Opinion
No. FA 07-4106479 S
December 28, 2007
MEMORANDUM OF DECISION ON MOTION FOR LEAVE TO AMEND CROSS COMPLAINT AND TO CITE IN PARTY DEFENDANTS
The pending motion presents an unusual application of a familiar rule.
Defendant moves that this court allow her to cite in the parents of the plaintiff. To her motion she appends a proposed amended cross complaint containing four new counts. The first of these alleges that the marital partners have an agreement with the parents to make investments in and provide services to a business known as "Town Liquor Store" in Voluntown, in consideration of which the parents were to convey to them title to the business and the real estate wherein it is conducted. She claims that they have failed to do so. In addition to demanding that a declaration of constructive trust be made with respect to the assets in response to those allegations, her remaining courts claim that the parents have been unjustly enriched, have conspired with plaintiff to defraud the defendant, and have breeched (sic) their contract with her.
It is well settled at least since Gaudio v. Gaudio, 23 Conn.App. 287 (1990) that a third person with a title interest in property that is claimed to be among the assets of a dissolution action may properly be joined as a party. Gaudio and other Connecticut cases which have approved the joinder of persons other than the husband and wife in such actions appear to have all involved claims that one party to the marriage has fraudulently transferred a property interest to that third party, in derogation of the rights of the spouse. See, e.g., Tessitore v. Tessitore, 31 Conn.App. 40 (1993); Dietter v. Dietter, 54 Conn.App. 481, cert. denied, 252 Conn. 906 (1999); and Jacobowitz v. Jacobowitz, 102 Conn.App. 332 (2007).
This factual coincidence, however, need not be interpreted as a limitation upon the scope of the principle that when property in the hands of a third party is claimed to be marital property, the joinder of such persons as parties may be warranted. Our decisional law has made it abundantly clear that trial courts have a duty to discern what comprises marital property under C.G.S. § 46b-81; Krafick v. Krafick, 234 Conn. 783 (1995); and a broad interpretation is the preferred alternative, Jewett v. Jewett, 265 Conn. 669 (2003). Unquestionably the business and the property where it is carried out would be included within the marital estate if title had previously been conveyed to one or both of the parties. In arguing that there has been a "fraudulent non-conveyance" defendant asserts nothing which is essentially at odds with the rule of those cases.
The case law from other states includes several examples in which courts have allowed the joinder of third parties not because they were transferees of one party, but because they resisted transferring title to a married party or parties under circumstances suggesting collusion with one of the spouses. Boucher v. Boucher, 131 N.H. 377; 553 A.2d 313 (1988), which involved title to a parcel of real estate held by the husband and his mother but upon which the couple had made substantial improvements before encountering marital difficulties, concluded that failure to include each titleholder as a party in the dissolution case would make a property transfer award unenforceable, and hence the mother's joinder was deemed necessary. In Gladys Baker Olsen Family Trust By and Through Olsen v. Eighth Judicial Dist. Court In and For County of Clark; 110 Nev. 548, 874 P.2d 778 (1994), the court held that allegations that a family trust contained assets being held for the equitable benefit of the husband alone justified joinder of the trust as a party. Van Buskirk v. Van Buskirk, 527 Pa. 218, 590 A.2d 4 (1991), Sexton v. Sexton, 298 S.C. 359, 380 S.E.2d 832 (1989), and In re Marriage of Peshek, 89 Ill.App.3d 959, 412 N.E.2d 698 (1980), all involved homes built or purchased by the divorcing parties upon land owned by one party's parent or parents. In Van Buskirk, the parents' participation in a scheme designed to thwart the actual conveyance of the realty to the couple made it necessary to join them as parties in the dissolution action. Both the South Carolina and the Illinois decisions include helpful analysis of what property interest married partners might have in an asset as to which neither holds title. Peshek deemed the interest in question, while at best "potential" or "alleged" at the time a party seeks permission to implead, to be quite distinct from a mere "expectancy" in that, should certain facts be found at trial, one result might be that title could thereupon be ordered transferred to one or both of the marital partners; it thus reversed a trial court ruling which allowed the parents to be kept out. Sexton approved a trial court ruling which held the parents in the case; while the appellate ruling is grounded in a precise reading of the state's statute defining marital property, and while our statute is differently phased, this court does not view the South Carolina's statutes provisions as at all antithetical to the concept of "property" contained in our statute as our case law has interpreted it.
In this case, it is clear that the allegations of the amended cross complaint which, if proven, might result in augmenting the marital estate, are sufficient to warrant granting defendant's motion and to allow her to implead her husband's parents, and her motion to that effect is granted.
The court retains a concern for the future progress of this case, noting that before this new complication the parties had already engaged in at least three contested pendente lite hearings in the first four months following the return date. Accordingly, so that this case not bog down in interminable skirmishes, the court directs defendant to forthwith proceed to cite in the parents pursuant to statute and the Practice Book. After they have appeared (or been defaulted for non-appearance as the case may be), this court hereby gives notice of its intention to conduct a scheduling conference so that all discovery and other pretrial preparations may be expedited and the barriers to trial reduced to the extent possible.