Opinion
No. FA 93-0313933-S
May 24, 2010
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR ORDER AND DEFENDANT'S MOTION TO OPEN JUDGMENT
Many of the facts that give rise to these motions are not in dispute. The marriage between the parties was dissolved on October 18, 1994, and a stipulation dated October 18, 1994 was approved of and incorporated into the judgment file.
Paragraph four of that stipulation provided in part as follows: "There is, furthermore, a military pension which was acquired by the husband, both prior and during the course of the marriage. The wife shall be entitled to a portion of said military pension . . . This shall be accomplished by a qualified domestic relations order and the parties request that the court retain jurisdiction until such time as the qualified domestic relations order/pension assignment has been accepted and is in place with the appropriate pension administrator."
The parties agree that the defendant's portion of the plaintiff's military pension amounts to 16.7 percent. The defendant's motion for order alleges the following:
1. The parties entered into a stipulation dated October 18, 1994 (Attached hereto as Exhibit 1), which was approved and ordered by this court on October 18, 1994.
2. On page four, paragraph four of the Stipulation, the parties agreed to divide the Husband's military pension to be accomplished by Qualified Domestic Relations Order.
3. On August 2, 2001, at age 60 (Sixty) the Defendant was entitled to receive his retired pay benefits, and he, in-fact, began receiving his retired pay benefits within 60 days of said date (see Department of the Air Force Letter Dated 12/6/93 Attached hereto as Exhibit 2).
4. To the best of the Defendant's knowledge and belief neither she nor Mr. Brown ever signed a QDRO and no QDRO was ever submitted to the Defense Finance and Accounting Service (see Department of Defense Finance and Accounting Service Letter Dated 12/23/2008 and Letter Dated 1/9/2009 Attached hereto as Exhibits 3 and 4 respectively).
5. To date, the Defendant has not received any payment from the Defense Finance and Accounting Service concerning the Plaintiff's military retirement pay nor has the Plaintiff made any payment to the Defendant concerning the military retirement pay he has been receiving since August 2, 2001.
6. Lacking the Plaintiff's cooperation, the Defendant submitted a copy of the Stipulation dated October 18, 1994 to the Defense and Accounting Service which Stipulation made reference to a "pension" and did not specify a specific or fixed amount for division of the Plaintiff's retired pay. For those reasons the Stipulation was not acceptable to effect the division of benefits (see Defense and Accounting Service letter dated 11/07/09 Attached hereto as Exhibit 5).
7. On November 18, 2009 the undersigned drafted a proposed QDRO dated 11/18/09 (Attached hereto as Exhibit 6) which was forwarded to Attorney Kenneth Taylor for review.
8. Attorney Kenneth Taylor later advised the undersigned that the Plaintiff took issue with paragraph 11 of the QDRO dated 11/18/09 which indicates an overpayment to the Plaintiff is recoverable by the Defendant.
The defendant's motion to open judgment alleges as follows. Per stipulation agreement dated October 18, 1994 (page 4, par. 4), parties were to have in place a QDRO for the husband's military retirement benefit. Benefits were to be paid beginning August 2, 2001. The plaintiff/husband will not sign the attached QDRO which allows recouping of arrearage, and defendant seeks a court order compelling plaintiff to pay arrearage to defendant.
The defendant has not received any part of her 16.7 percent. In fact, the file reflects that a domestic relations order was signed on December 2, 1996 by counsel for the plaintiff, and the defendant's attorney at that time, and signed by the court on December 2, 1996. A certified copy of that order was issued to the attorney for the defendant on December 2, 1996.
On May 12, 1997, the defendant received a letter from the Defense Finance and Accounting Center that stated in part as follows:
We have received your application for a portion of the retired/retainer pay of the above named member as a division of property under the Uniformed Services Former Spouses' Protection Act ( 10 USC Section 1408). All requirements under the act and regulations have been met . . . Payments will tentatively commence sixty to ninety days after the date the member retires and begins receiving retired/retainer pay.
The defendant received a letter from her attorney dated July 24, 1997 enclosing the recent correspondence from the Defense Finance and Accounting Service and it requested that she confirm with her attorney's office that she received the letter and if she has received the letter, the matter of the military pension would now be complete. She believed that as a result of those two letters that there was nothing else she had to do in order to receive her military retirement benefit. The defendant wrote to the plaintiff at his Scottsdale, Arizona address in June of 2000 stating in part as follows: "I have recently married and it will no longer be necessary to send checks."
