Marianne Odell v. Kim Odell (2011)

MEMORANDUM OF DECISION

On May 27, 2011, the plaintiff filed a Motion for Contempt, number 248, citing the defendant's failure to pay periodic alimony to the plaintiff in the amount of $428 per week.   On June 13, 2011, the parties stipulated to an arrearage of $11,183 and agreed that the defendant's claim of a setoff for certain property taxes owed by the plaintiff would be addressed at a future hearing if necessary.

By way of background, the court's memoranda of decision dissolving the marriage with further orders was filed on September 22, 2009.   The memoranda of decision provided, in part, for the payment of periodic alimony by the defendant to the plaintiff in the amount of $428 per week.   On October 9, 2009, the Court, sua sponte, opened the judgment to take additional evidence on the issue of the availability of life insurance to the defendant.   The plaintiff was provided an opportunity to present evidence in opposition.   The court advised that it would consider the effect of its findings on the entirety of the orders in the matter.   The matter was set down for a hearing on October 23, 2009, and later continued to November 9, 2009.

On December 4, 2009, the court issued a corrected memorandum of decision vacating the order in paragraph 4 requiring the defendant to maintain life insurance, clarified the order in paragraph 6 and reaffirmed the court's decision of September 22, 2009, in all other respects.¹

The court makes the following findings.

On January 7, 2009 the town of Haddam commenced a complaint against the parties who were the owners of certain property known as for 89 Foothills Road for certain real estate taxes owed in the amount of $5,866.76 for July 1, 2006 and $5,866 for July 1, 2007.   On January 21, 2009 the defendant paid $15,989.37 in property taxes to John D. Watts, trustee for the town of Haddam.   The December 4, 2009 corrected memorandum of decision provided in part in paragraphs 2 & 16 as follows:

2.  All three pieces of real property owned by the parties (489 Foot Hills Road, Higganum, the adjacent lot, and 6791 Rt. 5, Sutton, Vermont) shall be immediately listed for sale at a fair and reasonable market price with a licensed real estate broker.   In the event the parties cannot promptly agree on a price or on any other term for listing or on terms of any subsequent modification of those terms or an acceptance or counter offer to any offer received, either party may apply to the court for a resolution of the dispute, and the court shall retain continuing jurisdiction for the purpose.   After payment of the mortgages, taxes and customary costs of sale, the remaining net proceeds shall be divided equally between the parties.   Until such time as the properties are sold the defendant shall have exclusive use of the marital home, and shall keep the mortgage, taxes and utilities current on all the properties.   Also, and until such time as the properties are sold, the plaintiff shall be given the use of the Vermont property on alternating weekends, and

16.  The parties shall be solely responsible for and hold the other harmless from the liabilities and debts shown on their respective financial affidavits.

The plaintiff's financial affidavit submitted at the time of trial, on or about April 1, 2009, stated that the plaintiff had an obligation for Sutton, Vermont property taxes totaling $5,600 with a balance due of $2,800 (50%) and for town of Haddam taxes totaling $10,000 with the balance due of $5,000 (50%).   The defendant's financial affidavit of the same date listed an obligation to Sutton, Vermont for property taxes totaling $5600 with the balance due of $2,800 (50%) but was silent concerning the Town of Haddam taxes.²

No evidence was offered concerning the property tax obligations owed by the parties for the Haddam, CT and Sutton, VT properties effective December 4, 2009.

On September 6, 2010, the defendant paid property taxes in the amount of $5,898 to the town of Sutton Vermont for property taxes.

On January 14, 2011, the parties reached an agreement whereby the defendant waived any claim he had, pursuant to the December 4, 2009 judgment, to the plaintiff's interest in her father's estate.   In consideration, the plaintiff quit claimed her interest in all three parcels described in paragraph 2 to the defendant.   The agreement was entered as an order of the court.

On May 27, 2011, the defendant paid real estate taxes to the town of Haddam in the amount of $11,337.

The defendant claims as a set off against the $11,183 arrearage owed to the plaintiff, the January 21, 2009 payment of $15,989, the September 6, 2010 payment of $5,898 and the May 27, 2011 payment of $11,337 for a total set off of $33,224.

Conclusion

The January 21, 2009 payment for town of Haddam property taxes preceded the December 4, 2009 judgment.   It is not a proper set off.   The May 27, 2011 payment for town of Haddam property taxes was subsequent to the January 14, 2011 quitclaim.   It is not a proper set off.   The September 6, 2010 payment to the town of Sutton, VT was the obligation of the defendant as set forth in the specific language of paragraph 2 “[u]ntil such time as the properties are sold the defendant shall have exclusive use of the marital home, and shall keep the mortgage, taxes and utilities current on all the properties” and controls the more general language of paragraph 16.³  Moreover, any claim for taxes from the plaintiff was extinguished upon the plaintiff's quitclaim of her interest in the property to the defendant.⁴  The defendant's claimed set off is denied.   The defendant shall pay the plaintiff the arrearage of $11,183 within 30 days.

HARRY CALMAR, J.

FOOTNOTES

FN1. The financial orders in a dissolution judgment are unenforceable between the opening of the judgment until the entry of the new judgment.   Moreover, “the new judgment completely replaces the original judgment and becomes the only valid judgment in the case.”  Paddock v. Paddock, 22 Conn.App. 367, 375, 577 A.2d 1087 (1990).   Consequently, the judgment is effective on the date the new judgment is entered and not the date it was first rendered.  Connecticut National Bank v. Great Neck Development Co., 215 Conn. 143, 147, 574 A.2d 1298 (1990)..  FN1. The financial orders in a dissolution judgment are unenforceable between the opening of the judgment until the entry of the new judgment.   Moreover, “the new judgment completely replaces the original judgment and becomes the only valid judgment in the case.”  Paddock v. Paddock, 22 Conn.App. 367, 375, 577 A.2d 1087 (1990).   Consequently, the judgment is effective on the date the new judgment is entered and not the date it was first rendered.  Connecticut National Bank v. Great Neck Development Co., 215 Conn. 143, 147, 574 A.2d 1298 (1990).

FN2. By agreement of the parties the defendant had the exclusive use of the marital home from November 10, 2008..  FN2. By agreement of the parties the defendant had the exclusive use of the marital home from November 10, 2008.

FN3. See Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 545, 893 A.2d 389 (2006)..  FN3. See Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 545, 893 A.2d 389 (2006).

FN4. See e.g., Connors v. Evans, Superior Court, judicial district of New Haven, Docket No. CV 03 0284821 (January 21, 2005, Frazzini, J.) (38 Conn. L. Rptr. 609) (only liable for taxes on property that were assessed before transfer by quitclaim deed)..  FN4. See e.g., Connors v. Evans, Superior Court, judicial district of New Haven, Docket No. CV 03 0284821 (January 21, 2005, Frazzini, J.) (38 Conn. L. Rptr. 609) (only liable for taxes on property that were assessed before transfer by quitclaim deed).

Calmar, Harry E., J.