Barbara Bauer v. Steven Bauer (2013)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR STATUTORY INTEREST (269)

The parties were divorced by judgment entered after a contested trial.   The court, Alvord, J., issued a memorandum of decision on October 12, 2005.   The memorandum did not include an order for the defendant to divide his 403(b) plan with the plaintiff.   Thereafter the plaintiff moved for a clarification of the court's orders.   By memorandum of decision dated June 10, 2009, the court clarified its orders and ordered the defendant to equally share his New Britain General Hospital Pension and the Annuity 403(b) plan accrued over the course of the marriage.   The defendant filed an appeal of the clarification.

The defendant was successful in his appeal of the trial court's clarified memorandum of decision.¹  The plaintiff filed a petition for certiorari which was granted by the Supreme Court.   The Supreme Court reversed the decision of the Appellate Court and upheld the trial court's June 2009 ruling.²  The defendant shortly thereafter cooperated in the preparation and execution of a QDRO to effectuate the order.

The plaintiff now seeks statutory interest as damages under General Statutes § 37a–3a alleging the defendant wrongfully withheld from the plaintiff the 403(b) plan proceeds.

The court heard argument on the motion and the objection thereto and each party thereafter filed a supporting memorandum of law.

In this case, the court does not find that at the time of the judgment there was a clear and unambiguous order of the court for the sharing of the defendant's 403(b).  No clear order (and, arguably no order) for the sharing of the 403(b) plan was entered until 2009 and that order was appealed.   The defendant's appeal to the Appellate Court was successful and therefore as of 2011, there was again no clear order (or perhaps, again, any order) for the sharing of the 403(b) plan.   The Supreme Court, in 2013, issued a clear and unambiguous order for the sharing of the 403(b) plan and the defendant then complied.

The court has considered applicable statutory and common law, including, without limitation, the provisions of General Statutes § 371–3a, Behrns v. Behrns, 124 Conn.App. 794 (2010) and Carrano v. Yale–New Haven Hospital, 112 Conn.App. 767 (2009).   The award of statutory interest is discretionary and the court is to consider whether the party against whom interest is sought has wrongfully detained money due to the other party and the date on which the wrongful detention began to determine the time from which interest is to be calculated.   See Behrns, supra, 124 Conn.App. at 818.

The court does not find the withholding of the 403(b) plan funds to have been a wrongful detention of 403(b) proceeds by the defendant.   The plaintiff's motion is denied and the objection thereto sustained.

SO ORDERED.

BY THE COURT,

Olear, J.

FOOTNOTES

FN1. Bauer v. Bauer, 130 Conn.App. 185 (2011)..  FN1. Bauer v. Bauer, 130 Conn.App. 185 (2011).

FN2. Bauer v. Bauer, 308 Conn. 124 (2013)..  FN2. Bauer v. Bauer, 308 Conn. 124 (2013).

Olear, Leslie I., J.