Opinion
FSTCV156024936S
12-09-2015
Pasquale Malpeso v. Charlotte Malpeso
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE APPLICATION FOR DISCHARGE OF JUDGMENT LIEN (#101.00)
Hon. Charles T. Lee, J.
In this action, defendant filed a certificate of judgment lien on the title of plaintiff's real property for unsatisfied alimony arrearage, and the plaintiff subsequently filed an application for the discharge of the judgment lien. Defendant's position is that the lien is invalid because there is no money judgment for a sum certain to support the filing of the lien. The defendant submits that the definition of a family support judgment applies to continuing support obligations, and a sum certain is not necessary to obtain the lien. The primary question before the court, therefore, is whether the lien based on alimony obligation is valid absent a judgment for a sum certain, or if a sum certain is an indispensable element in securing a money judgment lien. As more fully set forth below, the court concludes that the lien is invalid and must be discharged, in the absence of a judgment for a sum certain.
Background
This application for the discharge of a judgment lien derives from an ongoing dissolution action between the parties. Malpeso v. Malpeso, Superior Court, judicial district of Stamford, Docket No. FA-01-0185205-S . The court in the dissolution action issued two rulings in which the underlying facts are not in dispute as far as it pertains to the present action. First, on July 16, 2013, the court (Schofield, J.) issued a decision on motions for modification and contempt made by the plaintiff in this action, Pasquale Malpeso, and the motion for contempt made by the defendant in this action, Charlotte Malpeso. The court found the plaintiff to be in contempt, and concluded that the defendant was owed $481,016.18, but reduced the plaintiff's periodic alimony payments from $20,000 per month to $12,000 per month because the parties' children had reached the age of majority. (Pl. Application, Ex. B.)
The court issued a subsequent decision on February 18, 2014, clarifying the July 16, 2013 decision. (Pl. Application, Ex. C.) Although the court again found that the plaintiff's decision not to pay alimony was willful, it recalculated the amount of arrearage to reflect when the parties' children reached majority, retroactively reducing the amount of arrearage by approximately $56,000. (Pl. Application Ex. C; Def. Objection at 2.) Both parties have appealed. (Pl. Memorandum in Support, Ex. C; Def. Objection at 2.)
While these appeals were pending, the defendant recorded a judgment lien on the plaintiff's real property in Westport on or around February 10, 2015. The judgment lien certificate states that the aforementioned judgment from the family court decision remains unsatisfied, and " provides for payment by Pasquale Malpeso to Charlotte Malpeso a sum of $820,000.00 in unallocated and allocated alimony arrearage." (Pl. Application Ex. A.)
The plaintiff then filed an application to discharge the judgment lien on March 31, 2015. He alleges that the judgment lien is erroneous, invalid, and without effect. He further alleges that he sent a written demand to the defendant on February 18, 2015, via her attorney, demanding a discharge of the lien, but on March 2, 2015, defendant refused. According to the plaintiff, the defendant's refusal to discharge the lien was made in bad faith and without just cause, warranting damages and attorneys fees pursuant to General Statutes § 49-51(a), in addition to the discharge of the lien.
(October 1, 1998, Zoarski, J.T.R.) (damages under Gen. Stat. § 49-59 are appropriate when payment has been made to satisfy the lien). The plaintiff also seeks damages under General Statutes § 49-59, which provides: " Each person who has lodged for record a certificate claiming a lien on any property, under the provisions of this chapter, shall, after receiving satisfaction of his claim or after the rendition of a final judgment against him showing that nothing is due thereon, within ten days after being requested in writing to do so by any person interested in having the lien removed, sign and lodge, in the office in which his original certificate was filed for record, a certificate that such lien is removed, which, when recorded, shall discharge such lien. If he fails to comply with such request, he shall pay to the party aggrieved such sum, not exceeding half the amount claimed by his lien, as the court having cognizance of the action brought therefor may determine." (Emphasis supplied.) Because there has been no satisfaction, the court need not consider damages under this provision. See Bank of New Haven v. Chrysler Financial Corp., Superior Court, judicial district of New Haven, Docket No. CV-98-0409845-S
The defendant filed an opposition to the plaintiff's application on August 17, 2015 (#110.00). The plaintiff then filed a memorandum in support on August 28 (#111.00). The court heard arguments on August 28, 2015.
