Cunningham v. Cunningham ( 2021 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
MARY CUNNINGHAM v. GERARD CUNNINGHAM
(AC 43297)
Bright, C. J., and Elgo and Cradle, Js.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed to this court from the decision of the trial court granting
the defendant’s motion for a domestic relations order relating to distribu-
tions from his pension plan. In the trial court’s memorandum of decision
dissolving the parties’ marriage, the court ordered that the defendant’s
pension benefit held with his employer, D Co., be divided with the
plaintiff. The defendant subsequently filed a motion seeking the entry
of a domestic relations order with regard to the pension benefit, attached
to which was a proposed order and a schedule, the terms of which
were agreed to by the parties, setting forth the plaintiff’s share of the
defendant’s pension income as of the date of dissolution. The court
subsequently entered a domestic relations order that incorporated the
language of the defendant’s proposed order, and the plaintiff’s appeal
followed. Held:
1. The plaintiff’s claim that the trial court improperly modified the property
distribution set forth in the dissolution judgment by requiring her to
assign a portion of the joint survivor annuity to a third party was unavail-
ing: the court’s order effectuated the dissolution judgment by ensuring
that any survivor benefit that the plaintiff received is based on the value
of the pension benefit as of the time that the dissolution judgment was
rendered, which value was the basis of the parties’ calculation of the
plaintiff’s annual pension benefit; thus, the order did not impermissibly
modify the judgment, but merely protected its integrity and ensured
that the plaintiff did not receive an unintended windfall.
2. The plaintiff could not prevail on her claim that the court’s postjudgment
order constituted an impermissible modification of the dissolution judg-
ment because the order required the plaintiff to share in the cost of the
joint survivor annuity election: in the dissolution judgment, the court
ordered the defendant to elect a 50 percent joint and survivor annuity,
and the postjudgment order merely stated that the defendant had elected
payment in the form of a 50 percent joint and survivor annuity with the
plaintiff as the survivor annuitant and that both parties would share, in
proportion, the cost of the election of that annuity; the order did nothing
more than confirm that the election of the annuity resulted in a cost to
both parties in the form of a lesser current pension benefit.
3. The plaintiff’s claim that the trial court improperly ordered that both
parties would share equally in any future reductions in the defendant’s
pension benefit that may result from decreased contributions to the
pension plan by D Co. was unavailing: the plaintiff could not prevail in
her argument that the issue of future reductions in the defendant’s
pension benefit was not ripe for adjudication by the trial court because
the court’s order merely clarified and effectuated the dissolution judg-
ment and, to the extent that the court rendered a judgment addressing
a potential future contingency, it did so when it rendered the dissolution
judgment; moreover, the dissolution judgment provides that the parties
are to share equally in the pension benefits that were vested and accrued
as of the date that the dissolution judgment was rendered, and the
court’s postjudgment order was consistent with that judgment, which
was entered in order to protect the integrity of its original judgment
and to clarify any ambiguity that might result from D Co.’s reduction
or termination of such benefits, and substantial deference was accorded
to the court’s clarification of its own order, its interpretation of which
was not manifestly unreasonable; furthermore, the court did not improp-
erly modify the dissolution judgment by adopting a formula that could
result in a reduction of the plaintiff’s pension benefit, because the court’s
order did no more than effectuate the dissolution judgment by clarifying
that her share of the benefit was subject to reductions to the same
extent that the defendant was affected.
Argued November 19, 2020—officially released May 4, 2021
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk, where the court, Shay, J.,
rendered judgment dissolving the marriage and granting
certain other relief, from which the plaintiff appealed
to this court, Gruendel, Bear and Flynn, Js., which
affirmed the trial court’s judgment; thereafter, the court,
Shay, J., granted the defendant’s motion for a domestic
relations order, and the plaintiff appealed to this court.
Affirmed.
Joseph T. O’Connor, for the appellant (plaintiff).
Thomas M. Shanley, for the appellee (defendant).
