Silver v. Silver ( 2020 )

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AMY SILVER v. TREVOR SILVER
(AC 42777)
DiPentima, C. J., and Moll and Harper, Js.*
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from the judgment of the trial court
granting the plaintiff’s postjudgment motion to ‘‘clarify and effectuate’’
the dissolution judgment. During their marriage, the parties founded E
Co. The plaintiff owned 10 percent of its corporate stock and the defen-
dant owned the remaining 90 percent of the corporate stock. In its
dissolution judgment, the trial court found that the parties each owned
a 50 percent equitable interest in E Co. and ordered, inter alia, that the
parties execute a redemption agreement to effectuate the buyout of the
plaintiff’s 10 percent ownership of E Co.’s corporate stock and a deferred
compensation agreement to effectuate the buyout of the plaintiff’s
remaining 40 percent equitable interest in E Co. In her motion, the
plaintiff requested that the court clarify whether it intended to have her
receive her 40 percent interest in E Co. tax free, notwithstanding that
the dissolution judgment required the parties to execute a deferred
compensation agreement to carry out that buyout. She further requested
that the court order the defendant to execute certain corporate docu-
ments prepared by her counsel, which included a redemption agreement
pursuant to which the plaintiff would receive her entire 50 percent
interest in E Co. tax free and did not include a deferred compensation
agreement. The trial court granted the plaintiff’s motion, stating that it
was clarifying the terms of the dissolution judgment and that it intended
that the plaintiff receive the 40 percent interest of E Co. tax free in the
buyout. In addition, the court ordered the defendant to execute the
corporate documents prepared by the plaintiff’s counsel. Held that the
defendant could not prevail on his claim that the trial court abused its
discretion by opening and modifying the dissolution judgment in granting
the plaintiff’s motion to ‘‘clarify and effectuate’’ the dissolution judgment
when the plaintiff did not request such relief; although, in granting
the plaintiff’s motion, that court modified, rather than clarified, the
dissolution judgment, the court properly exercised its statutory (§ 52-
212a) authority to open and modify the judgment because the plaintiff,
within four months of the judgment, filed a motion that, despite being
titled as a motion to ‘‘clarify and effectuate’’ the dissolution judgment
was, in substance, a motion to open and modify the judgment pursuant
to § 52-212a, and the defendant was apprised of the relief requested by
the plaintiff and that the dissolution judgment would be modified if the
court granted her motion.
Argued May 18—officially released September 29, 2020
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk and tried to the court, Diana,
J.; judgment dissolving the marriage and granting cer-
tain other relief; thereafter, the court granted the plain-
tiff’s motion to clarify and issued a clarification of its
decision; subsequently, the court issued an order
regarding certain tax payments, and the defendant
appealed to this court; thereafter, the court issued an
order regarding certain corporate documents, and the
defendant filed an amended appeal. Affirmed.
Charles D. Ray, with whom, on the brief, was Angela
M. Healey, for the appellant (defendant).
Yakov Pyetranker, for the appellee (plaintiff).
Opinion
MOLL, J. In this dissolution matter, the defendant,
Trevor Silver, appeals from the judgment of the trial
court granting a postdissolution motion filed by the
plaintiff, Amy Silver, seeking to ‘‘clarify and effectuate’’
the judgment of dissolution rendered by the court. On
appeal, the defendant claims that the court improperly
modified the dissolution judgment in granting the plain-
tiff’s motion. We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. The parties were
married in 2008. In 2012, the parties founded Exusia,
Inc. (Exusia), an information technology consulting
business.1 The plaintiff was employed as Exusia’s chief
financial officer2 and owned 10 percent of Exusia’s cor-
porate stock. The defendant was employed as Exusia’s
chief executive officer and owned the remaining 90
percent of Exusia’s corporate stock.
On October 26, 2016, the plaintiff commenced the
present action seeking a dissolution of the parties’ mar-
riage on the ground that the marriage had broken down
irretrievably. The matter was tried to the court, Diana,
J., over the course of several days in October, 2018. Both
parties submitted proposed orders and posttrial briefs.
In the plaintiff’s proposed orders, with respect to
Exusia, the plaintiff requested in relevant part that the
court (1) find that, notwithstanding the plaintiff’s own-
ership of 10 percent of Exusia’s corporate stock, the
plaintiff possessed a 50 percent equitable interest in
Exusia, and (2) order the defendant to buy out the
plaintiff’s 50 percent interest in Exusia. The plaintiff
summarized her proposed terms for the division of Exu-
sia as follows: ‘‘As and for a lump sum property settle-
ment, the defendant shall buy out the plaintiff’s 50 [per-
cent] interest in Exusia. . . . In essence, the defendant
shall cause Exusia to redeem the plaintiff’s 10 [percent]
interest, and he shall buy out the plaintiff’s 40 [percent]
interest, with both payments made in installments over
the next ten (10) years. . . . The 10 [percent] redemp-
tion payout shall be taxable to the defendant as a con-
structive distribution. See 26 C.F.R. § 1.1041-2, Treas.