The plaintiff moved from his Scottsdale, Arizona address to his current address in Cave Creek, Arizona in 2002. In 2001, the defendant learned that the plaintiff would be going for training with United Airlines, which indicated to her that he was going to continue to work for the airline. She did not know after 2001 when he would be retiring from United Airlines and believed that he was still working for United Airlines in 2001. In 2008, the defendant began notifying the military in an attempt to collect her retirement benefits after reviewing her divorce papers. The plaintiff received a letter from the Air Force regarding the defendant's interest in his pension plan in 2008.
The plaintiff was born on August 2, 1941. In August of 2001, he received a statement from the military telling him how much his retirement benefit would be and what the federal income tax deduction would be. There was nothing in the statement that indicated the defendant's 16.7 percent was being deducted. The plaintiff retired as a United Airlines pilot on August 31, 2001. The defendant believed that pilots were allowed to continue to work as co-pilots and fly for several more years after age 60. She assumed that the training that he was going for in 2001 was training to allow him to continue to fly for United Airlines, and that he would not commence to take his military pension until he retired as a United Airlines pilot. Since 2008, the efforts that the defendant has made to have her share of the plaintiff's pension paid to her were to contact the government, and fill out paperwork, and send it to the government. She received a letter back from the government saying that she would have to go through the court in order to get a qualified domestic relations order issued to them in order to get anything at all started. When the parties started the divorce proceedings, they received a letter from the Air Force Reserve Center showing that as of that date, the defendant's share in the plaintiff's retirement would be $250 monthly. When the plaintiff retired on August 1, 2001, there had been a COLA increase in his retirement. He computed the defendant's 16.7 percent benefit to be approximately $330 per month. The plaintiff never inquired of the defendant or the military at any time after he received his statement from the military in August of 2001 as to whether or not she was receiving her 16.7 percent share. The plaintiff received his military retirement benefit monthly since August 1, 2001. He will receive that benefit until he dies. He receives cost of living increases that usually start the first of the year. He has received some annual cost of living increases since August 1, 2001, but not every year. Following the receipt of the letter from the defendant to the plaintiff in June of 2000, the plaintiff claims that it was his understanding that the defendant had given up her claim to the 16.7 percent. The court finds that there is no basis for that claim. The letter to him says that because she had recently married it would not be necessary for him to send checks to her. He always understood that he would not be sending to the defendant checks for her 16.7 percent military retirement benefit, but that those checks would come directly from the government. The approximate amount that should have been received by her since August of 2001 was $36,000 plus her share of cost of living increases.
The defendant's motion for order seeks to have a QDRO signed by the plaintiff's attorney. In view of the fact that there is a signed QDRO in the file, the court does not see any need to have a new QDRO signed at this time. If for any reason the Defense Finance and Accounting Center will not accept the signed QDRO that is in the file, then the court orders that a new QDRO be prepared by counsel for the defendant and signed by counsel for the defendant and counsel for the plaintiff identical to the one that is presently in the file.
The defendant's motion for order also seeks payment for the arrearage due to her. The defendant's motion to open judgment also seeks an order compelling the plaintiff to pay arrearages to her. The defendant raises the claim of laches and equitable estoppel. The defense of laches consists of an inexcusable delay which prejudices the party. There must have first been a delay that was inexcusable and second, that delay must have prejudiced the plaintiff. The determination that a defendant has been guilty of laches is one of fact for the trier. The mere lapse of time does not constitute laches unless it results in prejudice to the plaintiff as where, for example, the plaintiff is led to change his position with respect to a matter in question. From all the evidence presented, the court finds that the plaintiff has not proven the defense of laches. The defense of equitable estoppel is a claim of estoppel that is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce the other party to believe that certain facts exist and act on that belief and the other party must change its position in reliance on those facts, thereby incurring some injury. It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth and that he not only did not know the true state of things but also lacked any reasonable available means of acquiring knowledge. The court finds that the plaintiff has failed to prove the defense of equitable estoppel.
The plaintiff takes the position that there should be a domestic relations order that is signed by the parties that goes forward from the date of the hearing before this court on March 29, 2010. In view of the fact that there is a domestic relations order already in the file signed by the necessary parties, the court overrules that claim. The plaintiff also takes the position of any benefit above and beyond what the plaintiff received from the date that he was notified basically about August of 2009 that he should pay that back amount, because that was when he was on notice that he was getting too much.