Opinion
BRIGHT, C. J. 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 mari-
tal 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 neces-
sary 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, non-
funded pension plan benefit (pension benefit) provided
to the defendant by his employer, Deloitte Consulting,
LLC (Deloitte). In particular, the court ordered: ‘‘Effec-
tive as of the date of this memorandum of decision,
that portion of the [defendant’s] Deloitte . . . [non]-
qualified, [non]funded [p]lan . . . through his employ-
ment 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: ‘‘Unless the parties shall otherwise agree, the
[defendant] shall elect a 50 percent joint and survivor
annuity, so called, and in the event that the [defendant]
shall predecease the [plaintiff] prior to drawing his pen-
sion [benefit], the [plaintiff] shall be entitled to 100
percent of that portion of the [pre]retirement benefit
vested and accrued as of the date of this memorandum
of decision. Any benefit vesting and accruing thereafter
shall belong to the [defendant]. The foregoing notwith-
standing, it is the intention of the court that for purposes
of calculating the coverture period for either the retire-
ment or [pre]retirement benefit, that the numerator of
the fraction shall be equal to the length of time in whole
months, beginning with the first day of the month in
which the parties were married and ending with the
last day of the month in which the marriage was dis-
solved, and that the denominator shall be equal to the
length of time in whole months, beginning with the first
day of the month in which the [defendant] commenced
employment with Deloitte and ending with the last day
of the month in which the marriage was dissolved. The
[plaintiff] and her attorney shall be entitled to any and
all information regarding the [pension plan] necessary
for a review of the [domestic relations order]. The court
shall retain jurisdiction to deal with any issues which
may arise with regard to the preparation and filing of
the [domestic relations order] and the division of the
[pension benefit].’’ (Emphasis omitted.) In its memoran-
dum 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 dissolu-
tion, 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 retire-
ment 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 deduc-
tions, 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 prede-
ceased the plaintiff, the plaintiff’s survivor benefit
would be capped at $84,261 plus cost of living adjust-
ments. 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 [defen-
dant] 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 defen-
dant’s death.
Third, the proposed order provided that the parties
would share ‘‘equally in any future reductions imple-
mented 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 lan-
guage that the parties equally share the risk of a reduc-
tion 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 improp-
erly 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 rela-
tions 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 defen-
dant, the trial court entered a domestic relations order
regarding the pension benefit (2019 order), which incor-
porated 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.
I
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 distribu-
tion 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 benefit, while also preventing her
from receiving benefits that accrued after the date of
the dissolution judgment, in accordance with the clear
language of the dissolution judgment. We agree with
the defendant.
We begin with the relevant standard of review.
‘‘Because [t]he construction of a judgment is a question
of law for the court . . . our review of the . . . claim
is plenary. As a general rule, judgments are to be con-
strued in the same fashion as other written instruments.
. . . The determinative factor is the intention of the
court as gathered from all parts of the judgment. . . .
The interpretation of a judgment may involve the cir-
cumstances surrounding the making of the judgment.
. . . Effect must be given to that which is clearly
implied as well as to that which is expressed. . . . The
judgment should admit of a consistent construction as
a whole.’’ (Internal quotation marks omitted.) Perry v.
Perry, 156 Conn. App. 587, 593, 113 A.3d 132, cert.
denied, 317 Conn. 906, 114 A.3d 1220 (2015).
It is well established that pension benefits are a form
of property. See Thomasi v. Thomasi, 181 Conn. App.
822, 850, 188 A.3d 743 (2018). ‘‘Although the court does
not have the authority to modify a property assignment,
a court, after distributing property, which includes
assigning the debts and liabilities of the parties, does
have the authority to issue postjudgment orders effectu-
ating its judgment. . . . Where a decision as to whether
a court has subject matter jurisdiction is required, every
presumption favoring jurisdiction should be indulged.
. . . Thus, if the . . . motion . . . can fairly be con-
strued as seeking an effectuation of the judgment rather
than a modification of the terms of the property settle-
ment, this court must favor that interpretation. . . .
‘‘[W]e have recognized that it is within the equitable
powers of the trial court to fashion whatever orders
[are] required to protect the integrity of [its original]
judgment.’’ (Citation omitted; internal quotation marks
omitted.) O’Halpin v. O’Halpin, 144 Conn. App. 671,
677–78, 74 A.3d 465, cert. denied, 310 Conn. 952, 81
A.3d 1180 (2013).
