Summary
In Aksomitas v. Aksomitas, 2009 WL 4683556, 48 Conn. L. Rptr. 750 (Conn.Super.Ct. Nov.16, 2009), the wife attempted to bring a fraudulent conveyance action against her stepson in the family division of the superior court after the demise of her husband during the divorce trial, but prior to judgment.
Summary of this case from Malave v. MalaveOpinion
No. HHD-FA-084034768S
November 16, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS #173
The plaintiff brought this action to dissolve his marriage with the defendant on December 11, 2007, with a return date of January 8, 2008. Trial began early in the 2008-2009 court term on October 22, 2008, and on the second day of trial the court granted the defendant's motion to add Allyn Aksomitas, the plaintiff's son from a previous marriage, as a cross-defendant. The defendant then filed a cross-complaint that added claims of fraudulent conveyance and constructive trust against the plaintiff and his son. During trial, the court was notified that the plaintiff husband had died. A motion to dismiss this action has now been filed by counsel for the deceased plaintiff and by the plaintiff's son. The issues presented by that motion are whether the court may act on a motion filed by counsel for a deceased party and whether the defendant's claims of fraudulent conveyance and constructive trust against Albert Aksomitas and Allyn Aksomitas will still be heard in this action and by this court in light of the plaintiff's recent death.
Although the normal method of notifying the court that a party has died is by the filing of a suggestion of death notice; see, e.g., Coughlin v. Anderson, 270 Conn. 487, 490 n. 2, 853 A.2d 460 (2004), and Rocque v. DeMilo Co., 85 Conn.App. 512, 517, 857 A.2d 976, 986 (2004); none has been filed here. Nonetheless, the court will act on the assumption that the plaintiff is dead based on the oral representations of counsel and the averments of their pleadings.
For the reasons discussed below, the motion to dismiss is denied, but, as also explained below, for different reasons as to the claims asserted by counsel for the deceased plaintiff and to those made by Allyn Aksomitas. Since the plaintiff's death dissolved the parties' marriage, this action no longer presents a family relations matter. Since the superior court nonetheless retains jurisdiction to hear the claims of fraudulent conveyance and constructive trust brought by the cross-complaint plaintiff, Geraldine Aksomitas, this court exercises its discretion under General Statutes Section 46b-2 to transfer the second and third counts of the defendant's cross-complaint to the civil docket.
Section 46b-2 of the General Statutes provides as follows: "All proceedings involving a family relations matter shall be first placed on the family relations docket of the Superior Court; and except for juvenile matters which are provided for in section 46b-133, the judge before whom such proceeding is brought, may transfer such matter to the criminal or civil docket of said court if he deems that such docket is more suitable for the disposition of the case. Any case so entered or transferred to either docket shall be proceeded upon as are other cases of a like nature standing on such docket."
I FACTS
The parties were married on April 15, 1985, and resided together during their marriage at 210 Pine Ridge in Wethersfield, Connecticut, in a home acquired by the plaintiff before the marriage. There were no children born of the marriage, but both parties had adult children from previous marriages. Early in the marriage, the defendant sold her former residence and gave most of the proceeds to her grown children. On November 29, 2007, less than two weeks before his attorney instituted this action by signing the complaint, the plaintiff transferred the marital home to his son, Allyn, by quitclaim deed. The financial affidavit filed by the plaintiff at the time of trial and prepared by his son, Allyn, who was appointed voluntary conservator of the plaintiff's person and estate in March 2008, however, continued to list the property at 210 Pine Ridge as belonging to the plaintiff.
On June 2, 2009, after thirteen days of evidence and with sufficient additional trial dates scheduled that month to conclude the trial, this court was notified that the plaintiff had died. Trial of the case was then suspended while the court and parties considered how to proceed next. On the last day of evidence before the plaintiff's death, he had still been presenting his case in chief and was conducting direct examination of the defendant. While the defendant had offered some testimony relevant to her claims of fraudulent conveyance and constructive trust, she had not yet had an opportunity to present her own case-in-chief. As a cross-defendant and as plaintiff's conservator, Allyn Aksomitas was present in court throughout the trial and had testified extensively during the plaintiff's case, but his attorney was not often present. Despite the numerous days of trial, there is therefore probably considerable evidence still to be heard in this matter on the defendant's claims.
II Discussion A Counsel for the Deceased Plaintiff May Not Bring a Motion to Dismiss on Behalf of the Plaintiff
It has long been the law that death of a party revokes the authority of that person's attorney to continue to function as counsel for the deceased. Thus, in Hennessy v. Denihan, 110 Conn. 646, 648, 149 A. 250, 251 (1930), the court held that "the attorney for [deceased] could not prosecute his appeal to the Superior Court, since the death of his client revoked his authority to take any further action in the matter. He was without authority to enter the appeal which he had taken in the Superior Court, indeed, the taking of the appeal was a nullity." The motion filed by counsel for the deceased plaintiff must thus be denied for lack of authority on counsel's part to file such a motion.
