Mickey v. Mickey

Decision Date21 July 2009
Docket NumberNo. 18126.,18126.
Citation292 Conn. 597,974 A.2d 641
CourtConnecticut Supreme Court
PartiesJacqueline MICKEY v. Darrell D. MICKEY.
974 A.2d 641
292 Conn. 597
Jacqueline MICKEY
Darrell D. MICKEY.
No. 18126.
Supreme Court of Connecticut.
Argued September 16, 2008.
Decided July 21, 2009.

[974 A.2d 645]

Campbell D. Barrett, with whom were Jon T. Kukucka and, on the brief, C. Michael Budlong, Hartford, Kevin W. Hadfield and Felicia C. Hunt, certified legal intern, for the appellant (defendant).

Steven R. Dembo, with whom, on the brief, were P. Jo Anne Burgh and Barbara D. Aaron, Hartford, for the appellee (plaintiff).



292 Conn. 599

The principal issue in this appeal is whether disability benefits awarded under General Statutes § 5-192p1 as a result of a disability incurred after a marriage has been dissolved constitute distributable marital property under General Statutes § 46b-81.2 The defendant, Darrell D. Mickey, appeals3 from the trial court's judgment denying his motion for clarification of that court's financial orders, pursuant to which the

292 Conn. 600

plaintiff, Jacqueline Mickey, was granted 40 percent of the defendant's monthly retirement benefits. On appeal, the defendant claims that, in denying his motion for clarification, the trial court improperly concluded that it had authority under § 46b-81 to distribute the defendant's potential disability benefits at the time of dissolution. Specifically, the defendant contends that his disability benefits did not constitute distributable property under § 46b-81 because, at the time of dissolution, such benefits were no more than a mere expectancy and not a sufficiently concrete interest. The defendant also asserts that his disability benefits are not distributable because they were not actually awarded until after the date of dissolution, and they represent a substitute for lost wages rather than deferred compensation. We agree with the defendant that his disability benefits are beyond the scope of property subject to distribution under § 46b-81 and, accordingly, reverse the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The marriage of the parties was dissolved on September 21, 2001. At the time of dissolution,

974 A.2d 646

the defendant had been employed by the state of Connecticut as a correction officer for approximately fourteen years. Pursuant to his employment with the state, the defendant was enrolled in tier II of the state employees retirement system. See General Statutes § 5-192e et seq. Due to the nature of his job, the defendant potentially was eligible for hazardous duty retirement under General Statutes § 5-192n,4 and, as with all other state employees enrolled in tier II, also was eligible for normal retirement benefits under General Statutes § 5-192 l, and disability retirement benefits under § 5-192p

292 Conn. 601

in the event that he became disabled during the course of his employment.

In its memorandum of decision issued in conjunction with the dissolution of the parties' marriage, the trial court, Dyer, J., ordered that "[t]he plaintiff shall be entitled to, and the defendant's ... pension plan shall pay to her, 40 percent of the defendant's monthly retirement benefit payment. It is the court's intention that the plaintiff receive 40 percent of the defendant's monthly retirement benefit payment under the contributory hazardous duty retirement plan should he qualify for [the] same, or 40 percent of the defendant's monthly retirement benefit payment under the noncontributory tier II plan should he fail to qualify for a hazardous duty pension." Despite specifically distributing the defendant's potential hazardous duty retirement benefits, however, the trial court did not mention any potential disability benefits that the defendant may have subsequently become entitled to under the plan.

Following the dissolution of the parties' marriage, the defendant suffered an injury in the course of his employment on February 28, 2002, which rendered him disabled and eventually forced him to retire. The defendant began receiving retirement benefits under the state employees retirement system in June, 2005, which was made retroactive to July 1, 2003, in the amount of $990 per month.5 The defendant's monthly benefit subsequently was increased to $2382.30 in November, 2005, in recognition of the enhanced6 benefit that he was

292 Conn. 602

entitled to receive as a result of the state's certification of his disability under § 5-192p.7 The plaintiff thereafter continued to receive 40 percent of the defendant's entire monthly benefit payment, including that portion attributable to the defendant's disability benefits.