‘‘A modification is [a] change; an alteration or amend-
ment which introduces new elements into the details,
or cancels some of them, but leaves the general purpose
and effect of the [subject matter] intact. . . . In con-
trast, an order effectuating an existing judgment allows
the court to protect the integrity of its original ruling
by ensuring the parties’ timely compliance therewith.’’
(Internal quotation marks omitted.) Morton v. Syriac,
196 Conn. App. 183, 199, 229 A.3d 1129, cert. denied,
335 Conn. 915, 229 A.3d 1045 (2020). ‘‘In order to deter-
mine the practical effect of the court’s order on the
original judgment, we must examine the terms of the
original judgment as well as the subsequent order.’’
Stechel v. Foster, 125 Conn. App. 441, 447, 8 A.3d 545(2010), cert. denied, 300 Conn. 904, 12 A.3d 572 (2011).
In its 2011 dissolution judgment, the court applied
the present division method of deferred distribution in
its determination of the percentage of the pension bene-
fit to which each of the parties was entitled.1 The court
awarded 50 percent of the defendant’s pension benefit
to the defendant and 50 percent of the benefit to the
plaintiff, subject to a coverture fraction formula pro-
vided by the court. The court further ordered that ‘‘the
[defendant] shall elect a 50 percent joint and survivor
annuity, so called, and in the event that the [defendant]
shall predecease the [plaintiff] prior to drawing his pen-
sion, the [plaintiff] shall be entitled to 100 percent of
that portion of the [pre]retirement benefit vested and
accrued as of the date of this memorandum of deci-
sion.’’2 (Emphasis omitted.) The judgment further pro-
vides that ‘‘[a]ny benefit vesting and accruing thereafter
shall belong to the [defendant].’’ The court retained
jurisdiction to deal with any issues that may arise with
regard to the preparation and filing of the domestic
relations order and the division of the pension benefit.
See Cunningham v. Cunningham, supra, 140 Conn.
App. 686 (‘‘[the trial court], having determined the for-
mula for the division of the assets received by the defen-
dant pursuant to the [pension plan], had discretion to
retain jurisdiction to effectuate its judgment by deal[-
ing] with any issues which may arise with regard to the
preparation and filing of the [domestic relations order]
and the division of the [nonqualified plan]’’ (internal
quotation marks omitted)).
It is undisputed that, because the pension plan was
a nonqualified, nonfunded plan, Deloitte has refused to
undertake the responsibility to pay the plaintiff her
percentage of the pension benefit directly. Conse-
quently, the defendant is required to make payments
to the plaintiff of her share of the pension benefit after
the defendant receives payments of the entire benefit
from Deloitte. It also is undisputed that the defendant
retired in 2018, and began receiving benefits pursuant
to the pension plan. Finally, it is undisputed that, at
that time, the parties agreed to the calculation of the
plaintiff’s share of the pension benefit and that agree-
ment is set forth in exhibit A to the 2019 order. As had
been ordered by the court, the defendant elected a 50
percent joint survivor annuity and has been making
direct payments to the plaintiff pursuant to the dissolu-
tion judgment and exhibit A.
At issue in this claim is paragraph 10 of the 2019
order. It provides in relevant part: ‘‘If [the defendant]
is the first to die, [the plaintiff] will receive both the
marital and the [non]marital portions of the survivor
annuity benefit directly from the [pension plan]. Upon
the [defendant’s] death, any and all joint survivor bene-
fits that exceed the monthly amount that was payable
to the [plaintiff] prior to the [defendant’s] death, which
amount represented the [plaintiff’s] marital portion of
the [pension plan] benefit, to the extent the said amount
exceeds $84,261 (including any [cost of living] adjust-
ments), the said amount shall be subsequently paid by
Deloitte to the account designated by the [defendant]
at his discretion, before his death or if not by the [defen-
dant’s] executor. To effectuate the foregoing, the [plain-
tiff] shall direct Deloitte to pay said excess amount
directly to the said account providing the [defendant’s]
executor copies of the forms for approval ten . . . days
prior to submission to Deloitte (a current copy of said
form attached as exhibit B and a confirmation from
Deloitte attached as exhibit C hereto) and a fully exe-
cuted copy. [The defendant’s estate] shall be deemed
a third-party beneficiary to this agreement. Only if
Deloitte will not subsequently make direct payments,
[the plaintiff] shall make payments to the said account
within ten . . . days of receiving said payments.’’
