Opinion
No. CV06 4004491
August 2, 2006
MEMORANDUM OF DECISION
This is a declaratory judgment action in which the plaintiff, Bruce Bochicchio, administrator of the estate of Michael Bochicchio, requests that a mortgage on estate property in Harwinton be declared invalid. The defendant has filed two special defenses. This motion to strike (#102) tests the legal sufficiency of both special defenses. For the reasons given below, the motion is granted as to both special defenses.
FACTS
On March 30, 2005, Donna Bochicchio executed a promissory note and mortgage deed in favor of the defendant, Porzio Law Offices, LLC, in the amount of $50,000 while the defendant was representing Donna Bochicchio in the pending action for the dissolution of her marriage to Michael Bochicchio. On June 15, 2005, Donna Bochicchio was fatally shot by Michael Bochicchio, who also died on that same date, several hours after Donna's death. The real mortgage property encumbered by the mortgage deed was held by Donna Bochicchio and her husband as joint tenants with the rights of survivorship.
The plaintiff, Bruce Bochicchio, administrator of the estate of Michael Bochicchio, in his memorandum of law in support of his motion to strike dated April 28, 2006, and the defendant, in its memorandum of law in opposition to the motion to strike, stated that Donna Bochicchio executed the promissory note and mortgage deed on March 20, 2005. The mortgage deed, however, is dated March 30, 2005. Thus, the court will refer to March 30, 2005 as the date the mortgage was executed.
On or about January 19, 2006, almost ten months after the execution of the promissory note and mortgage deed and seven months following the death of Donna Bochicchio, the defendant recorded the March 30, 2005, mortgage on the Harwinton land records. The defendant has filed a claim for $50,000 against the estates of Donna Bochicchio and Michael Bochicchio.
DISCUSSION
"Whenever any party wishes to contest . . . the legal sufficiency of any answer to any complaint, counterclaim or cross complaint or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." (Internal quotation marks omitted.) Pamela B. v. Ment, 244 Conn. 296, 325 n. 21, 709 A.2d 1089 (1998), quoting Practice Book § 10-39. "In. ruling on the . . . motion to strike, the trial court [has an] obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
The plaintiff moves to strike the defendant's two special defenses, which are that (1) the late recording of the mortgage did not prejudice the plaintiff and (2) the mortgage debt was for legal fees, which were a necessary life expense for Donna Bochicchio. He argues that the defendant, in its special defenses, has not pleaded facts that are consistent with the allegations of his complaint but demonstrate, nonetheless, that he has no cause of action as is required by Practice Book § 10-50 in pleading a special defense. The plaintiff also contends that these special defenses are legally insufficient and irrelevant to his complaint which claims that the mortgage executed by Donna Bochicchio is invalid.
The defendant has filed a brief of approximately one page in length which addresses one sentence to the merits of each special defense. No case law or statutory authority is cited.
First Special Defense
The first special defense states: "The mortgage was valid when executed and was duly recorded and the late filing did not in any way prejudice the plaintiff." The only support for the viability of this defense offered by the defendant is this conclusory statement: "The defendant would submit that even if the plaintiff's allegations were true as alleged, the plaintiff would not be entitled to a discharge of the mortgage if, as alleged by the defendant, the late recording of the mortgage did not prejudice the plaintiff to the extent that the mortgage should be discharged." Despite the lack of authority cited by the defendant, the court has searched for authority to support this special defense. Among the cases reviewed are the early ones which establish the law in the area of late recordation of mortgages including Haskell v. Bissell, 11 Conn. 174 (1836) and Sanford v. DeForest, 85 Conn. 694 (1912). No support for the special defense has been found. The motion to strike is granted.
Second Special Defense
Next, the court must address the legal sufficiency of the defendant's second special defense, whether the underlying debt, the legal fees, which was secured by the mortgage, is a necessary life expense, and, therefore cannot be discharged. General Statutes § 46b-37, the spousal support statute, discusses the joint liability of each spouse for specific "reasonable and necessary" expenses. It provides in relevant part: "(a) Any purchase made by either a husband or wife in his or her own name shall be presumed, in the absence of notice to the contrary, to be made by him or her as an individual and he or she shall be liable for the purchase. (b) Notwithstanding the provisions of subsection (a) of this section, it shall be the joint duty of each spouse to support his or her family, and both shall be liable for: (1) The reasonable and necessary services of a physician or dentist; (2) hospital expenses rendered the husband or wife or minor child while residing in the family of his or her parents; (3) the rental of any dwelling unit actually occupied by the husband and wife as a residence and reasonably necessary to them for that purpose; and (4) any article purchased by either which has in fact gone to the support of the family, or for the joint benefit of both. (c) Notwithstanding the provisions of subsection (a) of this section, a spouse who abandons his or her spouse without cause shall be liable for the reasonable support of such other spouse while abandoned."