The Parties' Positions
The crux of the plaintiff's argument is that the judgment lien is invalid because there is no judgment for a sum certain obligation. He asserts that the aforementioned February 2014 decision that superseded the July 2013 decision is not an order or judgment to pay the arrearage, and in any case, the ruling is being appealed. Moreover there is no basis for the amount of the lien of $820,000. Because a money judgment lien is impermissible without a definite judgment or amount, the lien must be discharged. The defendant counters that a " family support judgment" applies to orders of periodic support in which the plaintiff has a continuing obligation, and that a sum certain is unnecessary to obtain a money judgment lien for alimony arrearage.
Discussion
General Statutes § 49-51(a) provides:
Any person having an interest in any real or personal property described in any certificate of lien, which lien is invalid but not discharged of record, may give written notice to the lienor sent to him at his last-known address by registered mail or by certified mail, postage prepaid, return receipt requested, to discharge the lien. Upon receipt of such notice, the lienor shall discharge the lien by sending a release sufficient under section 52-380d, by first class mail, postage prepaid, to the person requesting the discharge. If the lien is not discharged within thirty days of the notice, that person may apply to the Superior Court for such a discharge, and the court may adjudge the validity or invalidity of the lien and may award the plaintiff damages for the failure of the defendant to make discharge upon request. If the court is of the opinion that such certificate of lien was filed without just cause, it may allow, in its discretion, damages to any person aggrieved by such failure to discharge, at the rate of one hundred dollars for each week after the expiration of such thirty days, but not exceeding in the whole the sum of five thousand dollars or an amount equal to the loss sustained by such aggrieved person as a result of such failure to discharge the lien, which loss shall include, but not be limited to, a reasonable attorney's fee, whichever is greater.
Additional relevant statutes in determining this case are as follows. General Statutes § 46b-82(c) provides: " Any postjudgment procedure afforded by chapter 906 shall be available to secure the present and future financial interests of a party in connection with a final order for the periodic payment of alimony." General Statutes § 46b-84(a) similarly provides: " Upon or subsequent to the annulment or dissolution of any marriage or the entry of a decree of legal separation or divorce, the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance. Any postjudgment procedure afforded by chapter 906 shall be available to secure the present and future financial interests of a party in connection with a final order for the periodic payment of child support."
General Statutes § 52-350a(13), found within chapter 906, however, provides: " For the purposes of this chapter and section 49-51, unless the context otherwise requires: 'Money judgment' means a judgment, order or decree of the court calling in whole or in part for the payment of a sum of money, other than a family support judgment. Money judgment includes any such money judgment . . . overdue support in the amount of five hundred dollars or more accruing after the entry of an initial family support judgment." Subsection (7) defines a " Family support judgment" as " a judgment, order or decree of the Superior Court or a family support magistrate for payment of a legal obligation for support or alimony to a spouse, former spouse or child and includes any such order for periodic payments whether issued pendente lite or otherwise."
Sections 46b-84(a) and 52-350a appear to conflict, because the former allows a party to use a postjudgment procedure to secure an interest in a final family support order, whereas the latter excludes a family support order from the definition of money judgment, and therefore evidently may not be utilized to enforce a money judgment. Kupersmith v. Kupersmith, 146 Conn.App. 79, 91, 78 A.3d 860 (2013). Our Appellate Court addressed this conflict in Kupersmith, where the defendant appealed the denial of his motion to vacate a writ of execution on real property because " General Statutes § § 52-350a and 52-350f prohibit a court from ordering a postjudgment property execution to enforce a family support judgment . . ." Id., 81.
General Statutes § 52-350f provides the means by which a party may enforce a money judgment.