The plaintiff argues that paragraph 10 modifies the
property distribution in the dissolution judgment
because it eliminates her right under the judgment to
receive 100 percent of the survivor annuity to be paid
on the defendant’s death and, instead, caps her survivor
benefit at $84,261, plus cost of living adjustments. The
defendant agrees that paragraph 10 has the effect of
limiting the survivor benefit that the plaintiff will
receive to less than 100 percent of the survivor benefit
that Deloitte would pay on the defendant’s death. The
defendant argues that such a result is consistent with
the dissolution judgment, merely effectuates the judg-
ment, and in no way modifies the judgment. We agree
with the defendant.
As this court noted in its decision on the defendant’s
appeal from the dissolution judgment: ‘‘The parties do
not dispute that . . . the plaintiff will receive 41 per-
cent of the defendant’s [pension benefit] valued as of
the date of the dissolution of the marriage.’’ (Emphasis
added.) Cunningham v. Cunningham, supra, 140
Conn. App. 685. Furthermore, the dissolution judgment
explicitly provides that ‘‘[a]ny benefit vesting and accru-
ing [after the date of dissolution] shall belong to the
[defendant].’’ Paragraph 10 of the 2019 order effectuates
the dissolution judgment by ensuring that any survivor
benefit that the plaintiff receives is based on the value
of the pension benefit at the time of the dissolution
judgment, which is reflected in exhibit A and is the
basis for the parties’ calculation of the plaintiff’s annual
$84,261 pension benefit. Because the defendant contin-
ued to accrue value in the pension plan after the dissolu-
tion judgment was rendered and until he retired, the
court needed a mechanism to ensure, as required by
the dissolution judgment, that the increased value of
the pension benefit that accrued and vested after the
date of the dissolution judgment ‘‘belong[ed] to the
defendant.’’ In fact, at the hearing on the defendant’s
motion, the court, in stating its intention to enter an
order substantially as submitted by the defendant, indi-
cated that, without paragraph 10, if the defendant prede-
ceased the plaintiff, the plaintiff ‘‘may get the entire
[survivor benefit] as . . . the alternate payee. But that
clearly is not what the court intended.’’ Furthermore,
the court anticipated at the time that it rendered the
dissolution judgment that an order like the 2019 order
might be necessary by stating in the judgment that the
court retained jurisdiction ‘‘to deal with any issues
which may arise with regard to . . . the division of the
[pension benefit].’’ Paragraph 10 of the 2019 order is
entirely consistent with the court’s retention of jurisdic-
tion.
Viewing paragraph 10 of the 2019 order in conjunction
with the dissolution judgment, we conclude that para-
graph 10 does not modify the dissolution judgment,
but merely protects the integrity of that judgment and
ensures that the plaintiff does not receive an unintended
windfall.3 Accordingly, the plaintiff’s claim is without
merit.
II
Next, the plaintiff claims that the 2019 order consti-
tutes an impermissible modification of the 2011 dissolu-
tion judgment because the order requires the plaintiff
to share in the cost of the 50 percent joint survivor
annuity election. We are not persuaded.
As set forth in part I of this opinion, because the
construction of a judgment is a question of law for the
court, our review of the plaintiff’s claim is plenary. See
Perry v. Perry, supra, 156 Conn. App. 593.
Paragraph 9 of the 2019 order provides: ‘‘The [defen-
dant] elected payment in the form of a 50 percent joint
and survivor annuity with the [plaintiff] as the survivor
annuitant, as ordered. The [plaintiff] shall proportion-
ately share the cost of the 50 percent joint and survivor
annuity. The [defendant] has commenced benefit pay-
ments at the earliest date permitted by the [pension
plan].’’ At oral argument before this court, the defen-
dant’s counsel stated that the referenced costs at issue
in the second claim are solely the reduced current
monthly retirement benefits that the parties receive as
a result of the election of the 50 percent future joint
survivor annuity. In essence, the parties are paying for
the cost of the survivor annuity by receiving a lesser
benefit during the defendant’s lifetime. This court asked
the plaintiff’s counsel at oral argument whether he
accepted the representation of the defendant’s counsel
that the defendant is not seeking any additional costs
that previously have not been incorporated into the
court’s orders. The plaintiff’s counsel stated that he
perceived the representation to be a judicial admission
and that this court can ‘‘take that out or leave it in
. . . .’’ The plaintiff has identified no other ‘‘costs’’ asso-
ciated with the survivor annuity election.
