Richman v. Wallman , 172 Conn. App. 616 ( 2017 )

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TERRI L. RICHMAN v. SCOTT A. WALLMAN
(AC 38584)
Alvord, Keller and Gruendel, Js.
Argued March 20—officially released April 21, 2017*
(Appeal from Superior Court, judicial district of
Danbury, Winslow, J.)
Terri L. Richman, self-represented, the appellant
(plaintiff).
Scott A. Wallman, self-represented, the appellee
(defendant).
Opinion
PER CURIAM. The self-represented plaintiff, Terri L.
Richman, appeals from the judgment of the trial court
ordering her to sign the revised qualified domestic rela-
tions orders (QDROs)1 that were prepared to divide the
retirement assets of her former husband, the defendant,
Scott A. Wallman, between the two parties.2 On appeal,
the plaintiff claims that the court (1) improperly held
her in contempt, and (2) improperly modified the distri-
bution of the parties’ property without the requisite
subject matter jurisdiction to do so. We affirm the judg-
ment of the trial court.
The following facts and procedural history are rele-
vant to the plaintiff’s appeal. The parties’ marriage was
dissolved on August 20, 2014. On that date, the court
approved a separation agreement between the parties
and incorporated the terms of the separation agreement
into the dissolution judgment. Pursuant to that
agreement, the parties agreed that QDROs would be
executed to assign to the plaintiff a portion of the defen-
dant’s benefits under his 401 (k) defined contribution
plan and defined benefit pension plan. The agreement
stated that ‘‘the [c]ourt in the pending action shall enter
a [QDRO] transferring to the [plaintiff] the appropriate
amount of the [defendant’s] accrued interest in his 401
(k) and pension as indicated herein.’’ The agreement
further provided that ‘‘the [c]ourt shall have the power
to enter alternative orders to effectuate the intention
herein.’’ The agreement stipulated that ‘‘Attorney Eliza-
beth McMahon shall prepare the QDROs.’’
In accordance with the parties’ separation agreement,
a financial planner, Bill Donaldson, was hired to calcu-
late the 401 (k) equalization plan, which was being used
per the parties’ agreement to offset the distribution of
other assets and to fund college savings plans. In his
initial evaluation, Donaldson deviated from the terms
of the agreement and erroneously took into account as
an offset the present value of the defendant’s pension.
When this was brought to his attention by the defendant,
Donaldson subsequently prepared an amended evalua-
tion and submitted it to the parties for their approval.
The plaintiff refused to sign the amended evaluation,
and the defendant filed a motion for contempt against
the plaintiff on September 16, 2015, asking that the
court order the plaintiff to agree to the evaluation so
that the QDROs could be prepared accordingly.
Following a hearing held on October 26, 2015, the
court ordered the plaintiff to agree to the amended
evaluation prepared by Donaldson and to pay her por-
tion of the fees owed to McMahon and Donaldson so
that the QDROs could be prepared. The court did not
rule on the defendant’s motion for contempt. The plain-
tiff subsequently initiated the present appeal. Additional
facts will be set forth as necessary.
With respect to the plaintiff’s first claim on appeal,
namely, that the court erred in holding her in contempt,
she argues that that ruling was based on the erroneous
finding that she wilfully refused to agree to Donaldson’s
amended valuation. The plaintiff argues that the court
forced her to agree to an incorrect valuation and equal-
ization of the defendant’s retirement assets to be used
in the drafting of the QDROs. A review of the record,
however, reveals that the amended equalization plan
calculated by Donaldson was in accordance with the
agreement made by the parties, which categorized cred-
its and deductions being applied to each party’s respec-
tive share of the defendant’s 401 (k). The defendant’s
IBM retirement pension is not included in this contem-
plated equalization. Moreover, the plaintiff’s claim that
the court erroneously held her in contempt regarding
her refusal to agree to the valuation warrants little dis-
cussion. The court did not rule on the defendant’s
motion for contempt. The plaintiff is therefore not
aggrieved by any action of the court, and we thus reject
the plaintiff’s claim that the trial court held her in con-
tempt. Accordingly, we proceed directly to the sec-
ond claim.
We begin by setting forth our standard of review.
‘‘Whether a court retains continuing jurisdiction over
a case is a question of law subject to plenary review.
. . . Whether a court properly exercised that authority,
however, is a separate inquiry that is subject to review
only for an abuse of discretion.’’ (Internal quotation
marks omitted.) Lehn v. Marconi Builders, LLC, 120
Conn. App. 459, 462–63, 992 A.2d 1137 (2010).
