Dennis Sullivan v. Cheryl Sullivan (2013)

MEMORANDUM OF DECISION RE MOTION FOR RECONSIDERATION AND ORDER # 148

In this post-judgment action, the defendant, Cheryl Sullivan, has filed a document entitled “Motion for Reconsideration and Order.”   Therein, the defendant asks this court to “reconsider its orders with regard to the Qualified Domestic Relations Order entered in this case and make such further orders as the court deems necessary.”   For the reasons that follow, the court denies the requests of this motion.

This case had previously been before this court on a post-judgment contempt motion that the defendant had brought against her ex-husband, Dennis Sullivan.   This court made the following findings, which are still pertinent:

“The plaintiff, Dennis Sullivan, and the defendant, Cheryl Sullivan, signed a settlement agreement/stipulation, dated November 29, 2011, which was incorporated, on the same date, into the judgment of dissolution of their marriage.   One of the terms of the agreement provided for a division of the plaintiff's Meriden police pension plan.   A Qualified Domestic Relations Order (‘QDRO’) was drafted based on the settlement agreement and was approved by the court on April 16, 2012.   Pursuant to the terms of the settlement agreement, the QDRO assigned to the defendant 50 percent of the plaintiff's gross monthly benefit, prior to reduction for health insurance and taxes.   In the settlement agreement, the parties stipulated the pension to be $4,577.46 per month, half of which would be $2,288.73 per month, before any deductions for health insurance and taxes.   On August 6, 2012, the defendant filed a motion for contempt against the plaintiff for his alleged failure to comply with the QDRO. A hearing was conducted before the court on September 10, 2012, at which the defendant was represented by counsel and the plaintiff represented himself.

“The defendant asserts that the plaintiff wilfully has not paid 50 percent of his pension benefits as required by the QDRO. At the hearing, a letter from Attorney McMahon, who drafted the QDRO, was submitted.   The letter states that McMahon was informed by the city of Meriden that it could not honor the QDRO because the amount assigned to the defendant exceed 100 percent of the net monthly payment.   According to McMahon, the city initially interpreted the QDRO as follows:  The plaintiff's gross monthly pension is $3,176.31, of which $3,010.22 is the base pension and $166.09 is related to additional pays for longevity, life and holiday.   The plaintiff is also credited with $1,626.86 per month toward his health premiums.   This is for “member plus one” coverage.   The plaintiff is responsible for the cost of any additional coverage, which apparently totals $2,089.86 per month for family coverage.   McMahon states that the city does not believe that the $1,626.86 health premium credit should be considered part of the divisible pension because it is only included as pension income so that the premium can be taxed.   At the hearing, the personnel director of the city of Meriden testified in accordance with McMahon's letter, i.e., that the $1,626.86 is not a pension benefit, but rather is added for tax purposes only.

“The defendant argues that she is entitled to the amount that the parties stipulated to, i.e., $2,288.73, contending that the $1,626.86 is part of the plaintiff's pension benefits.   The plaintiff on the other hand, contends that the $1,626.86 is not part of his pension benefits, and that he has not violated the court order and, thus, cannot be held in contempt.”  Sullivan v. Sullivan, Superior Court, judicial district of New Haven at Meriden, Docket No. 104013715 (October 17, 2012, J. Fischer, J.).

This court held that the language at issue, which had been drafted when both parties were represented by counsel, was ambiguous.

“Moreover, there appears to be ambiguity in the order at issue here.   This court notes that the separation agreement states in Article XII, section 12.1 in pertinent part:  ‘Husband is receiving a monthly benefit from the [c]ity of Meriden, currently in the gross amount of $4,577.46 monthly.   By way of a [QDRO], the husband shall transfer to the wife [50 percent] of his interest of the gross amount of his pension benefits (currently [half] equally $2,288.73 monthly) before any deductions for health insurance and taxes.   Additionally, as part of the [QDRO] she shall be entitled to receive [50 percent] of the gross amount of any cost of living allowances the husband is entitled to receive from the plan.’

“In section 12.2, the agreement provides:  ‘Until such time as the QDRO referenced above goes into effect, the [p]laintiff will continue to pay the [d]efendant one-half of his net pension check directly (said amount being non-taxable to the [d]efendant), and forward a copy of whatever paycheck stub accompanies his check.’

“The testimony adduced at the hearing makes clear that the plaintiff is not ‘receiving’ $1,626.86 as a pension benefit, and in fact does not receive $1,626.86 at all, rather it is only attributed to him by the city as an accounting practice.   It is unclear then, how the plaintiff can transfer 50 percent of an amount that he never receives.   Further doubt is cast by section 12.3 which grants the defendant 50 percent of the net amount that the plaintiff actually receives until such time as the QDRO goes into effect.   Thus, the court finds that the agreement is ambiguous as to the actual amount that the defendant was to receive.   Accordingly, the motion for contempt is denied for that reason also.   Under the circumstances of this case the court declines to go further and interpret the agreement to discern the true intent of the parties because the motion for contempt did not seek such relief.¹ ”  Sullivan v. Sullivan, supra, Superior Court, Docket No. 10 4013715.

Such a determination will require further proceedings consistent with making such a finding.”  Id.

The defendant did not appeal this court's decision, which was issued on October 17, 2012.   On February 15, 2013, as noted, the defendant filed the instant document entitled:  “Motion for Reconsideration and Order” which comes before this court unadorned with any legal authority or analysis.

The matter appeared on short calendar on April 29, 2013, at which the defendant was represented by counsel and the plaintiff represented himself.   In response to the court's concern about its authority to open and modify the judgment, defense counsel repeatedly denied that this was an attempt to open and modify the judgment, despite the fact that the document expressly asks this court to “reconsider the QDRO entered in this case and make any modifications and/orders necessary to carry out the judgment in this case.”  (Emphasis added).