In the dissolution judgment, the court ordered the
defendant to elect a 50 percent joint and survivor annu-
ity. Paragraph 9 of the 2019 order merely states that
the defendant elected payment in the form of a 50 per-
cent joint and survivor annuity with the plaintiff as the
survivor annuitant and that both parties would share,
in proportion, the cost of the election of that annuity.
We agree with the defendant that paragraph 9 does
nothing more than confirm that the election of the survi-
vor annuity resulted in a ‘‘cost’’ to both parties in the
form of a lesser current pension benefit. Accordingly,
we conclude that the order does not constitute an
impermissible modification of the dissolution judg-
ment.
III
Last, the plaintiff claims that the court improperly
ordered that both parties share equally in any future
reductions in the defendant’s pension benefit that may
result from decreased contributions to the pension plan
by Deloitte. At issue is the following language from the
2019 order: ‘‘In accordance with Deloitte’s calculation
as set forth in exhibit A and confirmed in exhibit C,
attached hereto, the [plaintiff] shall receive an annual
pretax payment in the amount of $84,261 (or $7021.75
monthly), and said amount shall be reduced by federal,
state and local taxes paid by the [defendant] if, as and
when the [defendant] receives payments from Deloitte.
As a [non]qualified, [non]funded benefit each party
shares equally in any future reductions implemented
by Deloitte (i.e., a 2 percent reduction by Deloitte in
any year reduces both [parties’] benefits by 2 percent).’’
(Emphasis omitted.) The defendant argued before the
court that, because Deloitte refused to make any pay-
ments directly to the plaintiff, such language was
required in the 2019 order to clarify what the defendant
would be obligated to pay the plaintiff as her share of
the pension benefit if the payments he received from
Deloitte were reduced.
The plaintiff makes several arguments in response.
The plaintiff first contends that the issue of what the
defendant’s obligation might be if Deloitte reduces
future payments to the pension plan was not ripe for
adjudication. Second, the plaintiff contends that the
court erred in materially changing the dissolution judg-
ment and that it did so without evidentiary support.
Third, the plaintiff argues that the court improperly
implemented a formula that would unjustifiably reduce
the plaintiff’s marital portion of the benefit. We are not
persuaded by any of these arguments.
A
We first address the plaintiff’s contention that,
because the possibility that Deloitte might someday
reduce its payments under the pension plan is hypothet-
ical, the issue was not ripe for adjudication by the court.
‘‘[J]usticiability comprises several related doctrines,
namely, standing, ripeness, mootness and the political
question doctrine, that implicate a court’s subject mat-
ter jurisdiction and its competency to adjudicate a par-
ticular matter.’’ (Footnote omitted.) Office of the Gover-
nor v. Select Committee of Inquiry, 271 Conn. 540, 569,
858 A.2d 709 (2004). ‘‘The problem is best seen in a
twofold aspect, requiring [the court] to evaluate both
the fitness of the issues for judicial decision and the
hardship to the parties of withholding court consider-
ation. . . . [W]e will decide a case only when it pre-
sents a live controversy which can be resolved by relief
that is within the court’s power to grant.’’ (Internal
quotation marks omitted.) Forcier v. Sunnydale Devel-
opers, LLC, 84 Conn. App. 858, 865, 856 A.2d 416 (2004).
