Opinion
No. FA07-4028694S
February 14, 2008
MEMORANDUM OF DECISION
UNDISPUTED FACTS:
This matter appeared on the Short Calendar September 11, 2007 for resolution of a number of issues including defendant's Motion to Bifurcate (#120) filed August 29, 2007. The parties argued the motion, submitted various exhibits and submitted briefs on October 1st and 2nd, 2007. The time limit for deciding short calendar motions pursuant to Conn. Practice Book Section 11-19 has been waived by both parties.
The parties were married May 2, 1997 in Sayerville, New Jersey. The plaintiff, wife filed her action for a dissolution of marriage March 6, 2007. The marital assets include three parcels of real estate located in Ghana. The first piece of property at issue was owned by the defendant prior to the marriage. However during the marriage, marital funds were utilized to build a structure on the property. The second parcel of real estate was purchased during the marriage. The third parcel of real estate was purchased during the marriage and developed as a teak farm.
The third parcel is subject to litigation initiated by the defendant in Ghana. The plaintiff claims the third parcel was purchased with marital assets in the name of, Nana Samira Adwoa (Gyaasehemaa) (the plaintiff's mother and the defendant's mother-in-law) for the benefit of the minor children's education. The defendant disputes this and claims the maternal grandmother fraudulently purchased the property on May 3, 2003 in her name as the mother of Mr. Kwaku Kyeremateng Owusu and Ms. Akosua Addai and their siblings (and not as their grandmother). The defendant asserts that Nana Samira Adwoa (Gyaasehemaa) was supposed to purchase the property in the names of the plaintiff and defendant.
The court would note that the complaint indicates that the minor children of the parties are as follows: Kwaku K. Owusu date of birth October 1, 1997;
Akua A. Owusu date of birth February 23, 2001: and Yaa A. Owusu date of birth December 3, 2003. The court has no information regarding the identity of Ms. Akosua Addai or if it is simply a misspelling of Akua A. Owusu's name.
The defendant filed a writ of summons in the Republic of Ghana Circuit Court of Justice on August 7, 2007 alleging fraud against Nana Adwoa Somera Gyaasehemaa of Berekum (Exhibit A). In addition, Exhibit A indicates that the plaintiff and defendant were residents of the state of New Jersey. The dissolution action, filed in March 2007 lists the parties as both living in Glastonbury, Connecticut. Neither party has provided the court with any evidence of the current whereabouts or residence of the maternal grandmother, Nana Smira Adwoa (Gyausehmaa). Plaintiff's brief dated October 2, 2007 (#124) states that the maternal grandmother will convey the real estate at issue to the plaintiff and defendant forthwith and alleges that the maternal grandmother is in Connecticut. However, pleadings cannot be considered by the court as evidence.
ISSUES
(1). Is the maternal grandmother a necessary party to determine ownership of the teak farm in Ghana? If the maternal grandmother is a necessary party does the court have jurisdiction over her?
(2). Must the court order an appraisal of the real estate in Ghana requiring the appraiser to testify in Connecticut as to the value of the properties, which would be costly to the parties?
(3). What court has jurisdiction over the division of property located in Ghana?
ANALYSIS
The court held in Greco v. Greco, 275 Conn. 348, 355, 880 A.2d 872 (2005):
"It is true that trial courts are empowered to deal broadly with property and its equitable division incident to dissolution proceedings." (Internal quotation marks omitted.) Id., 362: "We are acutely aware that trial courts have wide discretion to formulate remedies in domestic relations cases, and we reiterate that [t]he power to act equitably is the keystone to the court's ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage. Without this wide discretion and broad equitable power, the courts in some cases might be unable fairly to resolve the parties' dispute . . ." (Internal quotation marks omitted.)
In Krafick v. Krafick, 234 Conn. 783, 792-93, 663 A.2d 365 (1995) the court held that: "The distribution of assets in a dissolution action is governed by [General Statutes] § 46b-81, which provides in pertinent part that a trial court may assign to either the husband or wife all or any part of the estate of the other . . . In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates . . . This approach to property division is commonly referred to as an `all-property' equitable distribution scheme . . . It does not limit, either by timing or method of acquisition or by source of funds, the property subject to a trial court's broad allocative power. 7 A. Rutkin, E. Effron K. Hogan, Connecticut Practice Series: Family Law and Practice with Forms (1991) § 27.1, pp. 398-400. There are three stages of analysis regarding the equitable distribution of each resource: first, whether the resource is property within § 46b-81 to be equitably distributed (classification); second, what is the appropriate method for determining the value of the property (valuation): and third, what is the most equitable distribution of the property between the parties (distribution)." (Citation omitted; internal quotation marks omitted.)
Is the maternal grandmother a necessary/indispensable party?
