Opinion
No. FA87-0338522
April 30, 2004
MEMORANDUM OF DECISION
This matter was filed as a dissolution of marriage on November 19, 1987 before the Superior Court for the judicial district of Hartford. The plaintiff Barbara Hayes alleged in her complaint that the parties had been married on December 20, 1960. At the time of the filing of the action, the parties had two minor children who had been born in 1971 and in 1974.
There were several motions and orders entered into subsequent to the filing of the complaint as aforementioned. By a memorandum of decision dated March 13, 1990, the marriage of the parties was dissolved. At that time, the court indicated that the plaintiff wife was suffering from mental illness. In addition the judgment stated that she was "unlikely to find employment in the future and is likely to require indefinite psychiatric treatment." The court went on to note that the plaintiff wife was receiving social security payments.
The court, after noting that the parties have been married for thirty years, that the plaintiff wife had borne six children of the marriage, that she had a good employment record, ordered that alimony be paid. The initial alimony award was that the defendant husband pay "an amount equal to premiums required to be paid to maintain medical insurance available through the Teamsters under COBRA for the statutory maximum . . ." In addition, when the child support for the remaining minor child terminated the defendant husband was to pay additional alimony of $150 per week after deducting the cost of her medical insurance. Finally, when the COBRA coverage terminated, the defendant was to pay alimony in the amount of $150 per week until he "ceases active employment or the plaintiff once again resumed substantial employment."
The judgment also contained a provision that mandated the defendant upon the withdrawal of his retirement funds to pay alimony to the plaintiff in a sum equal to 40 percent of his Teamster's pension, and any other pension after deducting his income taxes due thereon.
After the entry of said judgment in March of 1990, the defendant filed a motion for modification in December of 1990. On January 16, 1991 said motion for modification was denied.
In September of 1991, the plaintiff filed a motion "to correct or open judgment." That motion argued that the order entered by the court as part of its judgment in March of 1990 should be construed as a Qualified Domestic Relations Order. That motion was granted on October 23, 1991. However, the motion was not served on the defendant. It does contain a certification that a copy was sent to the defendant at an address in the State of Washington, and at an address in Connecticut. It is conceded by counsel at oral argument on the instant motion that the order entered therein is not valid by reason of defective notice.
The file as reviewed by the court contains no entries between 1991 and 1995. However, the court is appraised that sometime prior to 1992 the defendant husband moved from the state of Connecticut to the state of Washington. In 1992, the plaintiff wife commenced an action in the state of Washington to enforce and/or modify the child support that was ordered by the court in Connecticut. It is unclear if she appeared personally for that purpose. It is the understanding of this court that she was always a resident of the State of Connecticut.
On April 28, 1992 an order was entered by the Superior Court of Washington, County of Thurston in response to a motion filed by the defendant husband That order modified (reduced) the Connecticut order as to child support effective February 01, 1992. The order further states that payments should be made through the Support Registry in Olympia, Washington and provisions were made for the payment of medical insurance and extraordinary health care expenses. That order further stated that "alimony awarded to the mother under paragraph 5 of the original decree of dissolution is terminated, effective February 1, 1992."
That order is submitted as a certified copy and has been marked as defendant's Exhibit A. The order on its first page in the upper right-hand corner indicates what is presumably a docket number (No. 91-3-01152-5) and then the notation "ORDER OF CHILD SUPPORT (ORS)," a signature and then in bold capital letters another notation which says " EX PARTE."
Elsewhere in the file, there appears a copy of a motion filed by an attorney, John Sinclair who is the attorney for the respondent (husband) requesting an order for default on the basis of an affidavit which states that the petitioner (wife) was served with a copy of a petition for modification of the decree of dissolution and that she had failed to plead and an order of default was requested.
Those circumstances set up several issues to be decided by this court. First, whether the state of Washington had a basis to exercise jurisdiction in this case. Secondly, was there a proper basis to terminate alimony as ordered by the Washington court. Thirdly, whether the order was in effect a QDRO or whether the judgment should be modified in order to enter a Qualified Domestic Relations Order.
The defendant husband claims that the plaintiff submitted to the jurisdiction of the Washington court by filing a motion pursuing the original child support order. The basis for jurisdiction over nonresidents in the state of Washington is established by the Uniform Interstate Family Support Act codified as RCW26.21.075. That act provides that jurisdiction may be exercised if an individual is personally served with a summons within that state, the individual submits to the jurisdiction by entering a general appearance or by filing a responsive document having the effect of waiving any contest to personal jurisdiction, the individual having resided with the child in the state, the individual resided in the state and provided prenatal expenses or support for the child, the residence of the child in the state and other reasons not relevant to the instant matter. See McLean v. McLean, 132 Wash.2d 301, 305, 937 P.2d 602 (1997). The facts of this case do not support the defendant's argument as to the jurisdiction of the Washington court. There is no evidence nor is there any indication that the plaintiff wife ever consented to the jurisdiction of the state of Washington. She did not enter a general appearance, nor did she file a responsive document to the defendant's petition for modification of the decree of dissolution. In fact, the opposite appears to be the case. The judgment was obtained by default. There was an indication that it was obtained ex parte. The plaintiff's own motion to pursue the Connecticut order of child support was apparently not acted upon and was filed prior to the defendant's motion for the modification of the divorce decree. The court concludes based upon these facts that said petition was not filed as a responsive document. Under the revised code of Washington § 26.21.075 the Washington court lacked jurisdiction over the plaintiff Barbara E. Hayes.