‘‘Justiciability requires (1) that there be an actual
controversy between or among the parties to the dis-
pute . . . (2) that the interests of the parties be adverse
. . . (3) that the matter in controversy be capable of
being adjudicated by judicial power . . . and (4) that
the determination of the controversy will result in prac-
tical relief to the complainant.’’ (Internal quotation
marks omitted.) Id.‘‘[T]he rationale behind the ripeness requirement is
to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract
disagreements . . . [and we therefore] must be satis-
fied that the case before [us] does not present a hypo-
thetical injury or a claim contingent upon some event
that has not and indeed may never transpire.’’ (Internal
quotation marks omitted.) Countrywide Home Loans
Servicing, L.P. v. Peterson, 171 Conn. App. 842, 847, 158
A.3d 405 (2017). ‘‘The difference between an abstract
question and a case or controversy is one of degree . . .
and is not discernible by any precise test.’’ (Internal
quotation marks omitted.) Babbitt v. United Farm
Workers National Union, 442 U.S. 289, 297, 99 S. Ct.
2301, 60 L. Ed. 2d 895 (1979). Because an issue regarding
justiciability raises a question of law, our appellate
review is plenary. See Office of the Governor v. Select
Committee of Inquiry, supra, 271 Conn. 569.
We are not persuaded by the plaintiff’s ripeness argu-
ment because it is founded on an incorrect premise.
The plaintiff assumes that the language in the 2019
order providing that the parties would share equally
the impact of any reductions in Deloitte’s contributions
to the pension plan constitutes a new order of the court
or an impermissible modification of the dissolution
judgment. For the reasons set forth in parts III B and
C of this opinion, we conclude that it is neither. The
court’s order merely clarifies and effectuates the disso-
lution judgment. Thus, to the extent that the court ren-
dered a judgment addressing a potential future contin-
gency, it did so when it rendered the dissolution
judgment in 2011. Furthermore, the plaintiff concedes
in her principal brief that ‘‘[i]t was known at the [dissolu-
tion] trial, that there was/is a possibility that the [pen-
sion plan] benefit could be reduced in the future based
upon certain limitations under the [plan].’’ Conse-
quently, when the court ordered, as part of the dissolu-
tion judgment, that the parties would share equally in
the defendant’s pension benefit, the plaintiff under-
stood that there was a possibility that her share could
be negatively impacted by a reduction in Deloitte’s con-
tributions. In fact, she agrees that at some level of
reduction her share of the benefits necessarily would
be impacted, and that the size of the impact would be
contingent on the amount by which Deloitte reduces
its contribution. For example, if Deloitte ceased pay-
ments to the pension plan completely and the defen-
dant’s pension benefit was reduced to zero, the plain-
tiff’s share of the benefit would also be reduced to zero.
The plaintiff does not argue that it was error for the
court at the time of the dissolution to render a judgment
that included such a contingency. Nor would such an
argument have any merit. The circumstances in this
case are akin to a court ordering, at the time of dissolu-
tion, that the parties sell the marital home and evenly
split the proceeds of the sale, and then issuing a clarify-
ing order that the parties are also to share equally in
the costs of selling the home. It cannot reasonably be
argued that, because the sales price of a property or
its closing costs are unknown at the time of the judg-
ment, the court would be without jurisdiction to issue
a clarifying order because the issue is unripe. The same
is true in this case. The plaintiff’s ripeness argument is
without merit.
B
As to the merits of the plaintiff’s challenge to the
court’s order that both parties share equally in any
future reductions in the defendant’s pension benefit
that may result from decreased contributions to the
pension plan by Deloitte, the plaintiff first posits that,
‘‘[b]y simply adopting the defendant’s request, without
offer or inquiry into the defendant’s current [pension
plan] benefits, the trial court made a material change
to the judgment . . . .’’ The plaintiff provides no analy-
sis in support of this assertion, but merely cites to two
Supreme Court cases and to two cases from this court.
The plaintiff then concludes her ‘‘argument’’ by stating:
‘‘This error is compounded by the fact that the court
made such orders without evidence as to the amount of
the defendant’s current [pension plan] benefit. Orders
entered without [proper] evidentiary support constitute
[plain] error.’’ We disagree that the 2019 order materi-
ally changed the dissolution judgment with respect to
how the parties share the defendant’s retirement benefit
under the pension plan.
‘‘It is well settled that [c]ourts have continuing juris-
diction . . . to fashion a remedy appropriate to the
vindication of a prior . . . judgment . . . pursuant to
[their] inherent powers . . . . 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 effectu-
ate its prior [judgment] . . . by interpreting [the]
ambiguous judgment and entering orders to effectuate
the judgment as interpreted . . . .’’ (Internal quotation
marks omitted.) Dicker v. Dicker, 189 Conn. App. 247,
260, 207 A.3d 525 (2019).
