Opinion
No. FA 05-4004912-S
May 25, 2010
MEMORANDUM OF DECISION RE MOTION FOR MODIFICATION #138
FACTS
On August 9, 2006, the marriage between the plaintiff, Jeanne Blondeau, and the defendant, Raymond Blondeau, was dissolved. Their separation agreement was incorporated into the dissolution decree. The court awarded, inter alia, joint legal custody of the two minor children to the plaintiff and defendant, with primary residence of Monica Blondeau with the defendant and primary residence of Matthew Blondeau with the plaintiff; child support in the amount of $600 per month for Matthew Blondeau provided by the defendant; medical insurance for Matthew Blondeau at a reasonable cost provided by the defendant through his employment, and the tax deduction for the dependency exemption for the two children to the defendant.
Article III, § 3.1 of the separation agreement regarding child support as to Monica Blondeau states: "As the minor child Monica will be 18 years of age in October 2006, the parties agree that no support shall be paid toward the Husband for Monica."
On March 5, 2010 (#138), the plaintiff filed a motion for modification of the judgment re: custody, medical insurance and the tax exemption for Matthew Blondeau. The plaintiff alleges therein that there is no ongoing parental relationship between the defendant and Matthew Blondeau, the minor child, who is now fifteen; there is no visitation or contact between them "despite attempts of counseling"; the plaintiff is responsible for making all of the parental decisions for the minor child, and, therefore, it would be in the best interest of the child if the court orders sole custody to her. In addition, she alleges that she has available a better medical insurance policy through her employment than does the defendant for coverage of Matthew Blondeau. Lastly, she alleges that since she is now providing more than 50% of the child support, she requests an order allowing her the dependency exemption for Matthew Blondeau starting with the year 2010.
A hearing was held on the motion to modify on April 5, 2010. At that time, the plaintiff's attorney stated that the matters regarding custody and a change as to the party who is responsible for the medical insurance "may go off." He further stated that only one issue remained to be resolved, that is, who is entitled to the TRS and state income tax exemption for Matthew Blondeau.
DISCUSSION
In Connecticut the terms and conditions under which an order for alimony or support may be modified are governed by General Statutes § 46b-86(a). That provision provides, in relevant part: "(a) Unless and to the extent that the decree precludes modification . . . the court may order . . . any final order for the periodic payment of permanent alimony or support . . . thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to [General Statutes] section 46b-215a . . . This section shall not apply to assignments [of property] under [General Statutes] section 46b-81 . . ."
Based on the statutory language, property assignments cannot be modified by the court except if an order is needed to effectuate the original judgment. See Clement v. Clement, 34 Conn.App. 641, 643 A.2d 874 (1994).
At the hearing, the defendant argued that the separation agreement is a contract and the tax exemption is a part of their property settlement, which is not modifiable by the court. In response the plaintiff asserted that the income tax deduction "goes hand in hand with the child support order" and, thus is modifiable.
A similar issue was addressed by the court in Ciolino v. Ciolino, Superior Court, judicial district of Waterbury, Docket No. FA 98 0147294 (January 12, 2005, Cutsumpas, J.) ( 38 Conn. L. Rptr. 525). Therein the court stated: "Connecticut's appellate courts have not yet directly addressed whether the allocation of tax deductions is a modifiable post-judgment; however, they have examined these deductions in the context of child support. Our Supreme Court has held that amendments to the Internal Revenue Code have not divested the state courts of their authority to allocate the deduction to a non-custodial parent. Serrano v. Serrano, 213 Conn. 1, 566 A.2d 413 (1989). Our Supreme Court has also held that the allocation of tax deductions is one factor to be considered in determining the applicability of the Child Support Guidelines. Battersby v. Battersby, 218 Conn. 467, 590 A.2d 427 (1991).
"At the trial level, Connecticut courts have addressed the issue as one of contract law and have distributed the tax deductions according to their interpretation of the dissolution agreement's provisions. See Koldys v. Koldys, Superior Court, judicial district of Litchfield, Docket No. 043717 (December 4, 1992, Pickett, J.) ( 8 Conn. L. Rptr. 35); Kaiser v. Kaiser, Superior Court, judicial district of New Haven, Docket No. 339639 (October 10, 1996, Alander, J.) ( 17 Conn. L. Rptr. 662)." Ciolino v. Ciolino, supra, 38 Conn. L. Rptr. 526.
In denying the motion to modify in Ciolino, the court applied the contract law approach to the facts in its case as set forth in Kaiser v. Kaiser. "In a similar matter where the agreement of the parties earlier had been ordered incorporated by reference into the dissolution decree, the court [in Kaiser] held that `[a] judgment rendered in accordance with such a stipulation of the parties is to be regarded and construed as a contract . . .
"In interpreting contract items, we have repeatedly stated that the intent of the parties is to be ascertained by a fair and reasonable construction of the written words and that the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms." (Citations omitted; internal quotation marks omitted.) Kaiser v. Kaiser, supra [ 17 Conn. L. Rptr. 662]. (Internal quotation marks omitted.) Ciolino v. Ciolino, supra, 38 Conn. L. Rptr. 526.
