Barbara Klingman v. Roderick Winters (2010)

MEMORANDUM OF DECISION RE MOTION TO MODIFY WAGE EXECUTION

In the present case, the plaintiff, Barbara Klingman, was awarded $240,000 for injuries she sustained from a physical attack by the defendant, Roderick Winters.   The defendant declared bankruptcy, but the bankruptcy court found that the judgment was not subject to the bankruptcy exemptions.   A wage execution was entered against the defendant and the defendant's employer, the state of Connecticut.   The plaintiff was paid by weekly order of payment from July 25, 2007 until January 1, 2010.   Subsequently, the weekly payments ceased because the defendant retired.

The plaintiff applied for a new wage execution and an execution was issued by the court on April 29, 2010.   The execution was served on the payroll clerk but was returned wholly unsatisfied by reason of the defendant's retirement.   The state of Connecticut contends that it discontinued payments on the ground that the defendant was placed on hazardous duty disability retirement and, therefore, the execution was impermissible pursuant to General Statutes § 5-171.

The plaintiff seeks an order from the court that the defendant's retirement benefits are not exempt from the wage execution.   The plaintiff argues that the defendant's retirement payments can be garnished pursuant to General Statutes § 52-321a(b).  The plaintiff asserts that, under the particular circumstances of this case, her claim qualifies as an exception under § 5-171 and § 52-321a when the two sections are read together.   The plaintiff argues that although hazardous duty retirement benefits are “exempt from the claims of creditors” pursuant to § 5-171, the statute also provides that an exception exists when the exemption is contrary to the law governing the particular circumstance.   The plaintiff argues that, in this particular circumstance, a victim of a crime is permitted recovery as an exception pursuant to § 52-321a.

For the purposes of this motion, the plaintiff concedes that the defendant's retirement benefit is subject to § 5-171, which provides:  “Any assignment by a member or beneficiary of any amount payable to either under the terms of this chapter shall be null and void.   Each such payment shall be for the support of the member or beneficiary entitled thereto and shall be exempt from the claims of creditors of such member and beneficiary.   If the provisions of this section are contrary to the law governing a particular circumstance, then, as to that circumstance, any payment shall be exempt to the maximum extent permitted by law.”   This section, therefore, is a general non-assignment section, which provides an explicit exception when the “law governing a particular circumstance” allows for the assignment.

The plaintiff argues that the circumstances in the present case are governed by § 52-321a(b).  Section 52-321a applies, among other things, to “any pension plan, annuity or insurance contract or similar arrangement ․ established by federal or state statute for federal, state or municipal employees for the primary purpose of providing benefits upon retirement by reason of age, health or length of service ․” General Statutes § 52-321a(a)(5).   Subsection (a) of the statute exempts plans, such as the one in the present case, “from the claims of all creditors of such participant or beneficiary.”  General Statutes § 52-321a(a).   Subsection (b), however, provides, in relevant part:  “Nothing in this section ․ shall impair the rights of a victim of crime to proceed under Section 52-361a to recover damages awarded by a court of competent jurisdiction from any federal, state or municipal pension, annuity or insurance contract or similar arrangement described in subdivision (5) of subsection (a) of this section when such damages are the result of a crime committed by a participant or beneficiary of such pension, annuity or insurance contract or similar arrangement ․”

The specific issue of a victim's right to enforce a withholding order pursuant to § 52-321a has not been addressed by the appellate courts, nor have the appellate courts considered the general applicability of the statute at length.   A few judges of the Superior Court have addressed the applicability of § 52-321a with respect to alimony and child support obligations.   These cases have consistently found that pension benefits covered by § 52-321a are not exempt from income withholding orders.   See, e.g., Sinicropi v. Sinicropi, Superior Court, Judicial District of Hartford, Docket No. FA 970717130 (September 8, 1998, Barall, J.) [23 Conn. L. Rptr. 49];  Foley v. Foley, Superior Court, Judicial District of Danbury, Docket No. CV 323519 (November 4, 1997, Axelrod, J.) (20 Conn. L. Rptr. 644).

In this case, the underlying judgment was entered on a four-count complaint claiming negligence, reckless and wanton assault, intentional assault and violation of the Violence Against Women Act of 1995, 42 USC § 13981, based upon Connecticut General Statutes § 53a-59 or § 53a-60.

The Bankruptcy Court (Murphy Weil, J.) issued a memorandum of decision on the dischargeability of this claim.  In re Roderick N. Winters, Case No. 04-32780, Bankruptcy Court, District of Connecticut (February 22, 2006).   The Bankruptcy Court heard testimony from the plaintiff and the defendant.   It stated, “The court credits the plaintiff's description of the debtor's attack upon her, which attack the court finds to be vicious and brutal ․ The debtor inflicted a wilful and malicious injury upon the plaintiff ․” p. 13.

This court finds that the plaintiff, Barbara E. Klingman, is a victim of a crime and thus her claim for a wage execution upon the pension benefits of the defendant, Roderick N. Winters, falls within the statutory exception § 52-321(b).  A wage execution may issue against the retirement benefits payment to the defendant by the State of Connecticut.

Cosgrove, J.

Cosgrove, Emmet L., J.