Reg. § 1-1041-2.3 . . . With respect to the 40 [percent]
buyout, the court shall order: that the buyout is a trans-
fer of property to a former spouse incident to the
divorce, such that no gain or loss shall be recognized;
see I.R.C. § 1041 (a) (2);4 that the property shall be
treated as acquired by the transferee by gift, and that
the basis of the transferee in the property shall be the
adjusted basis of the transferor; see I.R.C. § 1041 (b);5
and that the transfer is related to the cessation of the
marriage. See I.R.C. § 1041 (c) (2).6 . . . The court
shall order that the plaintiff’s buyout entitlement shall
be nondischargeable in bankruptcy. . . . The court
shall reserve continuing jurisdiction over the buyout
provision above to effectuate and implement the plain-
tiff’s receipt of her 50 [percent] interest.’’ (Footnotes
added.) The plaintiff attached to her proposed orders a
document setting forth specific terms for her proposed
orders regarding Exusia (schedule).
On December 4, 2018, the trial court issued a memo-
randum of decision rendering a judgment of dissolution.
With regard to Exusia, the court found that the parties
each owned a 50 percent equitable interest therein and
that the fair market value of 100 percent of the equity
thereof was $20,000,000. The court then entered the
following relevant orders regarding Exusia: ‘‘As and for
a lump sum property settlement, the defendant shall
buy out the plaintiff’s 50 percent interest in Exusia.
‘‘The buyout payout structure is set forth as follows:
The defendant shall cause Exusia to redeem the plain-
tiff’s 10 percent interest and he shall buy out the plain-
tiff’s 40 percent interest, with both interests paid out
as one payment made in installments over the next ten
(10) years. The 10 percent redemption payout shall be
taxable to the defendant as a constructive distribution.
See 26 C.F.R. § 1.1041-2, Treas. Reg. § 1.1041-2.
‘‘With respect to the 40 percent buyout, the court
orders: that the buyout is a transfer of property to a
former spouse incident to the divorce, such that no gain
or loss shall be recognized; see I.R.C. § 1041 (a) (2);
that the property shall be treated as acquired by the
transferee by gift, and that the basis of the transferee
in the property shall be the adjusted basis of the trans-
feror; see I.R.C. § 1041 (b); and that the transfer is
related to the cessation of the marriage. See I.R.C.
§ 1041 (c) (2).
‘‘The court orders that the plaintiff’s buyout entitle-
ment shall be nondischargeable in bankruptcy. The
court hereby reserves continuing jurisdiction over the
buyout provisions above to effectuate and implement
the plaintiff’s receipt of her 50 percent interest.
‘‘The specific buyout provisions . . . [are as fol-
lows]: (i) The defendant shall cause Exusia to redeem,
pursuant to a redemption agreement, the plaintiff’s 10
percent interest in [Exusia] for the sum of $2,000,000,
which shall be paid in quarterly installments of $50,000.
The foregoing 10 percent payment shall commence
effective March 15, 2019, and continue on the fifteenth
of each and every quarter thereafter for a term of ten
years.
‘‘(ii) The defendant shall cause Exusia to enter into
a deferred compensation agreement . . . with the
plaintiff, in the aggregate amount of $8,000,000 minus
$957,000,7 the plaintiff’s 40 percent interest in [Exusia].
The first $43,000 shall be payable to the plaintiff immedi-
ately upon execution of [certain] corporate documents,
as defined [elsewhere in the dissolution judgment]. The
remaining $7,000,000 shall be paid to the plaintiff in
equal quarterly installments of $175,000, due on the 15th
day of each quarter, for a term of [ten] years ([forty]
quarterly payments in total). The first payment is due
on March 15, 2019, and shall be paid quarterly as set
forth above ([forty] payments of $225,000 for [ten]
years). The defendant shall receive a credit in the
amount of $675,000 in consideration for the asset/liabil-
ity division. The final three payments due the plaintiff
shall not be paid by the defendant as satisfaction of
this credit.’’ (Footnote added.) The foregoing orders
substantively paralleled the terms in the plaintiff’s pro-
posed orders and in the schedule attached thereto.8
Neither party appealed from the dissolution judgment.
