Cunningham v. Cunningham
| Decision Date | 04 May 2021 |
| Docket Number | AC 43297 |
| Citation | 254 A.3d 330,204 Conn.App. 366 |
| Parties | Mary CUNNINGHAM v. Gerard CUNNINGHAM |
| Court | Connecticut Court of Appeals |
Joseph T. O'Connor, Stamford, for the appellant (plaintiff).
Thomas M. Shanley, Greenwich, for the appellee (defendant).
The plaintiff, Mary Cunningham, appeals from the judgment of the trial court granting the motion of the defendant, Gerard Cunningham, for a domestic relations order relating to distributions from his pension plan. On appeal, the plaintiff claims that the court improperly modified the property division set forth in the parties’ 2011 dissolution judgment by (1) requiring the plaintiff, at the defendant's direction, to assign a portion of her 50 percent joint survivor annuity from the defendant's pension benefit to a third party, (2) requiring the plaintiff to share in the cost of the 50 percent joint survivor annuity election under the pension plan, and (3) adopting a formula that could result in an unjustified reduction to the plaintiff's marital portion of the retirement benefit that she receives under the pension plan. We disagree and affirm the judgment of the trial court.
The following facts and procedural history are necessary to our determination of the issues presented on appeal. On March 9, 2011, the trial court rendered a dissolution judgment, terminating the parties’ marriage. In its memorandum of decision, the court issued orders regarding the distribution of the nonqualified, nonfunded pension plan benefit (pension benefit) provided to the defendant by his employer, Deloitte Consulting, LLC (Deloitte). In particular, the court ordered: "Effective as of the date of this memorandum of decision, that portion of the [defendant's] Deloitte ... [non]qualified, [non]funded [p]lan ... through his employment and vested and accrued as of the date of this memorandum of decision, net after an adjustment for federal and state taxes in the event that the [defendant] incurs any such tax on the portion distributed to the [plaintiff], shall be divided by means of [a] domestic relations order ... which shall be prepared by the [defendant's attorney] or at his direction, at his sole expense, 50 percent to the [defendant] and 50 percent to the [plaintiff]." (Emphasis omitted.) The court further ordered: (Emphasis omitted.) In its memorandum of decision, the court also noted that "[n]either party offered any evidence as to the present value of this retirement benefit, however, each has offered a proposed distribution of this marital asset, if, as and when it is paid."
The plaintiff appealed from that judgment of dissolution, claiming, inter alia, that the trial court abused its discretion in the manner in which it divided the pension benefit. See Cunningham v. Cunningham , 140 Conn. App. 676, 678, 59 A.3d 874 (2013). This court disagreed and affirmed the trial court's judgment. See id.
In March, 2019, the defendant filed a motion seeking the entry of a domestic relations order with regard to the pension benefit. The defendant attached to his motion a proposed order. Attached to the proposed order as exhibit A was a schedule, the terms of which were agreed to by the parties on the defendant's retirement on June 2, 2018, setting forth the plaintiff's share of the defendant's pension benefit as of the date of dissolution. According to exhibit A, after various deductions, the plaintiff was to receive 41 percent of the net pension benefit, based on the value of the pension benefit at the time of dissolution, to be paid to the defendant, or $84,261. This amount was subject to annual cost of living adjustments. Relevant to this appeal, the proposed order addressed three issues. First, the order provided that, if the defendant predeceased the plaintiff, the plaintiff's survivor benefit would be capped at $84,261 plus cost of living adjustments. Pursuant to the proposed order, any benefit above that amount would be paid either by Deloitte or the plaintiff to "the account designated by the [defendant] at his discretion, before his death or if not by the [defendant's] executor." The defendant requested this language because, although the $84,261 the plaintiff was to receive reflected the value of the plaintiff's survivor benefit based on the value of the defendant's pension benefit on the date of the marital dissolution in 2011, the defendant continued to work at Deloitte for seven years postdissolution, thereby increasing the value of his pension benefit. The defendant's proposed order would preclude the plaintiff from receiving a survivor's benefit based on the increased value postdissolution and would allow the defendant to designate a third party to receive that portion of the survivor benefit based on the postdissolution increase in the value of the pension benefit.
Second, the proposed order provided that the plaintiff and the defendant would share equally the cost of the defendant's selecting the survivor annuity option for his pension benefit. The "cost" of the election simply was that the defendant's pension benefit during his life was reduced because a benefit would continue to be paid to the plaintiff or other designee on the defendant's death.
Third, the proposed order provided that the parties would share "equally in any future reductions implemented by Deloitte ...." The defendant included this language because the pension plan was nonfunded, and, as a result, his pension benefit was tied to Deloitte's economic performance. Thus, it was possible that, if Deloitte had a poor economic year, his pension benefit would be reduced from the base number in place at the time he retired. In that event, the defendant sought in the proposed order that the plaintiff's share of the pension benefit be reduced by the same percentage that his share would be reduced.
The plaintiff filed an objection to the defendant's motion on several grounds. As to the proposal that capped the plaintiff's survivor benefit at $84,261, the plaintiff argued that any such order would constitute an impermissible modification of the court's property distribution orders entered at the time of dissolution. As to the proposal that the parties share equally the cost of the survivor benefit election, the plaintiff argued that the order would impose an obligation on her not contemplated by the court's dissolution judgment. Finally, with respect to the defendant's proposed language that the parties equally share the risk of a reduction in the defendant's pension benefit, the plaintiff argued that the proposed order was speculative and unnecessary because there had been no such reduction and, if one were to occur, the proposed order improperly applied such reduction evenly to both parties when the defendant should bear the risk of any reduction so long as the value of his pension benefit, even after any reduction, is greater than the value of the benefit at the time of the dissolution of the marriage.
The court conducted a hearing on the defendant's motion on May 23, 2019. After receiving additional briefs from the parties, the court ordered that the defendant make certain changes to his proposed domestic relations order and resubmit it to the court for its signature. None of the changes requested by the court related to the provisions proposed by the defendant that are the subject of this appeal. On September 18, 2019, after receiving the revised proposed order from the defendant, the trial court entered a domestic relations order regarding the pension benefit (2019 order), which incorporated the language from the defendant's proposed order. Incorporated into the court's order is the same exhibit A that was attached to the defendant's proposed order. This appeal followed.
The plaintiff first claims on appeal that the court improperly modified the property distribution set forth in the dissolution judgment by requiring her to assign a portion of the 50 percent joint survivor annuity to a third party, at the defendant's direction, where the dissolution judgment required the defendant simply to name the plaintiff as beneficiary of a 50 percent joint survivor annuity. The defendant maintains that the 2019 order was not a modification of the property distribution orders entered as part of the dissolution judgment, but was, instead, necessary to effectuate the dissolution judgment, to ensure that the plaintiff would receive her share of the pension...
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