‘‘Although a trial court may interpret an ambiguous
judgment, this court has emphasized that a motion for
clarification may not . . . be used to modify or to alter
the substantive terms of a prior judgment . . . 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 order to determine whether the trial court prop-
erly clarified ambiguity in the judgment or impermissi-
bly modified or altered the substantive terms of the
judgment, we must first construe the trial court’s judg-
ment. It is well established that the construction of a
judgment presents a question of law over which we
exercise plenary review. . . . In construing a trial
court’s judgment, [t]he determinative factor is the inten-
tion of the court as gathered from all parts of the judg-
ment. . . . The interpretation of a judgment may
involve the circumstances surrounding the making of
the judgment. . . . Effect must be given to that which
is clearly implied as well as to that which is expressed.
. . . The judgment should admit of a consistent con-
struction as a whole. . . . In addition . . . because
the trial judge who issues the order that is the subject
of subsequent clarification is familiar with the entire
record and, of course, with the order itself, that judge
is in the best position to clarify any ambiguity in the
order. For that reason, substantial deference is
accorded to a court’s interpretation of its own order.
. . . Accordingly, we will not disturb a trial court’s
clarification of an ambiguity in its own order unless
the court’s interpretation of that order is manifestly
unreasonable.’’ (Internal quotation marks omitted.)
Lawrence v. Cords, 159 Conn. App. 194, 198–99, 122
A.3d 713 (2015).
The dissolution judgment in the present case provides
that the parties are to share equally the value of the
pension benefit that was vested and accrued as of the
date of the dissolution judgment. In order to protect
the integrity of its original judgment and to clarify any
ambiguity that may result from Deloitte’s reduction or
termination of such benefit, the court ordered that both
parties share equally in any future reductions imple-
mented by Deloitte. The provision in the court’s 2019
order is consistent with its dissolution judgment. Fur-
thermore, substantial deference is accorded to the
court’s clarification of its own order. The court, Shay,
J., effectuated and implemented its own order to clarify
any ambiguity that might result in the event that Deloitte
reduces or terminates its payments under the pension
plan by requiring that both parties share equally in any
reduction in said scenario. Accordingly, we conclude
that the court’s interpretation of its own order was not
manifestly unreasonable.4
C
The plaintiff’s last contention is related to her second
argument. She argues that the court improperly modi-
fied the dissolution judgment by adopting a formula
that could result in a reduction of her pension benefit
under circumstances in which any reduction to the total
benefit received by the defendant should, according to
the plaintiff, be borne entirely by him. The plaintiff
concedes that the parties agreed in exhibit A that the
marital portion of the pension benefit on the date of
the dissolution judgment was expected to be $276,230.
The plaintiff argues that her portion of the benefit is
calculated on the basis of that amount. Thus, the plain-
tiff contends that, if, as a result of reduced contributions
from Deloitte, the defendant’s gross pension benefit
reaches $276,230 or less, then and only then would the
plaintiff’s share of the benefit be reduced in proportion
with the defendant’s share of the benefit. The plaintiff
argues, however, that because the defendant’s gross
pension benefit has continued to grow postjudgment,
any reduction in the pension benefit that leaves the
defendant with at least $276,230 is the defendant’s bur-
den alone. In contrast, the defendant contends that the
plaintiff is not entitled to a set amount that is reduced
only if Deloitte reduces the benefit to an amount less
than $276,230. According to the defendant, the plain-
tiff’s approach would disproportionally and artificially
place the impact of any contribution reduction on the
postjudgment portion of the pension benefit, when in
fact, any such reduction would decrease the defendant’s
benefit as a whole. The defendant argues that if the
entire benefit is reduced, then each constituent part of
the benefit is also reduced by a proportionate amount.
Consequently, according to the defendant, consistent
with the dissolution judgment, the 2019 order ensures
that the parties share equally the defendant’s pension
benefit as of the date of dissolution. We agree with the
defendant.
