Watkins v. Demos , 172 Conn. App. 730 ( 2017 )

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BEVERLY WATKINS v. JOHN NICHOLAS DEMOS
(AC 38402)
Alvord, Sheldon and Mullins, Js.
Argued February 6—officially released May 2, 2017
(Appeal from Superior Court, judicial district of
Litchfield, Danaher, J. [dissolution judgment]; J. Moore,
J. [motion for contempt, motion to open judgment].)
Beverly Watkins, self-represented, the appellant
(plaintiff).
John N. Demos, self-represented, the appellee
(defendant).
Opinion
PER CURIAM. The plaintiff, Beverly Watkins, appeals
from the postjudgment orders of the court entered after
the dissolution of her marriage to the defendant, John
Nicholas Demos. The plaintiff challenges the trial
court’s denial of her postjudgment motion for contempt
and her motion to open the judgment. We affirm the
judgment of the trial court.
The following facts and procedural history are rele-
vant to the plaintiff’s claims on appeal. After the dissolu-
tion complaint had been pending for two years, the
court dissolved the parties’ seven year marriage on Feb-
ruary 6, 2015. The court’s judgment of dissolution incor-
porated by reference the parties’ signed and notarized
separation agreement. Section 10.3 of the separation
agreement states: ‘‘No later than February 15, 2015, the
[defendant] shall withdraw the two Forms 1099 issued
to the [plaintiff] for the year 2011. He shall provide his
attorney who shall provide to [the plaintiff] with proof
of said withdrawal prior to February 16, 2015.’’ The
defendant issued amended Forms 1099 for the plaintiff
for the 2011 tax year, which stated that the plaintiff
received zero dollars in income from the defendant
or his business in 2011. The defendant further filed
amended 2011 tax returns for himself and his business
to reflect that the plaintiff received zero dollars in
income from him or his business in 2011. The defendant
subsequently provided copies of the amended Forms
1099 to the plaintiff on February 17 and February 24,
2015.
On April 21, 2015, the plaintiff filed a postjudgment
motion for contempt, claiming that the defendant wil-
fully failed to comply with Section 10.3 of the separation
agreement by not withdrawing the 2011 Forms 1099.
In response, the defendant claimed that it was legally
impossible to comply with Section 10.3 of the separa-
tion agreement because once a Form 1099 is filed with
the Internal Revenue Service (IRS) it cannot be with-
drawn; it can only be amended.
On May 7, 2015, after a hearing, the court found that
‘‘the defendant did not comply with Section 10.3 of the
judgment. While the defendant argued impossibility of
performance, the defendant did not submit any evi-
dence of impossibility.’’ The court observed, however,
that the 2015 general instructions from the IRS website,
of which the court took judicial notice, ‘‘advise that a
return of a Form 1099 can only be voided before it is
filed with the IRS, and otherwise refers filers to the area
governing corrections. . . . The section pertaining to
corrections instructs the filer to do generally what the
defendant in this case did . . . .’’ Accordingly, the
court found that because ‘‘the defendant seems to have
at least substantially complied with’’ the IRS instruc-
tions for correcting the Forms 1099, his ‘‘noncompli-
ance with Section 10.3 was either not wilful or excused
by a good faith misunderstanding.’’ Accordingly, the
court denied the plaintiff’s motion for contempt.
Nevertheless, the court found that, as a matter of
equity, a remedial order was appropriate in this circum-
stance. The court observed that ‘‘one reason the plaintiff
negotiated for Section 10.3 was that she needed to dem-
onstrate that she was neither an independent contractor
nor an employee of the defendant or his business.’’
Because the court concluded that the amended 2011
Forms 1099 showing zero dollars could give rise to a
reasonable inference that the plaintiff was an employee
of the defendant or his business in 2011, the court fur-
ther ordered the defendant ‘‘to file a withdrawal of any
Form 1099-Misc that he issued to the plaintiff for 2011
within thirty days of this order and to provide ‘proof’
of this filing.’’ The court, in recognition of the fact that
it might be legally impossible to withdraw the plaintiff’s
2011 Forms 1099, also stated that if the defendant sub-
mitted documentation supporting his claim that it was
legally impossible to withdraw a Form 1099, the court
would consider hearing further argument and testimony
from the parties on the issue of legal impossibility.
On May 27, 2015, the defendant filed with the court
a notarized letter from a licensed tax attorney, which
stated: ‘‘You have asked me to address how to ‘with-
draw’ a Form 1099. I have been unable to locate any
method to withdraw an information return. IRS guid-
ance states that any incorrect information return should
be corrected by the filing of an amended return. Just
as in the case of filing a regular tax return, once filed,
it can only be amended, not withdrawn. The concept
of withdrawal of any return, to my knowledge, does
not exist.’’ On May 30, 2015, the defendant sent two
letters to the IRS requesting that the plaintiff’s 2011
Forms 1099 be withdrawn. On June 4, the court ordered
an additional hearing on the issue of legal impossibility.
On June 8, the plaintiff filed a motion to open judgment
on the ground that the parties’ mutual mistake concern-
ing the defendant’s ability to withdraw the plaintiff’s
2011 Forms 1099 warranted reformation of the dissolu-
tion separation agreement. On June 8, the IRS received
the defendant’s letters. The IRS provided the defendant
with a letter acknowledging receipt of his May 30 letters,
but the IRS did not indicate what, if any, actions had
been or would be taken in response to the defen-
dant’s letters.
On August 21, 2015, the court, after a hearing, denied
the plaintiff’s motion to open judgment. The court found
that the defendant complied with Section 10.3 of the
separation agreement by sending letters to the IRS
requesting that the plaintiff’s 2011 Forms 1099 be with-
drawn. The court rejected the plaintiff’s argument that
Section 10.3 required the defendant to ‘‘provide the
plaintiff with what she terms ‘tax indemnification’
. . . .’’ Accordingly, the court found that there was no
basis for finding mutual mistake. Thereafter, the court
modified its remedial order with respect to the plain-
tiff’s motion for contempt as follows: ‘‘If, at any time
in the future, the defendant’s failure to have filed in a
timely fashion the withdrawals of the tax year 2011
1099 forms, that is, his failure to have filed these with-
drawals on or before February 15, 2015, causes ascer-
tainable and quantifiable financial damage to the
plaintiff, the plaintiff may present these claims of dam-
ages to the court.’’
On September 9, 2015, the plaintiff filed a motion to
reargue and reconsider the court’s August 21 order.
The court granted the plaintiff’s motion to reargue. On
November 18, 2015, after a hearing, the court denied the
plaintiff’s motion to reconsider. This appeal followed.
On appeal, the plaintiff challenges the court’s findings
and rulings with respect to its orders denying her
motion for contempt and her motion to open judgment.
Therefore, we must determine whether the findings of
fact are clearly erroneous and whether the rulings
reflect an abuse of discretion. Mettler v. Mettler, 165
Conn. App. 829, 835–36, 140 A.3d 370 (2016) (motion
for contempt); Terry v. Terry, 102 Conn. App. 215, 222–
23, 925 A.2d 375 (motion to open judgment), cert.
denied, 284 Conn. 911, 931 A.2d 934 (2007). After a
careful review of the record, transcripts, briefs and oral
argument before this court, and having afforded the
plaintiff’s claims of error the appropriate scope of
review, we conclude that the findings are supported by
the record and that the court did not err in denying
the plaintiff’s motion for contempt and motion to open
judgment, or in issuing its remedial order.
The judgment is affirmed.