On January 15, 2019, the plaintiff filed a postdissolu-
tion motion to ‘‘clarify and effectuate’’ the judgment of
dissolution (January 15, 2019 motion). She requested
that the court issue a ‘‘clarification’’ explaining whether
it ‘‘intend[ed] that [she] receive her 40 [percent] share
of Exusia tax free in the buyout, irrespective of the
specific method of corporate documents implemented
to further this intent . . . . That is, did the court intend
that [she] receive her 40 [percent] share of Exusia tax
free in the buyout, regardless of references in the [disso-
lution] judgment to specific corporate documents, e.g.,
‘deferred compensation agreement’?’’ The plaintiff
maintained that the court intended for her to receive
her entire 50 percent interest in Exusia tax free, not-
withstanding that the dissolution judgment ordered that
40 percent of her interest would be paid to her by way
of a deferred compensation agreement, which would
result in the plaintiff bearing a tax burden.9 The plaintiff
represented that her corporate counsel had drafted a
redemption agreement pursuant to which the plaintiff
would receive her entire 50 percent interest in Exusia
tax free but that the defendant’s corporate counsel
refused to sign the agreement because it allegedly did
not comport with the terms of the dissolution judgment.
As relief, the plaintiff requested that the court (1) clarify
the dissolution judgment with regard to the division of
Exusia, and (2) order the defendant to execute the
corporate documents prepared by her corporate coun-
sel, which included the redemption agreement.
On January 28, 2019, the defendant, in a combined
document, filed (1) a response to the plaintiff’s January
15, 2019 motion and (2) a motion to clarify, requesting
that the court ‘‘clarify its memorandum of decision . . .
to provide that the buyout payment due to the [plaintiff]
be tax deductible to Exusia as deferred compensation.’’
The defendant asserted that the court adopted the plain-
tiff’s proposal that 40 percent of her interest in Exusia
be remitted to her by way of a deferred compensation
agreement, which would result in Exusia’s payment
thereof to the plaintiff being tax deductible to Exusia
and taxable to the plaintiff. The defendant contended
that the plaintiff was seeking to change the terms of
the judgment of dissolution to shift the tax burden to
the defendant, which would disturb the equal division of
the parties’ property. As relief, the defendant requested
that the court clarify that the payment of the plaintiff’s
40 percent interest in Exusia under the deferred com-
pensation agreement would be tax deductible to
Exusia.10
On January 30, 2019, the plaintiff filed a reply brief.
She contended that the court’s orders regarding Exusia
constituted property assignments that were intended
to be tax free to her. She conceded that a deferred
compensation agreement was not the proper mecha-
nism to effectuate the buyout of her 40 percent interest
in Exusia; however, she maintained that the court
intended to award her entire 50 interest in Exusia to
her tax free and that the court’s reference to a deferred
compensation agreement in the judgment of dissolution
was not a substantive term thereof.
On January 31, 2019, without holding a hearing, the
court granted the plaintiff’s January 15, 2019 motion,
stating that it was ‘‘clarif[ying]’’ the terms of the judg-
ment of dissolution as follows: ‘‘The court intended that
the plaintiff receive her 40 [percent] share of Exusia
tax free in the buyout, irrespective of references in the
judgment of the specific corporate documents used.
. . . The defendant shall execute the plaintiff’s corpo-
rate documents . . . including her redemption agree-
ment, as drafted by the plaintiff’s corporate counsel.’’
On February 19, 2019, the defendant filed a motion
to reargue, asserting that (1) the corporate documents
prepared by the plaintiff’s corporate counsel that the
court ordered the parties to execute contained terms
that were inconsistent with the judgment of dissolution,
and (2) the court’s determination that the plaintiff was
to receive 40 percent of her interest in Exusia tax free
disturbed the equitable division of the parties’ assets
in the judgment of dissolution. As relief, the defendant
requested, inter alia, that the court hear argument on
the issue of whether the buyout of the plaintiff’s 40
percent interest in Exusia was tax free to the plaintiff
and order the parties to execute revised corporate docu-
ments prepared by the defendant’s corporate counsel.
On February 22, 2019, the plaintiff filed an objection to
the defendant’s motion to reargue.
On March 18, 2019, the court granted the defendant’s
motion to reargue but, following a hearing, the court
denied the defendant’s requested relief without preju-
dice. The same day, the court issued a separate order
providing in relevant part that ‘‘[t]he plaintiff shall pay
no taxes on the money she receives as a result of the
redemption agreement.’’ In addition, the court contin-
ued the matter to April 24, 2019, when it would address
compliance with its order and any ‘‘unresolved issues’’
raised in the defendant’s motion to reargue. This appeal,
challenging the court’s granting of the plaintiff’s January
15, 2019 motion and its March 18, 2019 order, followed.
On April 24, 2019, following a hearing, the court
issued an order providing in relevant part that certain
language proposed by the plaintiff to insert into the
corporate documents prepared by her corporate coun-
sel was approved and that the corporate documents
were to be revised accordingly. Thereafter, the defen-
dant amended this appeal to encompass the April 24,
2019 order.11 Additional facts and procedural history
will be set forth as necessary.