This court's first task is to attempt to characterize the “motion” the defendant has placed before it.   The defendant did not appeal this court's denial of the motion for contempt, which was based upon the finding that the agreement was ambiguous.   Indeed, the language at issue then and now is not the language of the court in rendering its judgment, but rather the language of the parties in their stipulated agreement.   Initially then, there is nothing for this court to “reconsider.”   Rather, it is the intent of the parties that matters here because a stipulated agreement that has been incorporated into a dissolution decree “must be regarded as a contract and construed in accordance with the general principles governing contracts.  Issler v. Issler, 250 Conn. 226, 234–35, 737 A.2d 383 (1999).   When construing a contract, [a court must] seek to determine the intent of the parties ‘from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction.”  (Emphasis in original.)  Isham v. Isham, 292 Conn. 170, 180, 972 A.2d 228 (2009).   Inasmuch as this court has never been properly asked to determine in the intent of parties,² much less ruled upon it, there is nothing to reconsider in this regard.

As to the defendant's request that it “make any modification and/or orders necessary to carry out the judgment,” the Appellate Court has held that a failure of the trial court to carry out the intent of a property disbursement pursuant to a stipulated agreement is in effect an impermissible modification of a property settlement.   See Cifaldi v. Cifaldi, 118 Conn.App. 325, 332–33, 983 A.2d 293 (2009).   Inasmuch as this court has already found that the agreement of the parties is ambiguous in this regard, it cannot make a reasoned finding as to what was the intent of the parties.   Consequently, any action it might take would be without jurisdiction because it would essentially open and modify the judgment without just cause.   See Sanzo v. Sanzo, 137 Conn.App. 216, 221 48 A.3d 689 (2012).   Indeed, if it determined that there was a mutual mistake between the parties, then the entire rubric of the financial allocations may have to be re-examined.   See Sunbury v. Sunbury, 210 Conn. 170, 173–75, 553 A.2d 612 (1989);  Ehrenkranz v. Ehrenkranz, 2 Conn.App. 416, 424, 479 A.2d 826 (1984);  Malarney v. Malarney, Superior Court, judicial district of New Haven at Meriden, Docket No. 06 4006029 (February 11, 2009, B.Fischer, J.).

For all of the foregoing reasons, the defendant's motion is denied.

BY THE COURT

Jack W. Fischer, Judge

FOOTNOTES

FN1. “A contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed ․ Gina M.G. v. William C., 77 Conn.App. 582, 592 (2003).   Here, the plaintiff filed a motion for contempt, only.   The plaintiff's motion does not seek any other relief and, thus, this court cannot interpret the plaintiff's motion as a request for post-judgment orders.   Cf. Cifaldi v. Cifaldi, 118 Conn.App. 325, 329–30 n.6, 983 A.2d 293 (2009) (although the motion was captioned a motion for contempt, consistent with the relief sought therein, it would have been more accurate for the plaintiff to have captioned the motion as a motion for contempt and for order.   Despite the inaccurate label, the [trial] court properly considered the substance of the relief sought in the subject motion, which requested, in addition to an order for contempt, post-judgment orders for payment to the plaintiff of the portions of the defendant's pensions to which she was entitled).   A contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy.  Tufano v. Tufano, 18 Conn.App. 119, 124, 556 A.2d 1036 (1989).“Even if the parties made a mutual mistake in coming to the agreement;  see, e.g., Richards v. Richards, 78 Conn.App. 734, cert. denied, 266 Conn. 922 (2003);  such grounds have not been alleged nor has such relief been requested and this court cannot open the judgment sua sponte.   See Sanzo v. Sanzo, 137 Conn.[App. 216, 221, 48 A.3d 689 (2012) ].”  (Internal quotation marks omitted.)  Sullivan v. Sullivan, supra, Superior Court, Docket No. 10 4013715..  FN1. “A contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed ․ Gina M.G. v. William C., 77 Conn.App. 582, 592 (2003).   Here, the plaintiff filed a motion for contempt, only.   The plaintiff's motion does not seek any other relief and, thus, this court cannot interpret the plaintiff's motion as a request for post-judgment orders.   Cf. Cifaldi v. Cifaldi, 118 Conn.App. 325, 329–30 n.6, 983 A.2d 293 (2009) (although the motion was captioned a motion for contempt, consistent with the relief sought therein, it would have been more accurate for the plaintiff to have captioned the motion as a motion for contempt and for order.   Despite the inaccurate label, the [trial] court properly considered the substance of the relief sought in the subject motion, which requested, in addition to an order for contempt, post-judgment orders for payment to the plaintiff of the portions of the defendant's pensions to which she was entitled).   A contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy.  Tufano v. Tufano, 18 Conn.App. 119, 124, 556 A.2d 1036 (1989).“Even if the parties made a mutual mistake in coming to the agreement;  see, e.g., Richards v. Richards, 78 Conn.App. 734, cert. denied, 266 Conn. 922 (2003);  such grounds have not been alleged nor has such relief been requested and this court cannot open the judgment sua sponte.   See Sanzo v. Sanzo, 137 Conn.[App. 216, 221, 48 A.3d 689 (2012) ].”  (Internal quotation marks omitted.)  Sullivan v. Sullivan, supra, Superior Court, Docket No. 10 4013715.

FN2. See e.g., Coscina v. Coscina, 24 Conn.App. 190, 192–93, 587 A.2d 159 (1991) (use of declaratory judgment to ascertain intent in separation agreement was proper)..  FN2. See e.g., Coscina v. Coscina, 24 Conn.App. 190, 192–93, 587 A.2d 159 (1991) (use of declaratory judgment to ascertain intent in separation agreement was proper).

Fischer, Jack W., J.