Assuming, arguendo, that jurisdiction was properly exercised, this court finds that there was no basis to terminate the alimony as ordered in the Washington decree. First of all, there is no finding nor is there any allegation contained within the pleadings submitted to this court that there was a substantial change in circumstances which would permit the modification of the periodic alimony award of the court. Further, the court finds that the conveyance of the defendant's pension benefits under the terms as outlined in this judgment was not periodic alimony but lump sum alimony which would not be subject to modification.
"On its face, the statutory scheme regarding financial orders appurtenant to dissolution proceedings prohibits the retention of jurisdiction over orders regarding lump sum alimony or the division of the marital estate . . ." Bender v. Bender, 258 Conn. 733, 761, 785 A.2d 197 (2001). The courts have consistently interpreted Connecticut General Statutes § 46b-86 to permit only modification of final orders for the periodic payment of permanent alimony. "Consequently, the statute confers authority on the trial courts to retain continuing jurisdiction over orders of periodic alimony, but not over lump sum alimony or property distributions pursuant to § 46b-81. Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980)." Bender v. Bender, supra 761-62.
The difference between an assignment of a specific portion of an estate and alimony is in their purposes. Clark, Domestic Relations (1968) § 14.8. The purpose of property assignment is equitably to divide the ownership of the party's properties. On the other hand, periodic and lump sum alimony is based primarily upon a continuing duty to support. Blake v. Blake, 211 Conn. 497; Billings v. Billings, 54 Conn. App. 142, 149-50 (1999). The alimony ordered pursuant to the terms of the judgment contains both periodic and lump sum alimony. The provision specifically providing for a payment of alimony directly from the proceeds of the defendant's pension is lump sum alimony. Accordingly, the court of the state of Washington lacked jurisdiction to modify said order.
The last issue before this court is whether the court should modify or reopen the judgment in order to enter a Qualified Domestic Relations Order. That issue was raised in the motion filed in 1991. That motion sought to correct the original judgment and would have provided the appropriate procedural avenue by which to accomplish that end. The issue of whether a court can enter a Qualified Domestic Relations Order as a post-judgment order is not as clear. It has been raised and discussed in some detail by the Connecticut Superior Court in the matter of Sinicropi v. Sinicropi, 23 Conn. L. Rptr. 49 (1998). The issue of assigning pension benefits in order to satisfy an order of the court has been discussed in Iannotti v. Iannotti, 3 Conn.Ops. 188 (1997). Further, the Supreme Court decision of Sienkiewicz v. Sienkiewicz, 178 Conn. 675, 425 A.2d 116 (1979), and other Superior Court decisions would seem to support a basis upon which the pension of the defendant husband could be attached for accomplishing an alimony order issued by the court.
"A QDRO is the exclusive means by which to assign a non-employee spouse all or any portion of pension benefits provided by a plan that is governed by the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq . . ." (Internal quotation marks omitted.) Bender v. Bender, 258 Conn. 733, 738 n. 3. "The Employment Retirement Income Security Act of 1974 (ERISA) was enacted to protect pension plan participants and their beneficiaries. (Internal citations omitted.) . . . In addition, ERISA § 206(d)(1) states that: "Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated." 29 U.S.C. § 1056(d)(1). Iannotti v. Iannotti, supra at 189.
The Retirement Equity Act of 1984 was passed by Congress in part to ensure that the anti-alienation provisions were not used to hinder the enforcement and effect of court orders with respect to child support and alimony. The act provides that such orders can be enforced pursuant to a Qualified Domestics Relations Order. See 29 U.S.C. § 1056 et seq.
An analysis of the requirements of the federal statute leads the court to conclude that the order entered in the judgment originally entered by this court is a Qualified Domestic Relations Order. It specifically does relate to payment of alimony, it is made pursuant to a state domestic relations law, it adequately identifies the parties and the amount of the plan to be paid to each of the parties and the manner of determining the percentage paid and further it identifies the specific pension plan which the judgment is to be paid from. This court in reviewing the reasoning of the court in Iannotti v. Iannotti and Sinicropi v. Sinicropi, supra, finds that a Qualified Domestic Relations Order should issue and that the pension benefits as originally ordered should be conveyed pursuant to such an order.
Robaina, J.