On appeal, the defendant claims that the court’s
granting of the plaintiff’s January 15, 2019 motion
resulted in a modification, rather than a clarification,
of the judgment of dissolution. Specifically, he asserts
that the court substantively altered the dissolution judg-
ment’s provision requiring the parties to execute a
deferred compensation agreement to effectuate the
buyout of the plaintiff’s 40 percent interest in Exusia
by ruling that the plaintiff was to receive said interest
tax free and ordering the parties to execute the corpo-
rate documents prepared by the plaintiff’s corporate
counsel, which did not include a deferred compensation
agreement among them. The defendant contends that,
as a result of the court’s modification of the dissolution
judgment, his tax burden has been increased whereas
the plaintiff’s tax burden has been eliminated. The plain-
tiff argues that the court’s granting of the January 15,
2019 motion clarified the dissolution judgment to make
clear the court’s purported intent to have the plaintiff
receive her entire 50 percent interest in Exusia tax
free.12 We agree with the defendant that the court modi-
fied, rather than clarified, the judgment of dissolution.
To determine whether the court’s granting of the
plaintiff’s January 15, 2019 motion modified or clarified
the judgment of dissolution, ‘‘we must first construe
the trial court’s judgment. It is well established that the
construction of a judgment presents a question of law
over which we exercise plenary review. . . . In con-
struing a trial court’s judgment, [t]he determinative fac-
tor is the intention of the court as gathered from all
parts of the judgment. . . . The interpretation of a
judgment may involve the circumstances surrounding
the making of the judgment. . . . Effect must be given
to that which is clearly implied as well as to that which
is expressed. . . . The judgment should admit of a con-
sistent construction as a whole.’’ (Internal quotation
marks omitted.) Almeida v. Almeida, 190 Conn. App.
760, 766, 213 A.3d 28 (2019).
‘‘In order to determine the substance of the trial
court’s actions here, we begin by examining the defini-
tions of both alteration and clarification. An alteration
is defined as ‘[a] change of a thing from one form or
state to another; making a thing different from what it
was without destroying its identity.’ Black’s Law Dic-
tionary (4th Ed. 1968). ‘An alteration is an act done
upon the instrument by which its meaning or language
is changed. If what is written upon or erased from the
instrument has no tendency to produce this result, or
to mislead any person, it is not an alteration.’ Id. Simi-
larly, a modification is defined as ‘[a] change; an alter-
ation 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.’ Black’s Law Dictionary (6th Ed. 1990).
‘‘Conversely, to clarify something means to ‘free it
from confusion.’ Webster’s New World Dictionary of the
American Language (2d Ed. 1972). Thus, the purpose
of a clarification is to take a prior statement, decision
or order and make it easier to understand.’’ In re Haley
B., 262 Conn. 406, 413, 815 A.2d 113 (2003).
Applying the foregoing principles to the present case,
we conclude that the court’s granting of the plaintiff’s
January 15, 2019 motion resulted in a modification,
rather than a clarification, of the judgment of dissolu-
tion. In the dissolution judgment, the court ordered, as
expressly requested by the plaintiff in her proposed
orders, that the parties execute (1) a redemption agree-
ment to effectuate the buyout of the plaintiff’s 10 per-
cent ownership of Exusia corporate stock and (2) a
deferred compensation agreement to effectuate the
buyout of the plaintiff’s remaining 40 percent equitable
interest in Exusia. In granting the plaintiff’s January 15,
2019 motion, the court removed the requirement that
the parties execute a deferred compensation agreement
and, in lieu thereof, required the parties to execute a
redemption agreement to effectuate the buyout of the
plaintiff’s entire 50 percent interest in Exusia. In effect,
the court cancelled an original element of the dissolu-
tion judgment (the deferred compensation agreement)
and added a new element in its place (the expanded
redemption agreement). Accordingly, the court’s order
constituted a modification of the dissolution judgment.
Our conclusion that the court modified, rather than
clarified, the judgment of dissolution does not end our
inquiry. The plaintiff argues that, if the court’s ruling
constituted a modification of the dissolution judgment,
then the court properly exercised its authority to open
and modify the judgment within four months thereof.
See General Statutes § 52-212a.13 The defendant does
not contend that the dissolution judgment was not sub-
ject to being opened and modified within four months
pursuant to § 52-212a. Instead, the defendant contends
that the plaintiff did not file a motion to open and
modify the dissolution judgment but, rather, filed a
motion to clarify the judgment. We distill the defen-
dant’s claim to be that the court abused its discretion
by opening and modifying the dissolution judgment in
granting the plaintiff’s January 15, 2019 motion when
the plaintiff did not request such relief.14 See Von
Kohorn v. Von Kohorn, 132 Conn. App. 709, 711, 716,
33 A.3d 809 (2011) (applying abuse of discretion stan-
dard to defendant’s claim that trial court improperly
modified judgment of dissolution in response to plain-
tiff’s postdissolution ‘‘ ‘motion to reargue and for clarifi-
cation’ ’’ when plaintiff did not seek such relief). We
agree with the plaintiff and reject the defendant’s con-
tention that the court abused its discretion.