974 A.2d 647

The defendant subsequently filed a motion for clarification on January 13, 2006, requesting that the trial court clarify that (1) it did not intend to distribute the defendant's disability benefits as part of its original financial orders, and (2) regardless of its intent, the trial court did not have the statutory authority to distribute those benefits because they were acquired after dissolution. After the trial court, Solomon, J., denied the plaintiff's motion to dismiss the defendant's motion for clarification, the trial court, Dyer, J.,8 subsequently denied the defendant's motion for clarification, concluding, on the basis of our decision in Travelers Ins. Co. v. Pondi-Salik, 262 Conn. 746, 817 A.2d 663 (2003), that the defendant's disability benefits properly were characterized as being part of his retirement benefits, which the trial court clearly and unambiguously had distributed as part of its financial orders. The trial court further determined that, because retirement benefits are properly distributable under § 46b-81, the court had the authority to distribute those retirement benefits attributable to the defendant's disability, and that the defendant, therefore, was not entitled to any relief. This appeal followed.


As an initial matter, the plaintiff claims that the defendant's appeal is procedurally improper and, therefore,

292 Conn. 603

that we should not address its merits. The plaintiff asserts that (1) the defendant's motion for clarification is an improper collateral attack on the judgment of dissolution, (2) by failing to appeal from the judgment of dissolution, the defendant has waived any claim that the trial court lacked statutory authority to render that judgment, and (3) the defendant has not provided an adequate record for review. We disagree and conclude that the defendant's appeal is properly before us.9


The plaintiff first claims that, because the defendant's motion for clarification is more properly characterized as a motion to reopen and modify the terms of the judgment of dissolution, it is an untimely collateral attack on that judgment. We disagree.

It is well established that "[t]he court's judgment in an action for dissolution of a marriage is final and binding [on] the parties, where no appeal is taken therefrom, unless and to the extent that

974 A.2d 648

statutes, the common law or rules of [practice] permit the setting aside or

292 Conn. 604

modification of that judgment. Under Practice Book [§ 17-4], a civil judgment may be opened or set aside ... [when] a motion seeking to do so is filed within four months from the date of its rendition.... Absent waiver, consent or other submission to jurisdiction, however, a court is without jurisdiction to modify or correct a judgment, in other than clerical respects, after the expiration of [that four month period].... After the expiration of the four month period provided by [Practice Book § 17-4] a judgment may not be vacated [on] the sole ground that it is erroneous in matter of law, except by a court exercising appellate or revisory jurisdiction, unless such action is authorized by statute or unless the error is one going to the jurisdiction of the court rendering the judgment." (Citation omitted; internal quotation marks omitted.) Misinonile v. Misinonile, 190 Conn. 132, 134, 459 A.2d 518 (1983).

Even beyond the four month time frame set forth in Practice Book § 17-4, however, courts have "continuing jurisdiction to fashion a remedy appropriate to the vindication of a prior ... judgment ... pursuant to [their] inherent powers...." (Citation omitted; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Plan & Zoning Commission, 260 Conn. 232, 239, 796 A.2d 1164 (2002). When an ambiguity in the language of a prior judgment has arisen as a result of postjudgment events, therefore, a trial court may, at any time, exercise its "continuing jurisdiction to effectuate its prior [judgment] ... by interpreting [the] ambiguous judgment and entering orders to effectuate the judgment as interpreted...." Id., at 246, 796 A.2d 1164. In cases in which execution of the original judgment occurs over a period of years, a motion for clarification is an appropriate procedural vehicle to ensure that the original judgment is properly effectuated. See id., at 244, 796 A.2d 1164 ("[M]otions for interpretation or clarification, although not specifically described in the rules of practice, are

292 Conn. 605

commonly considered by trial courts and are procedurally proper.... There is no time restriction imposed on the filing of a motion for clarification."). Motions for clarification may not, however, be used to modify or to alter the substantive terms of a prior judgment; see In re Haley B., 262 Conn. 406, 413, 815 A.2d 113 (2003); see also AvalonBay Communities, Inc. v. Plan & Zoning Commission, supra, at 250, 796 A.2d 1164; and "we look to the substance of the relief sought by the motion rather than the form" to determine whether a motion is properly characterized as one seeking a clarification or a modification. In re Haley B., supra, at 413, 815 A.2d 113.

In the present case, the defendant filed a motion for clarification, asserting that postdissolution events revealed a latent ambiguity in the dissolution judgment as to whether the trial court...

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