Jessie Rosa v. Robert Rosa, Jr. (2011)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR CLARIFICATION POST–JUDGMENT (DKT.# 130)

On November 1, 2007, a judgment of dissolution entered by agreement dissolving the marriage of Jessie Rosa and Robert Rosa, Jr. The court, Sferrazza, J., reviewed a Separation Agreement dated November 1, 2007, (hereinafter “Agreement”), and found that the Agreement was fair and equitable.   The court incorporated the Agreement by reference into the judgment.   At the time judgment entered, both parties were represented by counsel.   This matter now comes to this court on a postjudgment motion for clarification filed on February 7, 2011, seeking to clarify paragraph 7.4 of the Agreement.

The Agreement is set forth in separate articles.   Article VII on page six of the Agreement is entitled “Personal Property.”   Paragraph 7.4 of the Agreement states:

The Husband and Wife shall share equally in the Rubicon Crossings, LLC sale proceeds to be received from the separation agreement dated Dec. 28, 2006 entered into between them, Edward Sutton and Rob Rosa, Jr. upon receipt thereof ($120,912.88 is due on or before January 1, 2008).   The Husband shall do what is necessary to effectuate this transfer to the Wife and if no payment is made by Edward Sutton the Husband will bring legal action to collect this debt.

Paragraph 7.4 of the Agreement is silent on any tax liabilities and/or how the tax liabilities are to be apportioned as a result of the sale of Rubicon Crossings, LLC. The Agreement is, likewise, silent as to the actual terms of the Rubicon Crossings, LLC sale.

Article VI of the Agreement provides for tax deductions and tax returns.   Paragraph 6.1 of the Agreement provides for tax exemptions for the children as long as the children are eligible.   It also provides in paragraph 6.2, that:

The Husband and Wife have filed joint State and Federal income tax returns in the past.   Any tax due as a result of this return or any previous tax returns filed by the parties jointly shall be paid by the party whose income incurred the liability and if a deduction is disallowed the parties shall share the expense jointly.

Paragraph 6.2 of the Agreement addresses passed tax liabilities arising from jointly filed tax returns.   Paragraph 6.2 of the Agreement is silent on how to address the tax consequences, if any, from the sale of Rubicon Crossing, LLC.

For the tax year 2008, the Husband received a Form 1099–Miscellaneous Income in the amount of $126,958.52.   The Form 1099 represents miscellaneous income to the Husband for the sale of Rubicon Crossing, LLC. The Husband claimed in his 2008 income tax return only $63,478.00, half of the proceeds from the sale of Rubicon Crossings, LLC. The Husband claims that the Wife is responsible for the other half of the proceeds from the sale of Rubicon Crossings, LLC.

The Husband now seeks to clarify the dissolution judgment with respect to the tax liabilities of the property division arising from the sale of Rubicon Crossing, LLC.

It is well settled that the courts do not have power to transfer property from one spouse to another.  Rathblott v. Rathblott, 79 Conn.App. 812, 819, 832 A.2d 90 (2003).   The court's authority to transfer property appurtenant to a dissolution proceeding is governed by Connecticut General Statutes section 46b–81.  Id. The court's authority to divide the property of the parties, pursuant to section 46b–81 must be exercised at the time the court renders judgment of dissolution.  Id. The court does not have the authority to modify the division of property once the dissolution becomes final.  Id. “A modification is change;  an alteration or amendment which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact.”  Ross v. Ross, 172 Conn. 269, 333, 374 A.2d 185 (1977).

Here, the court finds that Article VII, paragraph 7.4 of the Agreement divides the parties' property.   The division of property takes into consideration the sale of Rubicon Crossings, LLC. Paragraph 7.4 clearly divides the proceeds from the sale of Rubicon Crossings, LLC. equally.   The Agreement is silent on how the tax consequences, if any, of the sale are to be handled.   To require the Wife now to share equally in the capital gains tax obligations related to the sale of the Rubicon Crossings, LLC., is to modify the Agreement by introducing a new element into the details of the property division.   Such an amendment postjudgment is an impermissible modification of the November 1, 2007, judgment.   The defendant/husband's motion for clarification is, in essence a motion for modification.

THEREFORE, the court denies the request sought by the defendant/husband.

Suarez, J.

Suarez, José A., J.