‘‘An appellate court will not disturb a trial court’s
orders in domestic relations cases unless the court has
abused its discretion or it is found that it could not
reasonably conclude as it did, based on the facts pre-
sented. . . . It is within the province of the trial court
to find facts and draw proper inferences from the evi-
dence presented. . . . In determining whether a trial
court has abused its broad discretion in domestic rela-
tions matters, we allow every reasonable presumption
in favor of the correctness of its action. . . . [T]o con-
clude that the trial court abused its discretion, we must
find that the court either incorrectly applied the law
or could not reasonably conclude as it did.’’ (Internal
quotation marks omitted.) Id., 713.
We first observe that the orders in the judgment of
dissolution regarding the division of Exusia were issued
pursuant to the court’s authority to assign property in
a dissolution action under General Statutes § 46b-81.15
‘‘The Superior Court has jurisdiction to assign property
in connection with a dissolution of marriage action, in
accordance with § 46b-81, but unlike periodic alimony
or child support, which usually are modifiable, the
assignment of property is nonmodifiable.’’ Taylor v.
Taylor, 57 Conn. App. 528, 533, 752 A.2d 1113 (2000).
That is not to say that a property assignment is never
subject to modification. Pursuant to § 52-212a, a court
may open and modify a property assignment in acting
on a motion seeking such relief filed within four months
of the judgment. See Passamano v. Passamano, 228
Conn. 85, 89 n.4, 634 A.2d 891 (1993) (‘‘a property divi-
sion order generally cannot be modified by the trial
court after the dissolution decree is entered, subject
only to being opened within four months from the
date the judgment is rendered under . . . § 52-212a’’
(emphasis added)); Fitzsimons v. Fitzsimons, 116
Conn. App. 449, 454–55, 975 A.2d 729 (2009) (concluding
that, pursuant to § 52-212a, trial court was vested with
discretion to modify property assignment in granting
motion seeking modification filed within six days of
dissolution judgment).
In the present case, the plaintiff’s January 15, 2019
motion, filed within four months of the judgment of
dissolution, was titled as a motion to ‘‘clarify and effec-
tuate’’ the dissolution judgment. ‘‘A motion for clarifica-
tion may be appropriate where there is an ambiguous
term in a judgment . . . but, where the movant’s
request would cause a substantive modification of an
existing judgment, a motion to open or set aside the
judgment would normally be necessary.’’ (Citation omit-
ted.) Rome v. Album, 73 Conn. App. 103, 109, 807 A.2d
1017 (2002). The nature of a motion, however, is not
determined by its title alone. ‘‘A court has broad discre-
tion to treat a motion for clarification of a judgment or
a motion to reargue a judgment as a motion to open
and modify the judgment provided that the motion is
filed within the four month period [set forth in § 52-
212a] and the substance of the motion and the relief
requested therein is sufficient to apprise the nonmovant
of the purpose of the motion.’’ Von Kohorn v. Von
Kohorn, supra, 132 Conn. App. 714–15. Moreover, we
are not bound by the characterizations of a motion by
the movant or by the trial court. See, e.g., In re Haley
B., supra, 262 Conn. 412–13 (‘‘[D]espite the [movant]
or the trial court’s characterization of the motion, we
examine the practical effect of the trial court’s ruling
in order to determine its nature. . . . Put differently,
even though the [movant’s] motion was labeled by the
trial court as a motion for clarification, we look to the
substance of the relief sought by the motion rather than
the form.’’ (Citation omitted.)); Fewtrell v. Fewtrell, 87
Conn. App. 526, 532, 865 A.2d 1240 (2005) (‘‘Although
the [movant] herself characterized her . . . pleading
as a ‘Motion to Modify,’ and the [trial] court, in its
responsive ruling, utilized language indicating acquies-
cence to that characterization, neither of these factors
influences the actual nature of the motion or the court’s
responsive ruling. It has been recognized by both this
court and our Supreme Court that despite the movant’s
or the trial court’s characterization of a motion, a
reviewing court examines the practical effect of the
responsive ruling in determining the nature of the plead-
ing. . . . On review, we look to the substance of the
relief sought by the motion and the practical effect of
the trial court’s responsive ruling.’’ (Citations
omitted.)).