The court finds that insofar as the COLA adjustments are concerned that the defendant is entitled to receive her percentage of the COLA adjustments. The stipulation between the parties gave to the defendant a percentage amount of the plaintiff's retirement pay and not a fixed amount of his pay. For instance, if the separation agreement had said that she is entitled to receive $300 monthly from his retirement pay, then that is the only amount she would have been entitled to receive whether his retirement pay increased or decreased. On the other hand, the separation agreement said that she was entitled to receive 16.7 percent of his retirement pay. There was nothing to indicate that he was to receive 83.3 percent of his retirement pay plus the full amount of his COLA or that she was to receive 16.7 percent of his retirement pay plus the full amount of the COLA. The agreement gave to her 16.7 percent of his retirement pay and the court interprets that to mean that she also would receive 16.7 percent of his COLA. One of the recognized methods for distributing pensions involves delay in distribution until the pension matures. Under the "Present Division," the percentage share of the pension benefit is determined to which the non-employee spouse is entitled. The court may then, through a QDRO for pensions covered by ERISA or some equivalent if the non-ERISA plan permits, presently divide or assign the pension benefits between the spouses. The percentage share is of the pension benefit to which the non-employee spouse is entitled. A broad construction of the 16.7 percent division is consistent with the purpose of § 46b-81, namely to recognize that marriage is, among other things, a shared enterprise or joint undertaking in the nature of a partnership to which both spouses contribute — directly and indirectly, financially and non-financially — the fruits of which are distributable at divorce. Krafick v. Krafick, 234 Conn. 783, 793-95, 663 A.2d 365 (1995). One of the fruits of the plaintiff's plan is cost of living increases, for which the defendant should share. Section 46b-81 requires that assets be divided at the time of entering a decree dissolving a marriage. That requires that the defendant's 16.7 percent share of the plaintiff's retirement plan be effective as of the date of dissolution.
The issue of retroactivity and cost of living as it relates to the division of a pension plan is similar to the issue involved in Rosato v. Rosato, 77 Conn.App. 9, 822 A.2d 974 (2003). In that case the trial court entered orders in 2001 on remand from the state Supreme Court arising out of the judgment of dissolution on July 11, 1988. The orders of the remand trial court entered in 2001 were entered retroactive to July 11, 1988, in dividing a pension plan, and found an arrearage from July 11, 1988, and also ordered that the share of the pension plan to the non-employee spouse included cost of living adjustments received by the employee spouse retroactive to July 11, 1988. Those orders were upheld by the Appellate Court in 77 Conn.App. 9. The court, therefore, enters the following orders.
ORDERS
1. The parties did not present evidence to the court as to the exact amount of the arrearage either including or excluding cost of living increases. The court therefore retains jurisdiction to hold a subsequent hearing in the event the parties are unable to agree as to that amount. Any request for such a subsequent hearing must be filed by October 15, 2010 or that right is waived.
2. The defendant is ordered to forward to the Defense Finance and Accounting Center a copy of its letter of May 12, 1997, as well as a certified copy of the QDRO dated December 2, 1996. It is possible that the Defense Finance and Accounting Center will pay to the defendant her 16.7 percent share of the plaintiff's pension plan together with COLA retroactive to the date he commenced to receive his military pension on August 1, 2001. If that should occur then there is no arrearage to be paid by the plaintiff to the defendant. In view of the fact that the letter from the Defense Finance and Accounting Center referred to a sixty-to ninety-day period of time before payments would commence, the court is not requiring the plaintiff to pay any arrearage to the defendant until August 31, 2010. The defendant is ordered to notify the plaintiff by certified mail, return receipt, or registered mail, return receipt, any correspondence that she receives from the Defense Finance and Accounting Center.
3. The court does not order any interest to be paid by the plaintiff to the defendant on the arrearage.
4. In ordering that the full amount of the arrearage be paid by the plaintiff to the defendant in the event the Defense Finance and Accounting Center does not retroactively commence her 16.7 percent payments to August 1, 2001 together with COLA the court is under the assumption that the plaintiff will be able to deduct the full amount of that payment from his 2010 income tax return and the defendant will be required to pick up that full payment on her 2010 income tax return.