The court first stated: " When two statutes conflict . . . [i]t is a well-settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling . . . Where there are two provisions in a statute, one of which is general and designed to apply to cases generally, and the other is particular and relates to only one case or subject within the scope of a general provision, then the particular provision must prevail; and if both cannot apply, the particular provision will be treated as an exception to the general provision . . . Additionally, [i]f the expressions of legislative will are irreconcilable, the latest prevails . . ." (Internal quotation marks omitted.) Id., 87-88. The decision continues: " Following our established principles of statutory interpretation, we attempt to reconcile conflicting statutes in a manner that allows for their coexistence . . . The 2003 amendment to 46b-84(a) was promulgated decades after the general restrictive language in § § 52-350a and 52-350f was existing law." Id., 91. The court ultimately concluded that the writ of execution was a permissible postjudgment procedure because " through a 2003 amendment to § 46b-84(a), it clearly was the legislature's intent to allow a party to utilize a writ of execution to secure delinquent child support payments." Id., 86. " Permitting chapter 906 procedures in certain family support judgments as a way of ensuring compliance with support obligations is consistent with the public policy of this state." Id., 92.
The defendant relies upon Kupersmith in her argument, and while the court acknowledges the relevance of this decision, it is readily distinguishable from the facts of the case at hand. To begin, the court in Kupersmith focused on the legislative intent of section 46b-84(a), finding that the statute was amended to secure child support payments. In the present case, the parties' children have reached the age of majority, and the judgment lien certificate that the defendant filed in this action was to secure " unallocated and allocated alimony arrearage." (Pl. Application Ex. A.) Thus, Kupersmith provides no authority for the proposition that a party may use a postjudgment procedure to secure a money judgment lien for alimony arrearage. In fact, the defendant cites to a case where the court found that an order to foreclose on a former spouse's real property based on the failure to pay a loan did not constitute a family support order, and in so ruling, expressly stated that the money judgment was not alimony. Profetto v. Lombardi, Superior Court, judicial district of New Britain, Docket No. CV-13-6023235-S (February 18, 2015, Tanzer, J.T.R.) .
More importantly, there is no order or judgment with a sum certain that could constitute the basis for a money judgment lien. In Kupersmith , the Appellate Court acknowledged the significance of the fact that the trial court ordered the property execution in the amount of $300,000, stating: " The foundation of the property execution in this case is the monetary terms of the 2011 stipulation judgment and, therefore, a sum certain." Id., 92. The court made clear that " a money judgment for chapter 906 purposes must be a sum certain." Id., 92 n.6.
A family court judgment " cannot fairly be characterized as a money judgment" if a party is not ordered to pay a definite amount, and the filing of a money judgment lien is therefore improper. Cooke v. Cooke, 99 Conn.App. 347, 351-52, 913 A.2d 480 (2007). In a more recent decision, one court stated, " The filing of this judgment lien is . . . flawed in that the amount due is not a sum certain but rather a circumstance wherein the wife was ordered to pay to the husband $225,000 less certain reductions which have not yet been ascertained nor completed." Scott v. Scott, Superior Court, judicial district of New London at Norwich, Docket No. FA-09-4111226-S (May 7, 2014, Shluger, J.) .
Examining the two decisions upon which the money judgment lien is purportedly based, Judge Schofield does not order a sum certain as to the amount that the plaintiff must pay. (Pl. Application Exs. B, C.) In fact, by her own account, the defendant is uncertain as to the amount the plaintiff owes her. She states: " The Judgmement [sic] read in the light most favorable to Husband, is $435,950.68." (Def. Memo, p. 7.) The basis for the amount of $820,000 has not been explained, and, notwithstanding how the defendant made this calculation, there is no money judgment justifying the defendant's filing of the money judgment lien absent any sum certain.
The July 2013 decision does state that " [t]he total sum due to the plaintiff is therefore $440,000, " in addition to $40,000 in attorney fees and $1,016.18 in costs. (Pl. Application Ex. B, p. 7.) This is not part of the order, but even if it were, the plaintiff correctly asserts that the February 2014 decision on the motion for clarification supersedes the July 2013 decision.
Conclusion
Accordingly, the court orders the discharge of the money judgment lien pursuant to General Statutes § 49-51(a). The court further finds that the lien was filed without just cause and awards statutory damages at the rate of one hundred dollars ($100) for each week after the expiration of thirty days after the notice on February 18, 2015, but not exceeding in the whole the sum of five thousand dollars ($5,000). If the plaintiff believes that the damages he sustained, including attorneys fees, is greater than the statutory rate, he shall submit an affidavit to the court detailing the damages within twenty days after the filing of this order.