Before reaching the plaintiff’s claim on appeal, we
note that our courts have no inherent power to transfer
property from one spouse to another in a marital disso-
lution proceeding. See Rubin v. Rubin, 204 Conn. 224,
228–29, 527 A.2d 1184 (1987). Instead, that power rests
upon an enabling statute, General Statutes § 46b-81 (a),
which provides in relevant part: ‘‘At the time of entering
a decree . . . dissolving a marriage . . . the Superior
Court may assign to either spouse all or any part of the
estate of the other spouse. . . .’’ Critically, under § 46b-
81 (a), ‘‘the court does not retain continuing jurisdiction
over any portion of the judgment that constitutes an
assignment of property.’’ (Internal quotation marks
omitted.) Schorsch v. Schorsch, 53 Conn. App. 378, 385,
731 A.2d 330 (1999). The court’s authority to distribute
the personal property of the parties must be exercised,
if at all, at the time that it renders judgment dissolving
the marriage. ‘‘Therefore, a property division order gen-
erally cannot be modified by the trial court after the
dissolution decree is entered, subject only to being
opened within four months from the date the judgment
is rendered under General Statutes § 52-212a.’’ (Internal
quotation marks omitted.) Id.
‘‘Although the court does not have the authority to
modify a property assignment, a court, after distributing
property, which includes assigning the debts and liabili-
ties of the parties, does have the authority to issue
postjudgment orders effectuating its judgment.’’ (Inter-
nal quotation marks omitted.) Fewtrell v. Fewtrell, 87
Conn. App. 526, 531, 865 A.2d 1240 (2005). This court has
explained the difference between postjudgment orders
that modify a judgment rather than effectuate it. ‘‘A
modification is [a] change; an alteration or amendment
which introduces new elements into the details, or can-
cels some of them, but leaves the general purpose and
effect of the subject-matter intact. . . . In contrast, 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.) O’Halpin v. O’Halpin, 144
Conn. App. 671, 677, 74 A.3d 465, cert. denied, 310 Conn.
952, 81 A.3d 1180 (2013). Having set forth our standard
of review and the relevant legal principles that guide
our analysis, we now consider the parties’ arguments
on appeal.
The plaintiff claims that the court improperly modi-
fied the distribution of the parties’ property by ordering
her to agree to the terms of Donaldson’s amended evalu-
ation that would be incorporated into the QDROs
drafted by McMahon. Specifically, the plaintiff contends
that the August 20, 2014 separation agreement provided
for only one QDRO, and that by ordering the plaintiff
to agree to the drafting of two QDROs, the court
exceeded the scope of its subject matter jurisdiction
by redistributing the parties’ assets as contemplated by
the parties’ agreement. The defendant argues that the
separation agreement provided for two QDROs, and
that the court was merely effectuating the distribution
of property between the two parties.
We agree with the defendant that the court’s order
was a means of effectuating the distribution of the par-
ties’ assets. The terms of the separation agreement con-
template the drafting of more than one QDRO because it
specifically states that ‘‘[t]he parties agree that Attorney
Elizabeth McMahon shall prepare the QDROs.’’
(Emphasis added.) Had the agreement been drafted to
refer to only one QDRO, the use of the plural ‘‘QDROs’’
would not have been included. In addition, Voya, the
administrator of the IBM pension plan, specifically
required a separate QDRO to split the pension, and the
court found the contemplated divisions could not be
done with a single QDRO. Moreover, ‘‘courts have con-
tinuing jurisdiction to fashion a remedy appropriate to
the vindication of a prior . . . judgment . . . pursuant
to [their] inherent powers . . . .’’ (Internal quotation
marks omitted). Mickey v. Mickey, 292 Conn. 597, 604,
974 A.2d 641 (2009). Accordingly, the court acted within
the scope of its subject matter jurisdiction by ordering
the plaintiff to agree to the terms of the two QDROs,
and the plaintiff’s second claim fails.
The judgment is affirmed.
* April 21, 2017, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
A QDRO is the exclusive means by which to assign to a nonemployee
spouse all or any portion of pension benefits provided by a plan that is
governed by the Employee Retirement Income Security Act, 29 U.S.C. § 1001
et seq.’’ Krafick v. Krafick, 234 Conn. 783, 786 n.4, 663 A.2d 365 (1995).
2
At issue were the defendant’s 401 (k) defined contribution plan adminis-
tered by Fidelity and his IBM pension, a defined benefit plan administered
by Voya.