As set forth in parts I and II of this opinion, because
the construction of a judgment is a question of law for
the court, our review of this claim is plenary. See Perry
v. Perry, supra, 156 Conn. App. 593.
The dissolution judgment clearly provides that the
parties are to share equally in the defendant’s benefits
under the pension plan. This includes not only the
amount based on the value of the defendant’s benefit
at the time of the dissolution judgment, but also to
adjustments to that value, for example, upward cost of
living adjustments. Similarly, the plaintiff’s share of the
benefit is subject to deductions for federal, state and
local taxes. Those taxes can change over time, which
may result in the plaintiff receiving a larger or smaller
net distribution. Nevertheless, the plaintiff does not
claim that she is entitled to have her net benefit calcu-
lated based on the tax rates in effect at the time of
dissolution. Changes to the defendant’s total pension
benefit, and, hence, to the plaintiff’s share of the benefit,
due to a funding reduction by Deloitte are no different.
The 2019 order does no more than effectuate the disso-
lution judgment by clarifying that the plaintiff’s share
of the benefit is subject to such reductions to the same
extent that the defendant is affected. For the reasons
set forth in part III B of this opinion, we give substantial
deference to Judge Shay’s interpretation of his own
order and conclude that his interpretation was not mani-
festly unreasonable.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘Under the present division method [of deferred distribution], the trial
court determines at the time of trial, the percentage share of the pension
benefits to which the nonemployee spouse is entitled. . . . In other words,
the court will declare that, upon maturity, a fixed percentage of the pension
be distributed to each spouse.’’ (Internal quotation marks omitted.) Bender
v. Bender, 258 Conn. 733, 758, 785 A.2d 197 (2001). ‘‘One disadvantage of
delaying distribution of the pension benefits is the cost of prolonging the
parties’ entanglement with each other.’’ (Internal quotation marks omitted.)
Id., 759.
2
‘‘If some event, such as the death, resignation or dismissal of the owning
spouse, occurs so as to prevent the vesting of the pension benefits, the
nonowning spouse may lose his or her retirement security. This risk would,
of course, exist had the parties remained married. In order to minimize this
risk, however, the court may choose . . . to require the owning spouse to
provide survivorship benefits or life insurance.’’ Bender v. Bender, supra,
258 Conn. 760.
3
When it entered the 2019 order, the court also was concerned with the
defendant realizing an unintended windfall if the plaintiff were to predecease
the defendant. Consequently, paragraph 11 was included in the order. Para-
graph 11 provides: ‘‘Death of Alternate Payee: If [the plaintiff] is the first
to die, her marital share of the [pension plan] benefit shall revert to the
[defendant] and shall be paid by [the defendant] to an account designated
by [the plaintiff] at her discretion, before her death or if not then paid to
the executor of the estate of [the plaintiff] within ten . . . days of receipt
of said payment. The [defendant’s] payments shall be reduced by the [defen-
dant’s] prior year effective federal, state, and local tax rate.’’ Although the
plaintiff objects to paragraph 10 of the order, she has no objection to para-
graph 11.
4
We further reject the plaintiff’s plain error argument. First, the plaintiff
fails to explain why the court would need to take evidence before issuing
a clarifying order. Second, ‘‘[t]he plain error doctrine is reserved for truly
extraordinary situations [in which] the existence of the error is so obvious
that it affects the fairness and integrity of and public confidence in the
judicial proceedings. . . . [I]n addition to examining the patent nature of
the error, the reviewing court must examine that error for the grievousness
of its consequences in order to determine whether reversal under the plain
error doctrine is appropriate. A party cannot prevail under plain error unless
it has demonstrated that the failure to grant relief will result in manifest
injustice. . . . An appellant cannot prevail . . . unless he demonstrates
that the claimed error is both so clear and so harmful that a failure to
reverse the judgment would result in manifest injustice.’’ (Citation omitted;
emphasis in original; internal quotation marks omitted.) State v. Cane, 193
Conn. App. 95, 126, 218 A.3d 1073, cert. denied, 334 Conn. 901, 219 A.3d
798 (2019). In the present case, the plaintiff has not demonstrated that the
court erred, let alone that it committed an error so clear and so harmful as
to constitute a manifest injustice.