B The Marriage Was Dissolved by the Plaintiff's Death
At common law, a personal action did not survive the death of one of the parties. An action for dissolution of marriage is clearly personal. As the court noted in Cox v. Armstrong, 122 Colo. 227, 231, 221 P.2d 371 (1950), "[a] divorce recognizes the validity of the marriage and requires a voluntary decision thereafter to terminate it," so only one of the parties to a marriage can bring a dissolution action due to the deeply personal nature of the action. Under the common law, therefore, an action for the dissolution of marriage did not survive the death of one of the spouses due to the personal nature of the action. See Misheff v. Misheff, Superior Court, Judicial District of Stamford-Norwalk at Stamford, Docket No. FA 940139817, (December 12, 1995) (Harrigan, J.) (citations omitted). The Connecticut legislature has codified this common law rule in General Statutes Section 46b-40(a), which provides that "[a] marriage is dissolved only by (1) the death of one of the parties or (2) a decree of annulment or dissolution of marriage by a court of competent jurisdiction." Thus, under both common and statutory law, the plaintiff's death dissolved the marriage between the parties.
The death of the plaintiff having accomplished the result sought by his cause of action, a judicial proceeding to dissolve the parties' marriage is no longer necessary, thereby avoiding the general rule of survival of actions set forth in General Section § 52-599(a) that "[a] cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person." Under subsection (c) of Section § 52-599, "[t]he provisions of this section shall not apply: (1) To any cause or right of action or to any civil action or proceeding the purpose or object of which is defeated or rendered useless by the death of any party thereto." Since the marriage of the parties was ended by the plaintiff's death, the purpose of the dissolution action has been "defeated or rendered useless" under Section 52-599(c)(1). The numerous cases cited in the brief of the cross-complaint defendant all make this same point: that death of a party to a dissolution action terminates that action.
C The Family Division of Superior Court No Longer Retains Statutory Authority to Hear This Matter since the Marriage between the Parties is Dissolved The family division of superior court, in which this matter is current pending, only has authority to hear family relations matters. Although the Connecticut superior court is a unified court of general jurisdiction, by statute and court rule the court has been organized into separate divisions. Section 46b-164t(a) of the General Statutes provides that "[t]he Superior Court shall consist of such divisions and parts thereof as shall be provided by the rules of Superior Court to provide the highest standards of justice and the most efficient operation of the court." Section 1.3 of the Practice Book provides that "[t]he superior court shall be divided into four divisions: family, civil, criminal, and housing." Section 1-4 provides that the "family division shall consist of the following parts: . . . (3) D — All other family relations matters, including dissolution of marriage or civil union cases." General Statutes Section 46b-1 provides that "family relations matters shall be matters affecting or involving: (1) Dissolution of marriage . . . and (17) all such other matters within the jurisdiction of the Superior Court concerning children or family relations as may be determined by the judges of said court." The Connecticut Practice Book Section 25-1 similarly explains that family matters are "any actions brought pursuant to General Statutes § 46b-1, including but not limited to dissolution of marriage . . ."The present action, however, consists of more than just a cause of action for dissolution of marriage and also includes the defendant's claims of constructive trust and fraudulent conveyance in her cross-complaint against her deceased husband and his son. While the plaintiff was still alive, those claims by the defendant were "matters affecting or involving . . . [d]issolution of marriage," in accordance with § 46b-1 of the General Statutes, as they could have affected the distribution of marital property if a dissolution judgment had been entered. With Allyn Aksomitas holding legal title to the property in question, the defendant's claims of fraudulent conveyance and constructive trust could only be properly heard, and the property restored to the marital estate, if he were joined to this action. Allyn Aksomitas was thus joined as a cross-defendant in this dissolution action in order for the court to determine the property rights of the husband and wife and properly decide the wife's claims regarding the marital home.
Connecticut courts follow the majority rule throughout the country that "a third person with a claimed interest in property that is the subject of a dissolution action may properly be joined as a party. That rule holds that although the spouses are ordinarily the only proper parties to a dissolution action, joinder or intervention of third parties is permissible where third parties claim an interest in property involved in the proceedings." Gaudio v. Gaudio, 23 Conn.App. 287, 293-94, 580 A.2d 1212 (1990). This rule furthers the policies of "avoiding multiple suits" and "granting complete relief in a single proceeding." Id. at 293. In Gaudio, the court determined that the trial court properly joined a third party to the dissolution action, who was allegedly the transferee of a fraudulent conveyance of the defendant's corporate stock, since the third party's presence was required to "adjudicate the property rights of the parties to the dissolution." Id. Connecticut courts also allow joinder or intervention of third parties in dissolution actions where one of the parties to the action alleges that there had been a fraudulent conveyance of marital property, since the property at issue would "otherwise be subject to distribution in the dissolution action." Aarestrup v. Harwood-Aarestrup, 49 Conn.Sup. 219, 221-24, 868 A.2d 817 (Super.Ct. 2005). Allyn Aksomitas was joined as a cross-defendant in this dissolution action in order for this court to determine the property rights of the husband and wife and properly decide the wife's claims of fraudulent conveyance and constructive trust. He has a claimed interest in the property in question since he now holds title to the property. If the deed to this property had not been transferred to Allyn Aksomitas, the home would have been subject to equitable distribution in the dissolution action. Thus, in order to determine the ownership of the property in dispute, this court joined Allyn Aksomitas as a cross defendant to the dissolution action.
