Opinion
No. FA 01-0558297
May 31, 2005
MEMORANDUM OF DECISION AS TO MOTION TO CLARIFY
The motion before the court is a motion to clarify the memorandum of decision dated October 7, 2003. This present subject motion is dated February 25, 2005 and was filed on March 1, 2005. This motion to clarify seeks to have the court clarify certain orders concerning a certain CSRS Pension Survivor Benefit. The actual date of the court's memorandum of decision is October 7, 2003 and was filed on October 9, 2003. The court's memorandum of decision dated October 7, 2003 is thirty pages in length. The numerous court's orders were contained on pages 25, 26, 27, 28, 29 and 30 of the aforementioned memorandum of decision. No appeal was taken from the court's memorandum of decision, dated October 7, 2003, as best the court can divine.
The court heard the subject motion to clarify on May 20, 2005. Counsel for the plaintiff and the defendant were present as was the plaintiff, Arthur F. Flynn. The court heard the arguments of counsel and the plaintiff testified briefly at the hearing. The defendant did not appear in person but was represented by counsel.
From the testimony elicited on May 20, 2005, the court notes that the plaintiff presently has a medical problem; that he is retired; and according to the testimony of the plaintiff that he has complied with all of the terms and conditions of the memorandum of decision of October 7, 2003. The plaintiff touched on the financial cost in the event that the court were to consider the instant motion to clarify.
The memorandum of decision issued on October 7, 2003 of course speaks for itself with regard to the orders at that time entered by the court as concerns the plaintiff's civil service retirement system pension, the Air Force retirement, prospective benefits, life insurance, alimony and other matters.
As best the court can divine, the present request contained within the motion to clarify has to do with regard to a request that the plaintiff maintain the defendant as the survivor beneficiary on the CSRS pension. The plaintiff testified that he had complied with all of the terms and conditions as set forth in the memorandum of decision referred to and that the defendant wife was presently receiving all of the retirement benefits ordered by the court and all paperwork incident thereto, including QDROs, have been implemented and are in place.
The instant motion to clarify would seem to treat an additional distinct benefit. The court notes that there was an earlier motion to clarify with regard to other issues but that was filed within four months of the date of the memorandum of decision. It would appear that in the 2003 memorandum of decision that the court did not grant survivorship benefits to the defendant with regard to the CSRS pension.
Our courts allow for motions for clarification. "Motions for interpretation or clarification although not specifically described in the rules of practice are commonly considered by trial courts and are procedurally proper." Rome v. Album, 73 Conn.App. 103 (2002), 807 A.2d 1017 and from that citation, "but where the movant's request would cause a substantive modification of an existing judgment a motion to open or set aside the judgment would normally be necessary." Miller v. Miller, 16 Conn.App. 412 (1988).
In any event, it would appear that authority suggests that all motions to clarify shall be filed within four months of the date of the decision. "We conclude that the law does not prevent the exercise of trial court's authority to correct an omission and orders to transferring personal property in a matter completely consistent with its earlier findings as to its disposition if clearly brought to the attention of the court within four months by a motion that apprizes all interested parties of the relief sought." Rome v. Album, supra. This present motion comes to the court after the expiration of approximately 19 or 20 months from the date of the memorandum of decision. Query as to the court's authority to entertain the subject motion to clarify. From the case of Rosato v. Rosato, 40 Conn.App. 533 (1996) in that proceeding the wife who had been awarded a survivorship interest in the plaintiff's pension later filed a motion for clarification asking the court to set forth the exact percentage of interest in the plaintiff's pension which is due the defendant. From the appellate finding, 671 A.2d 832, "the language of the 1988 judgment is clear and unambiguous. The judgment did not assign a percentage, a fixed amount or a fraction of the plaintiff's pension to the defendant. It simply allowed the defendant to retain the survivorship benefits in the plaintiff's pension that she acquired as a spouse. By changing the award from a survivorship interest to a fixed percentage of the plaintiff's current pension, the trial court assigned property from one party to another. Such an assignment may be done only at the time of the dissolution decree which was rendered." See also Holombe v. Holcombe, 22 Conn.App. 363 (1990). "Where judicial error exists, C.G.S. 52-212a imposes a time limit so that a judgment may not be modified in manners of substance beyond a period of four months after the judgment has become final." See also Sablosky v. Sablosky, 258 Conn. 713 (2001) ". . . but where the movant's request would cause a substantive modification of an existing judgment a motion to open or set aside the judgment would normally be necessary." See Miller v. Miller, 16 Conn.App. 412 (1988).
From C.G.S. 46b-81(a) the same provides in relevant part as follows:
"At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under Section 45b-45, the court may assign to either the husband or wife all or any part of the estate of the other." General Statutes 52-212a provides in relevant part: "Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless the motion to open or set aside is filed within four months following the day on which it was rendered or passed. It would appear that the defendant in the instant proceeding in filing a motion for clarification is really making a request for an assignment of a property interest at a time when the court has no jurisdiction to do so."
The court has carefully considered the content of the lengthy, comprehensive briefs filed by counsel for both parties in this proceeding.
The motion to clarify memorandum of decision filed by the defendant dated February 25, 2005 is therefore respectfully denied.
Austin, JTR.