Paul Trottier v. Laura Trottier (2010)

MEMORANDUM OF DECISION

PROCEDURAL BACKGROUND

The record reveals the parties were divorced on April 19, 2007 after a limited contested trial on April 19, 2007.   The plaintiff husband was self-represented and defendant wife was represented by counsel.

The orders in the oral memorandum of decision which gives rise to these proceedings are as follows.

“The husband's ING IRA and State of Connecticut pension will be divided equally by way of a QDRO as of today's date values.”

The defendant filed a motion for clarification (number 142) regarding the plaintiff husband's pension with the state of Connecticut.

The defendant filed a motion for contempt (number 141) alleging that the plaintiff husband failed to pay his alimony and child support payments in November 2009 and instead, engaged in self-help, using that money to pay a joint home mortgage and joint boat payment, payments which the defendant wife was obligated to pay pursuant to the court order.

The plaintiff filed a motion for contempt (number 147) arguing that the defendant has refused to sign the QDRO as tendered.

The plaintiff filed a motion for order (number 148) to allow the plaintiff to make payments directly to joint creditors and deduct those loan payments from the alimony and support payments if the loan payments are in arrears.

The plaintiff filed a motion for modification (number 139) seeking a modification of his child support order.

The parties appeared, with counsel, on March 10, 2010 and the court heard testimony from both parties and arguments of counsel.   Counsel were given until April 7, 2010 to file briefs, which they did.

Regarding the pension, the plaintiff argues that on the date of dissolution, he was entitled to a payout of $1600 per month and pursuant to the court order, the defendant wife is entitled to $800 per month.   The defendant wife argues that in the nearly three years since the time of the dissolution, the plaintiff's pension has increased in value and that she should equally share the benefit of that increase.   This increase is due to the plaintiff having worked more time, the state of Connecticut having classified his position as one involving “hazardous duty” and his having taken a “golden handshake” early retirement, which now entitles him to a retirement of $4000 per month.

FINDINGS OF FACT

The court finds the following facts proven by a fair preponderance of the evidence.

1. The parties were divorced on April 19, 2007.

2. The plaintiff husband was an employee of the state of Connecticut with a vested pension, not yet in pay status.

3. On the date of dissolution the husband's pension would pay to him $1600 per month upon his retirement.

4. The parties were ordered to divide equally said pension “as of today's date values.”

5. After the date of dissolution, the parties realized that the state of Connecticut would not divide the pension by way of a QDRO, but rather, would allocate to each party a defined monthly benefit.

6. Since the date of dissolution, the plaintiff has worked longer, his job classification was determined to be “hazardous duty” and he retired early pursuant to an incentive program which enhanced his pension benefit.   Due to these changes, he receives a benefit of $4000 per month.

7. If the parties had promptly complied with the court order of April 19, 2007 and divided the plaintiff's pension benefit at the time of dissolution, the defendant would have received a benefit of $800 per month.

8. It was not the court's intention to allow the defendant to receive enhanced benefits accrued after the date of dissolution.

LEGAL DISCUSSION

The court in Sunbury v. Sunbury, 216 Conn. 673 (1990), ruled, “In the absence of any exceptional intervening circumstances occurring ․ 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.”  Id. at 676.   Moreover, the Sunbury court specifically found that a post-dissolution increase in the value of an asset was not such an exceptional circumstance.   While the decision in Ranfone v. Ranfone, 103 Conn.App. 243, 248 (2007), permits the trial court to divide a retirement asset based on post-dissolution contributions, such is not mandated nor even typical.   The husband worked longer and gave up his job security, paycheck and benefits for an enhanced retirement payout.   It would be inequitable under the circumstances to then force him to share those enhanced benefits which were the fruits of that trade-off.   The court in Mickey v. Mickey, 292 Conn. 597 (2009), confronted the issue of whether, the payee, who was awarded 40% of the payor's retirement benefits should receive 40% of his later enhanced disability benefits.   The court concluded that the portion of the payor's retirement benefits, attributable to his disability, did not constitute property subject to dissolution within the meaning of section 46b-81 at the time of the dissolution.  “Under 46b-81, a court has the authority to divide only the presently existing property interests of the parties at the time of dissolution and such division, once made, cannot be altered.”  Id. at 615.   Similarly, the plaintiff in the instant case had, at the time of dissolution, no concrete, enforceable right to the post- dissolution enhanced benefits now being disputed;  they were not then existing but rather, came into being due to his continued working, the state of Connecticut's reclassification of his retirement benefits and the state of Connecticut's decision to offer early retirement enhanced benefits in exchange for his giving up his continued employment.

ORDERS

1. The parties shall execute whatever documents are necessary to effectuate a payment of $800 per month to the defendant from the state of Connecticut.

2. The plaintiff shall pay to the defendant, within 60 days, a sum of money equal to $800 per month commencing on the date that he began receiving retirement benefits until the day that she begins receiving them automatically from the state of Connecticut.

3. The motions for contempt are both denied.

4. Regarding the motion for modification of child support, the parties are ordered to complete current financial affidavits and child support guidelines worksheets evidencing the income which will now be realized from the state of Connecticut pension pursuant to these orders.   The motion shall be heard, at the regular short calendar in Rockville, before whatever judge is available, regarding this issue.

5. Regarding the motion for contempt (number 141), the court finds that the plaintiff is not in contempt but that he was unauthorized to make joint loan payments rather than child support and alimony payments.   In the end, he paid the correct amount but caused the defendant to have a cash flow problem.   Moreover, it appears that his tardy payments cause further cash flow problems.   The parties agreed, on the record, that henceforth, the plaintiff could make the payments by electronic funds transfer from his bank to the defendant's bank.   Thus, the plaintiff is ordered to make his alimony and child support payments electronically on the first and last day of each month.   If the defendant is more than 30 days in arrears on the joint home mortgage payment, the plaintiff shall give her seven days written notice of his intention to pay said debt directly and thereafter, make said payments himself if said payment has not been made and deduct that sum from his alimony and support payments.

Shluger, J.

Shluger, Kenneth L., J.