In the January 15, 2019 motion, the plaintiff asked
the trial court to ‘‘clarify’’ the judgment of dissolution
by articulating whether the court intended to have her
receive her 40 percent interest in Exusia tax free not-
withstanding that the dissolution judgment required the
parties to execute a deferred compensation agreement
to carry out the buyout thereof. In addition, the plaintiff
asked the court to order the parties to execute the
corporate documents prepared by her corporate coun-
sel. The corporate documents did not include a deferred
compensation agreement among them; instead, in addi-
tion to other documents, the plaintiff’s corporate coun-
sel drafted a redemption agreement that governed the
transfer of the plaintiff’s entire 50 percent interest in
Exusia to the plaintiff. Notwithstanding the plaintiff’s
use of the term ‘‘clarify’’ in the January 15, 2019 motion,
the plaintiff, in essence, was requesting that the court
modify a substantive term of the dissolution judgment
by eliminating the requirement that the parties execute
a deferred compensation agreement with respect to the
buyout of the plaintiff’s 40 percent interest in Exusia
and, in lieu thereof, ordering the parties to use a differ-
ent vehicle—a redemption agreement—to effectuate
the transfer of the plaintiff’s entire 50 percent interest
in Exusia to her. As we concluded earlier in this opinion,
the effect of the court’s granting of the January 15, 2019
motion was a modification of the dissolution judgment.
Thus, we construe the January 15, 2019 motion as hav-
ing sought to open and to modify, rather than to clarify,
the dissolution judgment.
Additionally, it is evident that the defendant was
aware that the plaintiff’s January 15, 2019 motion was
requesting that the court open and modify the judgment
of dissolution. In his January 28, 2019 filing, in part,
responding to the January 15, 2019 motion, the defen-
dant argued that the corporate documents prepared
by the plaintiff’s counsel ran ‘‘directly contrary to the
[dissolution judgment]. The [plaintiff] propose[s] to do
away altogether with the court’s order that the buyout
be structured as a redemption agreement for the plain-
tiff’s [10] percent interest and a [deferred compensation
agreement] for her remaining 40 percent equitable inter-
est. Instead, the [plaintiff’s corporate] counsel simply
drafted a single redemption agreement that would
require Exusia to pay the entire 50 percent buyout
amount . . . in exchange for the plaintiff’s 10 [percent]
of [Exusia’s] shares. This is not what the [plaintiff]
proposed, it is not what the [defendant] proposed, and
it is not what the court ordered or intended.’’ (Footnote
omitted.) These statements demonstrate that the defen-
dant was apprised that the dissolution judgment would
be modified if the court granted the January 15, 2019
motion. See Fitzsimons v. Fitzsimons, supra, 116
Conn. App. 455 n.5 (construing plaintiff’s motion to
reargue as motion to open and modify judgment of
dissolution when, on basis of substance of motion and
transcript of hearing thereon, defendant had notice of
relief requested by plaintiff and defendant did not claim
prejudice); cf. Von Kohorn v. Von Kohorn, supra, 132
Conn. App. 715–16 (concluding that trial court, in grant-
ing plaintiff’s postdissolution ‘‘motion to reargue and
for clarification,’’ improperly modified dissolution judg-
ment by changing lifetime alimony award to eight year
alimony award when plaintiff did not request such relief
in motion and defendant was not apprised that such
relief was requested).16
In sum, within four months of the judgment of disso-
lution, the plaintiff filed a motion that, although titled
as a motion to ‘‘clarify and effectuate’’ the judgment of
dissolution, was, in substance, a motion to open and
modify the judgment pursuant to § 52-212a. The defen-
dant was apprised of the relief requested by the plaintiff.
Accordingly, we reject the defendant’s claim that the
court erred by modifying the dissolution judgment in
granting the plaintiff’s January 15, 2019 motion.17
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Exusia is an S corporation. ‘‘An S corporation is a corporation with no
more than 100 shareholders that passes through net income or losses to
those shareholders in accordance with Internal Revenue Code, Chapter 1,
Subchapter S.’’ R.D. Clark & Sons, Inc. v. Clark, 194 Conn. App. 690, 702
n.10, 222 A.3d 515 (2019).
2
The plaintiff’s employment at Exusia was terminated in January, 2018.
3
Title 26 of the Code of Federal Regulations, § 1.1041-2, provides in rele-
vant part: ‘‘[(a) (1)] Notwithstanding Q&A-9 of [26 C.F.R.] § 1.1041-1T (c), if
a corporation redeems stock owned by a spouse or former spouse (transferor
spouse), and the transferor spouse’s receipt of property in respect of such
redeemed stock is not treated, under applicable tax law, as resulting in a
constructive distribution to the other spouse or former spouse (nontrans-
feror spouse), then the form of the stock redemption shall be respected for
Federal income tax purposes. Therefore, the transferor spouse will be
treated as having received a distribution from the corporation in redemption
of stock.
‘‘(2) . . . Notwithstanding Q&A-9 of § 1.1041-1T (c), if a corporation
redeems stock owned by a transferor spouse, and the transferor spouse’s
receipt of property in respect of such redeemed stock is treated, under
applicable tax law, as resulting in a constructive distribution to the nontrans-
feror spouse, then the redeemed stock shall be deemed first to be transferred
by the transferor spouse to the nontransferor spouse and then to be trans-
ferred by the nontransferor spouse to the redeeming corporation. Any prop-
erty actually received by the transferor spouse from the redeeming corpora-
tion in respect of the redeemed stock shall be deemed first to be transferred
by the corporation to the nontransferor spouse in redemption of such
spouse’s stock and then to be transferred by the nontransferor spouse to
the transferor spouse.