In Kaiser v. Kaiser, supra, 17 Conn. L. Rptr. 662, the court had concluded that the language of the separation agreement was clear and unambiguous. "[T]he agreement specifically state[d] that `the wife will claim the minor child as a dependency exemption for income tax purposes. The husband shall execute Federal Form 8332 permanently waiving any entitlement to said exemption, and provide it to the wife concurrent with the execution of this agreement.'" Id. The court reasoned that since the wife had custody of the child, she had the right to the dependency exemption pursuant to 26 U.S.C. § 152(e) without the need for language in the agreement giving her that right. Id. "The unmistakable purpose of [having] includ[ed] the paragraph in the separation agreement providing the plaintiff with the dependency tax exemption was to make her right to the exemption permanent and unchangeable." Id., 662-63. As a result, the court stated that it did not need to reach the issue as to whether the order awarding the tax exemption was in the nature of child support and therefore modifiable. Id., 663.
Relying on the Kaiser case, the court in Ciolino stated: "The language of the dissolution agreement presently before the court clearly and unambiguously states that the plaintiff will have two tax deductions and the defendant one, until such time as the defendant remarries. The language of the agreement indicates that it was the parties' intent to provide each of them with a certain number of tax deductions, as long as they were available, unless there was a material change of circumstances in regard to the defendant's marital status. The conditional provision with respect to the defendant's marital status suggests that the parties made this agreement based on the assumption that the court could modify the tax deduction allocation if this one particular event took place. Based on the language of the agreement, the triggering event has not taken place, therefore, any reallocation is not appropriate. The fact that the parties foresaw a contingent event that might lead to a reallocation of the tax credits based on the defendant's remarrying implied that they viewed these tax credits in the nature of support and not property; however, there is no need to reach that issue in the present case because the language of the agreement is unambiguous and clear. Therefore, the motion for modification is denied." Ciolino, supra, 526.
The court noted, however, that "[t]he appellate courts of several other states have addressed this issue. Most have held that the allocation of tax deductions is modifiable."
"The Ohio Supreme Court held that Ohio trial courts may exercise their authority to allocate a child dependency deduction to a noncustodial parent, as long as the record demonstrates that the interest of the child would be furthered. Bobo v. Jewell, 38 Ohio St.3d 330, 528 N.E.2d 180 (1988). The North Carolina Court of Appeals has held that `where the parties waive the enforcement of their separation agreement by asking the court to determine child support in accordance with North Carolina law, the court shall apply the Guidelines in their entirety.' Ticconi v. Ticconi, 161 N.C.App.Ct. 730, 589 S.E.2d 371 (2003). That court further held that the provision of the North Carolina Child Support Guidelines as to tax deduction allocation can override the dissolution agreement of the parties as to this issue, thus allowing the court to modify allocation. Minnesota's Court of Appeals has held that modification of the allocation of dependency exemptions is permissible and analogous to modification of child support obligations. In re Marriage of Nelsen v. Thompson, No. A03-1616 (Minn.App.Ct., June 15, 2004). The Iowa Court of Appeals held that dependency exemptions are to be considered with child support and are modifiable. In re the Marriage of Crow, No. 2-694/01-1924 (Iowa Ct.App., November 25, 2002). In deciding whether or not modification of allocations was appropriate in one case, the Vermont Appellate Court has interpreted 15 V.S.A. § 661. `Vermont's Child Support Guidelines explicitly acknowledge the effect that dependency exemptions have upon available income of parties in a divorce. Section 661 of Title 15 requires the court to consider the parties' respective tax liabilities in calculating a maintenance supplement obligation.' Adamson v. Dodge, 174 Vt. 311, 816 A.2d 455 (2002). While the court in that case held that the trial court erred in granting the modification, authority of the court to modify was implicit in the court's analysis." Ciolino, supra, 526 n. 1.
In the separation agreement in the present case, Article XII Sec. 12.1 states: "The wife agrees that she will sign any declaration required by the Treasury Department of the Internal Revenue Service to implement this Agreement and agrees to provide such declaration to the Husband." The language of the agreement is clear and unambiguous. The dissolution judgment was rendered in accordance with it and, therefore, should be regarded as a contract. The language indicates that the defendant is to have the tax exemption for Matthew Blondeau. Any change to the financial circumstances of the parties regarding support of the minor child based on the plaintiff's income can be brought before the court as a motion to modify by the defendant pursuant to § 46b-86. See, e.g., BATTERSBY v. BATTERSBY, 218 Conn. 467, 472 (1991) 590 A.2d 4279 "It is clear that the trial court has the authority to allocate the income tax exemption and that doing so is a reasonable exercise of the court's wide discretion and broad equitable power"); McCARTHY v. McCARTHY, 60 Conn.App. 636, 637 (2000). The dispositive issue is whether the court improperly ordered the defendant to compensate the plaintiff for any tax exemptions transferred to the defendant. We affirm the judgment of the trial court)."
The court denies the plaintiff's motion for modification of the tax exemption.