parties, where no appeal is taken therefrom, unless and to the extent that statutes, the common law or rules of court permit the setting aside or modification of that judgment." Bunche v. Bunche, 180 Conn. 285, 287-88, 429 A.2d 874 (1980). General Statutes § 46b-86(a) provides in relevant part: "Unless and to the extent that the decree precludes modifications, any final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be continued, set aside, altered or modified by said court . . . This section shall not apply to [property] assignments under section 46b-81 . . ." The statute, therefore, "deprives the Superior Court of continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of property of one party to the other party under General Statutes § 46b-81." Bunche v. Bunche, supra, 289.
There can be no question that the original division of the defendant's pension constituted an assignment of property. Bender v. Bender, 258 Conn. 733, 785 A.2d 197 (2001); Krafick v. Krafick, 234 Conn. 783, 663 A.2d 365 (1995). As such, it is not modifiable. The resolution of the issue turns on whether the relief that the plaintiff is seeking is a modification of the court's order or merely enforcing the terms of the property distribution for which the original dissolution decree provided. A modification is "[a] change; an alteration or amendment which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact." Jaser v. Jaser, 37 Conn.App. 194, 202, 655 A.2d 790 (1995) (internal quotation marks omitted). If a party's motion "can fairly be construed as seeking an effectuation of the judgment rather than a modification of the terms of the property settlement, [the] court must favor that interpretation." (Internal quotation marks omitted.) Woodward v. Woodward, 44 Conn.App. 99, 102, 686 A.2d 1010 (1997).
This court has the obligation to construe the language of the 1998 judgment and the subsequent COAP. The language in both the parties' separation agreement and the court's judgment clearly and unambiguously states that the plaintiff shall bear the cost of the premium for electing the Forty-Five (45%) percent survivor benefit option which cost shall be calculated as of the date of the dissolution. The COAP states that the "full cost associated with the Former Spouse survivor annuity will be deducted from the Former Spouse's share of the employee's annuity." (COAP, paragraph 10-B.) The plaintiff testified that the amount deducted from her benefit is the cost calculated as of the date of retirement. Since this is not what the parties agreed, the COAP must be corrected to reflect that the cost of the survivor benefit option is to be calculated as of the date of the dissolution.
The court shall not address the defendant's argument regarding the defenses of laches, collateral estoppel or unjust enrichment as the court cannot find any evidence to indicate any inexcusable delay by the plaintiff or prejudice toward the defendant. See, Bozzi v. Bozzi, 177 Conn. 232, 413 A.2d 834 (1979).
Although the plaintiff has requested exhaustive relief, the question before this court is quite narrow. The court was not presented with any evidence to indicate that the relief sought, i.e., deduction of the cost calculated as of the date of dissolution from the pension benefit, can be accomplished. Therefore, the court shall not enter any orders with regard to repayment of any sums which may have been incorrectly deducted from the plaintiff's monthly benefit. The court shall only enter an order opening the decree to correct the COAP to provide the language for the proper calculation of the costs of the survivor annuity premium to be deducted from the plaintiff's assigned share of the retirement benefit, and an order that the corrected COAP be submitted to the Office of Policy and Management by the parties for processing.
The court heard no evidence as to whether or not OPM could or would calculate this cost at a date different from the date of the determination of the benefit.¹
¹ The court in Rosato noted that the Code of Federal Regulations provided that OPM will honor an order to continue payments of a former spouse's share of a retirement annuity to a child or children of a retiree after the former spouse's death, the federal regulation did not enlarge the court's statutory authority pursuant to § 46b-81. Id.
The court by agreement of the parties retained jurisdiction to enter a COAP which conforms to the terms of the judgment and to be accepted by OPM. The court has no jurisdiction to enter further relief. As to the second request by the plaintiff seeking an order of the court to further correct the COAP to provide a provision for the plaintiff to name a survivor beneficiary for her assigned interest in the annuity, the court finds there was no provision in the dissolution decree for the plaintiff to designate a survivor. This is not a pre-retirement death benefit for which she might be entitled to name a survivor.
The plaintiff cites the Louisiana decision of Couvillion v. Couvillion, 769 So.2d 747 (La.Ct.App. 5 Cir. 2000), where the court allowed the wife to designate a successor for the pension benefits awarded to her in the dissolution, stating that she "earned a share of ALL retirement benefits acquired during the marriage; her share of such benefits is owned by her." This is not a case dividing the parties' community property but merely the parties' contractual agreement to divide the properties. The court's jurisdiction is limited to enforcing the parties' agreement nor would the court have the power to award pension rights to a third party. See, Rosato v. Rosato, 77 Conn.App. 9, 17-18, 822 A.2d 974 (2003), where the court reversed the trial court's order that the wife's share of the husband's monthly pension be assigned to the parties' children upon the defendant's death, stating ". . . [w]hile the court has the authority to pass title of real property from one spouse to another or to a third party at the time of marital dissolution, the court's authority to transfer any part of each spouse's estate is limited to transfers between spouses. [This] also is apparent that to the extent that the defendant's rights to receive pension benefits during her lifetime can be said to be a part of her estate for purposes of [General Statutes] § 46b-81, this estate is comprised in no part of real property." Id., 19. Therefore, the court denies the plaintiff's second request.
The defendant seeks an order of counsel fees. In considering whether to award attorneys fees in this matter, this court has reviewed the evidence relating to all motions that were the subject of this hearing, including the parties' financial affidavits and other evidence relating to income. In light of the foregoing, the request for attorneys fees and costs are denied.
ORDER
1. Motion #191 is granted in part and denied in part. The judgment dated February 27, 1998, shall be opened to correct the COAP to provide the language for the calculation of the costs of the survivor annuity benefit premium as of the date of the dissolution of marriage.
2. The corrected COAP, certified by the parties and accepted by the court, shall be submitted to OPM by the parties for processing.
3. Motion #190 is denied.