This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






In re the Marriage of:


Marissa Ethel Rosenblum, petitioner,





Kenneth Samuel Rosenblum,



Filed June 27, 2006


Shumaker, Judge


Dakota County District Court

File No. F2-02-10045



A. Larry Katz, Susan A. Daudelin, Katz, Manka, Teplinsky, Due & Sobol, Ltd., 225 South Sixth Street, Suite 4150, Minneapolis, MN 55402 (for respondent)


Richard D. Goff, Richard D. Goff & Associates, 3908 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)


            Considered and decided by Shumaker, Presiding Judge; Wright, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges the district court’s determination that certain income-tax overpayments were refunds, to which respondent was entitled to half, rather than payments toward future estimated tax liabilities.  Because the evidence in the record does not support the court’s conclusion, we reverse.


Appellant Kenneth Rosenblum and respondent Marissa Rosenblum stipulated to the dissolution of their marriage and to the settlement of all pertinent issues.  The district court approved the parties’ stipulation and incorporated it into a judgment dated March 8, 2004.  Paragraph 33 of the judgment, labeled “TAX COOPERATION,” provided that the parties were to cooperate with each other to:

A.        Secure any income tax refund to which they may be entitled for 2003 and all the prior years of the marriage, equally dividing said refunds, but only after applying said refund(s) to any federal and/or state income tax due for calendar year 2003.


B.        Apply for an extension to file any late income tax returns.


C.        File an amendment to past income tax returns, if necessary.


In April 2004, appellant requested extensions of time to file the parties’ 2003 federal and state income-tax returns.  On the advice of certified public accountant Neil Lapidus, appellant included with the extension requests payments for estimated 2003 tax liabilities and estimated first-quarter taxes for 2004.  He paid $289,500 to the IRS, of which appellant contends $113,080 was to be applied to his estimated first-quarter 2004 tax liability; and he paid $31,524 to the State of Minnesota for his first-quarter state tax liability.

Lapidus later prepared the 2003 tax returns for appellant and respondent as “married filing jointly” and sent the returns to the parties for their review and signatures.  Both parties signed the returns and mailed them for filing in August 2004.

The federal tax return showed $113,080 as “the amount you overpaid,” and the form provided two choices the parties could make as to the overpayment.  They could indicate the amount “you want refunded to you” by completing the line for that figure, or they could insert on a different line the sum “you want applied to your 2004 estimated tax.”  The parties left blank the line for a refund and inserted $113,080 on the line for application to 2004 taxes.  Although the Minnesota tax form was different in that it designated any overpayment as a “refund,” it allowed for the application of an overpayment to the 2004 tax.  Just as they did on their federal return, the parties stated that they wanted the overpayment applied to the 2004 tax, and they inserted $31,524 in the blank for that choice.

In January 2005, respondent moved for an order to compel appellant to comply with paragraph 33A of the judgment, contending that the federal and state tax overpayments were in fact refunds and that she was entitled to receive one-half of any 2003 tax refund.  Appellant argued that the overpayments were not refunds but were payments from his nonmarital revenues toward his 2004 estimated first-quarter income taxes.

The district court noted the tax overpayments; found that appellant elected to have the overpayments “applied to his 2004 estimated tax instead of requesting a refund . . . ”; concluded that the judgment “is enforceable and clearly requires that the 2003 tax refund be divided equally [and that] [t]his Court does not have the authority or jurisdiction to order otherwise.”  Appellant contends that the district court’s finding that the tax overpayments were refunds is erroneous.


Tax refunds, if any, in this marriage-dissolution proceeding were part of the parties’ stipulated property division.  Property divisions in marriage dissolutions are final and unmodifiable, absent fraud, mistake, inadvertent neglect, or other reason that would justify reopening the judgment.  Minn. Stat. § 518.641, subd. 2(e) (2004); Redmond v. Redmond, 594 N.W.2d 272, 275 (Minn. App. 1999).  However, the district court may issue orders to enforce or implement a provision in a dissolution judgment as long as neither party’s substantive rights under the judgment are altered.  Kornberg v. Kornberg, 542 N.W.2d 379, 388 (Minn. 1996).