Since the plaintiff's demise resulted in the dissolution of the parties' marriage, however, the defendant's claims of constructive trust and fraudulent conveyance in the second and third counts of her cross complaint no longer have any bearing on a family relations matter. As the court reasoned in Gregorio v. Gregorio, Superior Court, judicial district of Fairfield, Docket No. FA05401260, (March 31, 2006) (Dennis, J.), "[t]he remaining counts . . . have no appropriate status as family relations matters once they are stripped from the corresponding dissolution action."
D Transfer to the Civil Division
The defendant's remaining causes of action against her ex-husband and his son are not lost or destroyed by the plaintiff's death, but under the provisions of General Statutes § 52-599 may survive against the executor or administrator of the plaintiff's estate. See, e.g., Kissel v. Kissel, Superior Court, Judicial District of Stamford-Norwalk, Docket No. FSTFA 054003907-S, (November 8, 2006) (Tierney, J.), and Misheff v. Misheff, supra, both holding that an action for fraudulent conveyance survives death of the defendant. "Although at common law the death of a sole plaintiff or defendant abated an action[,] by virtue of § 52-599, Connecticut's right of survival statute, a cause of action can survive if a representative of the decedent's estate is substituted for the decedent. It is a well established principle, however, that during the interval between the death and the revival of the action by the appearance of the executor or administrator, the cause has no vitality. The surviving party and the court alike are powerless to proceed with it." (Quotations omitted; citations omitted.) Burton v. Browd, 258 Conn. 566, 570-71, 783 A.2d 457 (2001). Under § 52-599 (b), Ms. Aksomitas, as the cross-complaint plaintiff, has "one year after receiving written notification of the [cross-complaint] defendant's death, . . . to apply to the court in which the action is pending for an order to substitute the decedent's executor or administrator in the place of the decedent."
This case has a long, ongoing history, with the first date of trial early in the 2008-2009 term and the most recent day of evidence on May 18, 2009. In May, it was reasonable to anticipate that the trial would conclude by the end of that term in late August 2009, but the delay caused by the plaintiff's recent death made that impossible. The 2008-2009 court term has ended, and this judge is now assigned to the judicial district of Tolland for the current court term. Devoting the numerous days probably necessary to try this matter to its conclusion during the present judicial term would interfere with this judge's responsibilities in the Judicial District of Tolland. Although a motion to substitute the executor and/or administrator of the estate of Albert Aksomitas for the deceased cross-complaint defendant would be acted on favorably by the superior court, none has yet been filed; and Ms. Aksomitas has at least one year (it is unknown when she received written notice of his death) from the date of her ex-husband's death to seek such an order. Thus, resumption of the trial before this judge might not occur for many months.
This court thus concludes that the more appropriate forum for Ms. Aksomitas's claims of fraudulent conveyance and constructive trust is the civil division of the superior court. Other Connecticut courts have reached this same conclusion in similar cases. For instance, in Gregorio v. Gregorio, Superior Court, Judicial District of Fairfield, Docket No. FA05401260, (March 31, 2006) (Dennis, J.), the court reasoned that "[a]llegations seeking declaratory judgment and imposition of a constructive trust . . . in the absence of a matter affecting children or family relations as described in § 46b-1, normally would be placed on the civil docket of the Superior Court" and transferred these additional counts to the civil docket pursuant to Section 46b-2. Similarly, in Kissel v. Kissel, supra, the court determined that it was appropriate to grant the plaintiff-wife's motion to transfer her claim of fraud against the defendant-husband to the civil docket after the defendant's death. The court noted that judges have authority to transfer cases from one venue to another under the common law based on their sound discretion. It then reasoned that the standards for transfer of venue are "consistent with the intent and purpose of General Statutes § 46b-2." Id. Based on this reasoning, the court granted the plaintiff's motion to transfer her claim of fraud against the defendant to the civil docket. Id.
III CONCLUSION
Although the death of the plaintiff may deprive the court of personal jurisdiction over him, the defendant's cross complaint against him may survive against the executor or administrator of his estate. Moreover, no compelling argument has been advanced as to why the death of one party should deprive the superior court of jurisdiction or authority to hear the cross-complaint against the remaining cross-defendant that transfer of the family home to Allyn Aksomitas should be voided. Since the defendant's second and third counts are no longer family relations matters, the court concludes it would therefore be appropriate to declare a mistrial on the trial of the second and third counts of the defendant's cross-complaint and exercises its discretion pursuant to § 46b-2 to transfer these counts to the civil division. Claims of constructive trust and fraudulent conveyance are frequently heard by the civil court, and this court deems that the civil docket is the more appropriate venue for these claims to be heard.