‘‘[(b) (1)] Section 1041 [of title 26 of the United States Code] will not apply
to any of the transfers described in paragraph (a) (1) of this section. . . .
‘‘(2) . . . The tax consequences of each deemed transfer described in
paragraph (a) (2) of this section are determined under applicable provisions
of the Internal Revenue Code as if the spouses had actually made such
transfers. Accordingly, section 1041 applies to any deemed transfer of the
stock and redemption proceeds between the transferor spouse and the
nontransferor spouse, provided the requirements of section 1041 are other-
wise satisfied with respect to such deemed transfer. Section 1041, however,
will not apply to any deemed transfer of stock by the nontransferor spouse to
the redeeming corporation in exchange for the redemption proceeds. . . .’’
4
Title 26 of the United States Code, § 1041 (a), provides: ‘‘No gain or loss
shall be recognized on a transfer of property from an individual to (or in
trust for the benefit of)—
‘‘(1) a spouse, or
‘‘(2) a former spouse, but only if the transfer is incident to the divorce.’’
5
Title 26 of the United States Code, § 1041 (b), provides: ‘‘In the case of
any transfer of property described in subsection (a) [of 26 U.S.C. § 1041]—
‘‘(1) for purposes of this subtitle, the property shall be treated as acquired
by the transferee by gift, and
‘‘(2) the basis of the transferee in the property shall be the adjusted basis
of the transferor.’’
6
Title 26 of the United States Code, § 1041 (c), provides: ‘‘For purposes
of subsection (a) (2) [of 26 U.S.C. § 1041], a transfer of property is incident
to the divorce if such transfer—
‘‘(1) occurs within 1 year after the date on which the marriage ceases, or
‘‘(2) is related to the cessation of the marriage.’’
7
On August 10, 2018, the court, Shay, J., found the plaintiff in contempt
for withdrawing funds from a business account without the defendant’s
written consent or a court order. The court stated that it would give ‘‘some
consideration’’ to the plaintiff’s unauthorized withdrawal, in addition to the
statutory factors set forth in General Statutes § 46b-81, in rendering the
judgment of dissolution. In the memorandum of decision dissolving the
parties’ marriage, the court, Diana, J., subtracted $957,000—the sum of
funds improperly withdrawn by the plaintiff—from the amount owed to the
plaintiff for her 40 percent interest in Exusia.
8
The schedule provided in relevant part: ‘‘(1) The defendant shall cause
Exusia to redeem, pursuant to a [r]edemption [a]greement, the plaintiff’s
10 [percent] interest in [Exusia] for the sum of $3,320,000 [predicated on
the plaintiff’s valuation of Exusia], which shall be paid in equal monthly
installments of $27,666.66. The foregoing 10 [percent] payment shall com-
mence effective January 1, 2019, and continue on the first day of each and
every month thereafter.
‘‘(2) The defendant shall cause Exusia to enter into a [d]eferred [c]ompen-
sation [a]greement . . . with the plaintiff, in the aggregate amount of
$13,280,000 [predicated on the plaintiff’s valuation of Exusia], the plaintiff’s
40 [percent] interest in [Exusia]. The first $280,000 shall be payable to the
plaintiff immediately upon execution of [certain] [c]orporate [d]ocuments
[described elsewhere in the schedule]. The remaining $13,000,000 shall be
paid to the plaintiff in equal quarterly installments of $325,000, due on the
second payroll installment date each month, for a term of [ten] years ([forty]
quarterly payments in total).’’
9
The plaintiff’s counsel admits that he ‘‘mistakenly suggested’’ the use of
a deferred compensation agreement in the plaintiff’s proposed orders.
10
Alternatively, if the court determined that the payment of the plaintiff’s
40 percent interest was not tax deductible to Exusia, then the defendant
requested that the court extend the time period for the buyout.
11
On July 9, 2019, the trial court ordered that an automatic appellate
stay applied to its orders requiring the defendant (1) to sign the corporate
documents prepared by the plaintiff’s corporate counsel and (2) to remit
quarterly payments to the plaintiff. On August 7, 2019, the court issued an
order requiring the defendant to make certain monthly and quarterly pay-
ments to the plaintiff pursuant to a payment schedule.
12
The plaintiff also argues that we should decline review of the defendant’s
appeal because the defendant had filed his own motion to clarify (which
the court did not grant). We find this contention to be without merit.
13
General Statutes § 52-212a provides in relevant part: ‘‘Unless otherwise
provided by law and except in such cases in which the court has continuing
jurisdiction, a civil judgment or decree rendered in the Superior Court may
not be opened or set aside unless a motion to open or set aside is filed
within four months following the date on which it was rendered or passed.
