Opinion
No. FA01-0342634 S
July 27, 2005
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO TERMINATE STAY, DATED FEBRUARY 8, 2005
In this motion the defendant seeks an order that the automatic stay relative to the property orders be terminated on the grounds that the appeal is taken only for a delay and/or the due administration of justice so requires.
Many of the facts that give rise to this motion are not in dispute. This court heard the remand testimony of the parties in August 2004 and rendered a memorandum of decision on October 18, 2004. This court further ordered that the due administration of justice required that the automatic stay be terminated and sua sponte terminated the automatic stay. The plaintiff moved for a review of the order terminating the automatic stay. In the motion for review the plaintiff pointed out that the termination of the automatic stay was granted sua sponte and further argued that there had been no evidence presented to the court that would allow the court to conclude that the due administration of justice required a termination of the stay. The plaintiff's motion for review was granted by the appellate court and the automatic stay has been reinstated. The defendant under her motion to terminate stay dated February 8, 2005 has presented evidence in support of that motion. In deciding whether the due administration of justice warrants termination of a stay, the court should consider: (1) the likelihood that the appellant will prevail on appeal; (2) the irreparability of the injury to be suffered from the execution of the judgment; (3) the effect of the stay upon the other parties to the proceedings; and (4) the public interest involved.
This court finds that there is little likelihood that the appellant/plaintiff will prevail on appeal. The plaintiff's primary argument on appeal is that at the remand hearing held on August 2004, the trial court did not allow the plaintiff to present evidence regarding the cause of the breakdown of the marriage. Watson v. Watson, 221 Conn. 698, 607 A.2d 383 (1992) involved a remand hearing from a prior dissolution that was entered. The supreme court, in footnote 2, stated as follows:
The trial court concluded, pursuant to Sunbury v. Sunbury, 216 Conn. 673, 583 A.2d 636 (1990), that all property in the marital estate on the date of dissolution should be considered in making the property assignments pursuant to General Statutes 46b-81 and that the values assigned at the December 1988 dissolution hearing should apply. In Sunbury, this court construed 46b-81(a) and General Statutes 46b-82 as follows: "`In the absence of any exceptional intervening circumstances occurring in the meantime, [the date of the granting of the divorce would be the proper time as of which to determine the value of the estate of the parties upon which to base the division of property.'" id., 676. While the hearing on remand was pending, the defendant conveyed his one-fifth interest in the Woolworth Farm to his sisters. The defendant also executed a mortgage deed to his parents for $25,000 on the marital home. Because the defendant made these transactions after the entry of the dissolution decree, while this case was on appeal, the trial court properly treated the defendant's interest in these properties as it existed on the date of the dissolution. In Sunbury this court concluded that an increase in the value of the property did not constitute an exceptional intervening circumstance that would allow the trial court to value the property as of the date of the remand hearing. Similarly, in the present case, the trial court could reasonably have concluded that the plaintiff did not show the requisite exceptional intervening circumstances. We note, however, that on remand, the plaintiff may avail herself of the procedure established by General Statutes 46b-86, which authorizes the trial court to modify alimony and support orders after the entry of a dissolution judgment "upon a showing of a substantial change in the circumstances of either party . . ."
In addressing whether the remand trial court should have allowed relitigation of the plaintiff's claim that the defendant fraudulently conveyed his interest in the family home, the Watson court, in footnote 8, stated as follows:
The trial court found that the defendant had sufficient assets other than the marital home to satisfy his obligation to the plaintiff. "The plaintiff, relying primarily on Gaudio v. Gaudio, 23 Conn.App. 287, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990), argues that in the context of a dissolution action, a party seeking to set aside a conveyance as fraudulent need not prove, under the first test for setting aside a conveyance, that the transfer rendered the transferor unable to meet his obligations. We need not address this argument, however, since we conclude that the plaintiff has abandoned her claim that the defendant's conveyance of the marital home should have been set aside. We note, moreover, that at oral argument before this court, the plaintiff conceded that she had not objected to the relitigation on remand of the issue of whether the conveyance was fraudulent. (Emphasis added.)
This court interprets footnote 8 as sending a signal to the trial bench that in the absence of agreement of the parties that the trial court on a remand hearing should not relitigate an issue that was originally decided at the first hearing.
If this court were writing on a clean slate, this court would hold that it is the defendant that would suffer irreparable injury from the judgment not being executed and that there would be no irreparable injury to the plaintiff from the execution of the judgment. This court would further hold that the effect of the stay upon the parties would not result in any adverse effect to the plaintiff and that there was no public interest involved. However, this court does not know whether when the appellate court granted the plaintiff's motion for review of this court's order terminating the automatic stay whether the grounds for granting that motion was because the plaintiff risked irreparable harm or whether it was because this court entered sua sponte the order terminating the automatic stay. In the event the ruling by the appellate court was based on the plaintiff risking irreparable harm then this court is not going to review that finding. Accordingly, the defendant's motion to terminate stay is denied.
Axelrod, J.T.R.