We review the district court’s order to enforce a provision in a judgment for an abuse of discretion.  Potter v. Potter, 471 N.W.2d 113, 114 (Minn. App. 1991).  The court abuses its discretion if its order lacks an evidentiary basis in the record.  See Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (stating that the court abuses its discretion by resolving a matter in a way that is “against logic and the facts on the record.”).

Although the parties discuss in their briefs issues regarding jurisdiction and rules for interpreting dissolution judgments, such matters are not involved here.  The district court correctly found that the judgment is clear and enforceable on its terms.  There is nothing to “interpret” but rather the question is how to apply a clear provision in the judgment to the facts.  Furthermore, the district court was also correct in ruling that it did not have the authority to make any order contrary to the clear provisions of the judgment.

The issue simply is whether appellant’s overpayments reflected on the parties’ 2003 tax returns are properly characterized as refunds rather than as payments of appellant’s estimated 2004 first-quarter tax liabilities.  The judgment is clear:  If the overpayments are tax refunds, respondent is entitled to one-half.

Respondent notes in her brief that “[t]he district court reviewed the evidence before it and was simply unconvinced that the overpayments reflected on the 2003 tax returns were anything other than what they appeared to be—refundable tax payments made by the parties for 2003 . . . .”  We hold that, on the evidence before it, the district court could not properly find the tax overpayments to be refunds and therefore abused its discretion by so finding.

The evidence before the court on respondent’s motion consisted of the dissolution judgment; the parties’ 2003 tax returns; letters from Lapidus giving filing instructions and indicating that the overpayments were applied to the federal and state “declaration of estimated tax”; Lapidus’s affidavit explaining the nature and application of the overpayments; tax summaries prepared by Lapidus; a photocopy of appellant’s check payable to the IRS in the sum of $289,500; and the parties’ respective affidavits.

This evidence shows that respondent signed the 2003 tax returns without question or protest.  Those returns classify the overpayments not as refunds but as payments toward appellant’s future tax obligations.  Although surely not conclusive, respondent’s acceptance and submission of the tax returns with that treatment of the overpayments support the inference that respondent neither considered nor intended the overpayments as refunds.

More significantly, the expert affidavit of Neil Lapidus describes appellant’s customary manner of reporting and paying his income taxes and explains how Lapidus calculated the parties’ 2003 tax liabilities and then notes that Lapidus added “overpayments” on both federal and state returns to be applied toward appellant’s 2004 tax obligations.  Furthermore, Lapidus explains that he combined the 2003 federal tax due with appellant’s estimated first-quarter 2004 tax because it was more convenient for appellant to write a single check than two checks.  Curiously, respondent argues that this procedure supports her contention, implying that had appellant written one check for the 2003 tax due and another for the 2004 estimates—albeit with the same total amount—she would not have claimed that the overpayment was a refund.  We are unable to follow the logic of this argument.

Contrary to respondent’s assertion that the evidence before the court shows that the overpayments were refunds, there is no evidence that reasonably supports that conclusion.  And respondent has not offered evidence to support the court’s finding but rather has merely argued that the court’s finding was correct.  Argument alone is not a sufficient basis for the court’s determination.

Respondent also argues that appellant failed to corroborate his contention with additional documentary evidence.  But respondent was the moving party and, therefore, had the burden of demonstrating that the challenged sums were refunds.  See Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001) (citing cases showing that moving party in family matters has burden of proof).  Not only did the evidence before the district court tend to negate respondent’s proposition that the overpayments were refunds, the most plausible explanation of the overpayments is the expert’s conclusion in his affidavit that “[i]t does not make sense that [appellant] would pay more in income taxes just so that he could pay one-half of said overpayment to his former spouse.”