. . .’’ See also Practice Book § 17-4.
14
Although the defendant maintains that the granting of the plaintiff’s
January 15, 2019 motion resulted in a modification of the judgment of
dissolution, the defendant does not challenge on appeal the merits of that
ruling; rather, the crux of the defendant’s claim is that the trial court commit-
ted error by modifying the judgment in response to the plaintiff’s motion
to ‘‘clarify and effectuate’’ the judgment. Thus, we do not address whether
the court erred on the merits in modifying the dissolution judgment.
Additionally, in his principal appellate brief, the defendant thinly asserts
that (1) the court did not hear argument before granting the plaintiff’s
January 15, 2019 motion and, thus, did not provide him with a ‘‘full opportu-
nity to be heard,’’ and (2) the court, during the hearing on his motion to
reargue, did not permit him to offer expert testimony on the implications
of the court’s modification of the dissolution judgment. In her appellate brief,
the plaintiff argues, inter alia, that the defendant has failed to adequately
brief these ‘‘ancillary’’ claims. In his reply brief, the defendant asserts that
there are no ‘‘ ‘ancillary’ issues’’ before this court and that ‘‘the issue in
this appeal is whether the trial court improperly modified its dissolution
judgment on a motion to clarify that judgment. [The defendant] was heard
on this subject in the trial court and presented testimony in opposition to
[the plaintiff’s] efforts to ‘clarify’ away her own mistake in calling for a
deferred compensation agreement.’’ In light of the foregoing, we conclude
that the defendant is not pursuing any additional claims on appeal regarding
the court’s granting of the January 15, 2019 motion without holding a hearing
or declining to allow the defendant to offer expert testimony during the
hearing on his motion to reargue.
15
General Statutes § 46b-81 provides in relevant part: ‘‘(a) At the time of
entering a decree . . . dissolving a marriage . . . pursuant to a complaint
under section 46b-45, the Superior Court may assign to either spouse all or
any part of the estate of the other spouse. . . .’’
16
The defendant claims that this court’s decision in Miller v. Miller, 16
Conn. App. 412, 547 A.2d 922, cert. denied, 209 Conn. 823, 552 A.2d 430
(1988), supports his position. We are not persuaded. In Miller, the trial court
rendered a judgment of dissolution in which, inter alia, it awarded the
plaintiff lump sum alimony in the amount of $500,000. Id., 414. The dissolu-
tion judgment provided that the defendant could pay the lump sum alimony
owed to the plaintiff by transferring securities to her. Id., 416. To comply
with the alimony order, the defendant transferred to the plaintiff shares of
stock with a market value of $499,923.25 and remitted a check to her for
the remaining balance. Id., 414. Within four months of the dissolution judg-
ment, the plaintiff filed a ‘‘motion for clarification’’ asking: ‘‘With regard to
the lump sum alimony payment of $500,000, what limitations, if any, are
there on the defendant’s right to transfer to the plaintiff securities that are
low in basis, low in dividend yield, and/or not likely to appreciate?’’ (Internal
quotation marks omitted.) Id. In response to the motion, the court issued
a memorandum of decision stating that the dissolution judgment had
‘‘awarded the plaintiff lump sum alimony of $500,000 which can be invested
and earn the plaintiff about $50,000 a year’’ and that the defendant’s transfer
of stock did not satisfy the alimony order. Id., 415. On appeal, the defendant
claimed that the trial court improperly modified the dissolution judgment
in response to the plaintiff’s ‘‘motion for clarification.’’ Id., 415–16. This court
agreed with the defendant, determining that the trial court had impermissibly
modified the dissolution judgment. Id., 416–17. This court further observed
that the plaintiff had neither appealed from the dissolution judgment nor
filed a motion to open and vacate the judgment. Id., 416.
We consider Miller to be distinguishable from the present case. There is
no indication that the ‘‘motion for clarification’’ filed in Miller requested
that the trial court modify the dissolution judgment; rather, the only relief
sought by the plaintiff in Miller was a clarification of the judgment. Thus,
as in Von Kohorn v. Von Kohorn, supra, 132 Conn. App. 715–16, the trial
court in Miller erred by modifying the dissolution judgment when the plaintiff
did not request such relief. In contrast, in the present case, the plaintiff’s
January 15, 2019 motion, in substance, requested that the trial court open
and modify the dissolution judgment.
17
The defendant also claims that if the trial court erred in granting the
plaintiff’s January 15, 2019 motion, then it also erred in entering its orders
on March 18, 2019, providing that ‘‘[t]he plaintiff shall pay no taxes on the
money she receives as a result of the redemption agreement,’’ and on April
24, 2019, providing that the corporate documents prepared by the plaintiff’s
corporate counsel would be revised to include certain language proposed
by the plaintiff. As a result of our conclusion that the court did not err in
granting the January 15, 2019 motion, we need not address these
remaining claims.