Cases that have considered the applicability of § 46b-37(b) have held that the statute must be strictly construed and not expanded any further than what the legislature intended. In Yale University School of Medicine v. Collier, 206 Conn. 31, 37, 536 A.2d 588 (1988), the Connecticut Supreme Court stated that "[b]ecause § 46b-37(b) is in derogation of the common law and creates liability where formerly none existed it should be strictly construed and not enlarged in its scope by the mechanics of construction." In Olympus Healthcare Group, Inc. v. Fazo, Superior Court, judicial district of Waterbury, Docket No. CV 02 0173524 (July 31, 2003, Gallagher, J.) ( 35 Conn. L. Rptr. 249, 251), the trial court strictly construed § 46b-37(b) and held that the statute does not impose liability for nursing home care, rather it "imposes liability for only two types of medical expenses: the services of a physician or dentist and hospital expenses." The statute creates liability for those expenses expressly stated in the statute. See also Medstar, Inc. v. DiCarlo, Superior Court, judicial district of Waterbury, Docket No. CV 0134469 (September 30, 1996, Vertefeuille, J.) ( 17 Conn. L. Rptr. 638, 638) (court strictly construed § 46b-37(b) and concluded that the language of the statute imposes liability for only two types of medical expenses).
Research has revealed one Connecticut case that appears it may have included legal fees as "reasonable support" under § 46b-37(c). In Bandler v. Sansone, Superior Court, judicial district of Stamford, Docket No. CV 92 0122548 (April 13, 1993, Lewis, J.) ( 8 Conn. L. Rptr. 579), the plaintiff, Michael Bandler, sued the defendant, Ramona Sansone for $5,000 to recover money he had loaned her. In count one, the plaintiff alleged that Leonard Sansone, Ramona Sansone's husband, was also responsible for the debt because she needed money to rent her own place and to hire a lawyer to obtain a court order protecting her against her husband. In count two, the plaintiff alleged that Leonard Sansone provided no support to his wife during their period of forced separation. Leonard Sansone moved to strike count two arguing that it did not state facts setting forth a cause of action against him. The court reviewed the plaintiff's cause of action that he based on § 46b-37(c), which provides that "a spouse is not responsible for any liability incurred by the other spouse during or after separation as long as the spouse liable for support of the other spouse has provided the other spouse with reasonable support." (Emphasis added.) Id., 580; Calway v. Calway, 26 Conn.App. 737, 746, 603 A.2d 434 (1992). In construing the complaint in a manner most favorable to the plaintiff, the court denied Leonard Sansone's motion to strike stating that the plaintiff set forth a cause of action based on § 46b-37. The court reasoned that the plaintiff had "alleged that he provided money to Ramona Sansone for her rental of a dwelling unit and for her support during a time that she was separated from her husband, and further that her husband, Leonard Sansone, did not provide her `with reasonable support' during that period." (Emphasis added.) Id. Based on the court's statement, it appears that it included legal fees as a "reasonable support" cost since her fees were a portion of the $5,000 the plaintiff was attempting to collect.
In the present case, it is the defendant's contention that the legal services it provided Donna Bochicchio were necessary life expenses and the responsibility of the decedent Michael Bochicchio. The defendant, however, provides no further explanation in its special defense, nor does it even allege that this cause of action is based on § 46b-37. Section 46b-37 specifically identifies the type of support that is the joint duty of each spouse. This list does not include legal fees, and as the cases have explained, § 46b-37(b) "should be strictly construed."
The defendant's second special defense does not allege that Michael Bochicchio did not provide "reasonable support" to Donna Bochicchio during their separation. Since the statute should be strictly construed, the allegations fail to include all of the facts necessary to constitute a § 46b-37(c) action, notwithstanding Bandler v. Sansone, supra, 8 Conn. L. Rptr. 579. Accordingly, the plaintiff's motion to strike the defendant's second special defense is granted.