Opinion
No. FA 04-0490123S
January 10, 2006
MEMORANDUM OF DECISION ON DEFENDANT'S SECOND MOTION TO RE-ARGUE
The defendant's second Motion to Reargue, dated September 20, 2005, has again raised the question of the court's authority to award the plaintiff fifty per cent of his pension. His first motion to reargue asserted that the court lacks authority to award the plaintiff any portion of the pension he earns after the date of the dissolution, an argument this court rejected, citing Hansen v. Hansen, 80 Conn.App. 609, 836 A.2d 1228 (2003). He now argues that the court incorrectly construed the Hansen decision because the pension award in that case had been agreed to by the parties:
the Court in the Hansen case gave great deference to the language contained in the parties' agreement because the agreement was in the nature of a contract. This fact was a major reason why the Court allowed the language and the agreement to control and awarded the plaintiff half of the defendant's retirement benefits, when and as available from the State of Connecticut. The parties had previously contemplated and agreed to the language, so the Court awarded it.
Def.'s Motion to Reargue, at 1-2. The court rejects this argument and again denies his motion.
In Hansen, the appellee, seeking to preserve a pension award there that consisted in part of pension benefits earned after the date of the dissolution, did argue that the award should be upheld because it had been entered into by agreement of the parties. See Appellate Court, October Term 2003, Briefs and Records, Appellee's Br., at 8-9. Contrary to the defendant's argument here, however, the Appellate Court did not adopt this argument as a basis for upholding the trial court decision and instead directly held that a court may award to a spouse "a portion of retirement benefits earned by his or her former spouse subsequent to the date of dissolution." Hansen v. Hansen, supra, 80 Conn.App. 612.
This court is well aware that in most instances trial courts award only the portion of pension benefits earned during the marriage. The law does not impose such a limitation, however. In upholding an award of unvested pension benefits in Bender v. Bender, 258 Conn. 733, 785 A.2d 197 (2001), for example, the Supreme Court specifically noted that the trial court had correctly classified the entire unvested pension as marital property, including portions that "once vested, will represent the defendant's service to the fire department after the dissolution." Id., 752. The court expressly rejected the husband's argument that a trial court could not assign that portion of the pension "that would result from his future labors." (Alterations omitted.) Id. Similarly, in Lopiano v. Lopiano, 247 Conn. 356, 364, 752 A.2d 1000 (1998), the court upheld an equitable distribution that included future lost wages.
The parties' marriage here was truly "a shared enterprise or joint undertaking in the nature of a partnership to which both spouses contribute[d] — directly and indirectly, financially and nonfinancially," (Citations omitted; emphasis in original.) Bender v. Bender, supra, 258 Conn. 745. After marrying the defendant while both were teenagers, the plaintiff followed him to Germany for his military posting there. After their return to the United States, she set aside her own career and any opportunity to develop occupational skills in order to stay at home and raise their child. Even after she returned to work, she did so only part-time in order to care for their child. While the defendant worked many long hours of overtime in recent years in order to improve his ultimate retirement benefit, the plaintiff lost hours of companionship with him. Her conduct throughout her entire married life shows that she was relying not just on the defendant's present income to meet her present needs but his future income to meet her future needs. This court's classification and equitable distribution of property sought to recognize their "shared enterprise"
In Bender v. Bender, supra, 258 Conn. 733, 748, the court held that "in determining whether a certain interest is property subject to equitable distribution under § 46b-81, we look to whether a party's expectation of a benefit attached to that interest was too speculative to constitute divisible marital property." The court reiterated that the function of the trial court in dissolution matters is to give "mindful consideration to the equitable purpose of our statutory distribution scheme, rather than to mechanically applied rules of property. In order to achieve justice, equity looks to substance, and not to mere form." Id., 751. The defendant's interest in his pension, including portions accrued during and after the marriage, is not too speculative to constitute divisible property. It is more than a "mere expectancy." The defendant's expectation in that plan, "as a practical matter, is sufficiently concrete, reasonable and justifiable as to constitute a presently existing property interest for equitable distribution purposes." Id., 749.
Accordingly, the motion to reargue is denied.
SO ORDERED.