The court held in Mannweiler v. LaFlamme, 232 Conn. 27, 32-33, 653 A.2d 168 (1995): "Parties have been termed indispensable when their interest in the controversy is such that a final decree cannot be made without either affecting that interest or leaving the controversy in such condition that its final disposition may be inconsistent with equity and good conscience. Sturman v. Socha, 191 Conn. 1, 6, 463 A.2d 527 (1983); Standard Mattress Co. v. Hartford, 31 Conn.Sup. 279, 288, 329 A.2d 613 (1974); Gaudio v. Gaudio, 23 Conn.App. 287, 305-06, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990); see also Stamford Ridgeway Associates v. Board of Representatives, 214 Conn. 407, 439, 572 A.2d 951 (1990). Joinder of indispensable parties is mandated because due process principles make it essential that [such parties] be given notice and an opportunity to protect [their] interests by making [them] a party to the [action]. Fong v. Planning Zoning Board of Appeals, 212 Conn. 628, 634, 563 A.2d 293 (1989)." (Internal quotation marks omitted.) Id., 32 n. 9: "The rule requiring joinder of all necessary parties is not inflexible. As this court stated in National Transportation Co. v. Toquet, 123 Conn. 468, 484, 196 A. 344 (1937): Under our rule all such persons even though their presence is not necessary to a decision of the issues between the parties of record are required either to be made parties or to have reasonable notice of the action. Where they are reasonably within the reach of process and are not so numerous that it would impose an unreasonable burden upon the plaintiff they should be made parties; but if they or some of them are not reasonably available for service or to summon them or all of them into the action would put upon the plaintiff a burden he ought not fairly to be asked to assume, the provision for reasonable notice applies. The plaintiff may often accomplish the purpose intended by . . . securing authority from the court for them to defend in behalf of all." (Internal quotation marks omitted.)
Pitcher v. Hamrick, Superior Court, judicial district of New London, Docket No. CV 03 0566770 (April 12, 2005, Jones, J.):
"In a trust the trustee has legal title to the res of the trust. G. Bogert, Trusts (Rev.2d Ed. 1984) § 1, p. 5; see also B.A. Ballou Co. v. Citytrust, 218 Conn. 749, 753 n. 2, 591 A.2d 126 (1991). The trustee is the legal owner of trust property, and as such the trustee is the proper party for actions affecting title to trust property. 76 Am.Jur.2d 640, Trusts § 611 (2005). A trustee is a necessary party to assert or defend title to trust property. 76 Am. Jur.2d 638, Trusts § 609 (2005). [A]s a general rule, the trustee is [the] proper person to sue or be sued on behalf of a trust. 76 Am. Jur.2d 636, Trusts § 606 (2005). Mannweiler v. LaFlamme, 232 Conn. 27 [ 653 A.2d 168] (1995)." (Internal quotation marks omitted.)
In Randolph Foundation v. Appeal From Probate Court, Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 98 0167903 (April 3, 2001, Tierney, J.) the court stated: "As a general rule, the trustee is the proper person to sue or be sued on behalf of a trust. 76 Am. Jur. 2d, Trusts § 656. A trustee is a necessary party to assert or defend title to trust property, and is an indispensable party to an adjudication of rights of beneficiaries in a trust. 76 Am. Jur. 2d, Trusts § 672. Where a trust estate is liable directly on a contract or for goods or services provided it, or for a tort . . . the proper practice is either to sue the trustee as such or to join the trustee and beneficiary as defendants. 76 Am. Jur. 2d, Trusts § 679. The person who has the right to file suit under the substantive law generally is the real party in interest. At common law, where a cause of action is prosecuted on behalf of an express trust, the trustee is the real party in interest because the trustee has legal title to the cause. The corollary to this rule is that the beneficiary of a trust generally is not the real party in interest and may not sue in the name of the trust. A trust beneficiary has no legal title or ownership interest in the trust assets; his or her right to sue is ordinarily limited to the enforcement of the trust, according to its terms. Because an ordinary express trust is not an entity separate from its trustees, an action may not be maintained in the name of the trust. Thus, absent special circumstances, an action prosecuted for the benefit of a trust estate by a person other than the trustee is not brought in the name of a real party in interest and is demurrable. 76 Am. Jur. 2d, Trusts § 672." (Internal quotation marks omitted.)
The court held in Montanaro v. Gorelick, Superior Court, judicial district of Fairfield, Docket No. CV 97 0348688 (March 21, 2001, Mottolese, J.):
"[T]he trustee is the holder of the legal title and is the only party that the court believes is indispensable. Foot v. Branford, 109 Conn. 358, 361 [ 146 A. 723] (1929)."
It is clear to the court that the maternal grandmother is an indispensable party to the property division as title to the teak farm is in her name as mother of at least one of the minor children and an undetermined third party. The court has no EVIDENCE regarding the location of the maternal grandmother. If she is in Connecticut as alleged by the plaintiff's pleadings she should be made a party to this action so ownership of the teak farm can be determined. If the maternal grandmother is not in Connecticut and cannot be made a party to the dissolution action this court will be unable to determine if the teak farm is a marital asset. Additionally, the court would be without authority to order the transfer of the teak farm to either the plaintiff or the defendant. The parties have the power to remedy this by (1) having the maternal grandmother convey the property to the plaintiff and defendant, or (2) making the maternal grandmother a party to the dissolution action, if she is within the jurisdiction of the court. If neither option is available to the parties, the ownership of the teak farm should be decided by the courts of the Republic of Ghana. If the property is deemed an asset of either the plaintiff or defendant the court would then be in the position to treat it as a marital asset.
Must a local appraiser in Ghana testify in Connecticut as to the value of properties located in Ghana whose value is being disputed by the joint owners? A. Rutkin K. Hogan, 7 Connecticut Practice Series: Family Law and Practice With Forms (1999) § 26.6 p. 475-76:"If no orders are entered in connection with jointly owned property at the time (p. 476) of the dissolution, the parties will remain as joint owners thereafter." See also Hackett v. Hackett, 42 Conn.Sup. 36, 42, 598 A.2d 1112 (1990), aff'd, 26 Conn.App. 149, 598 A.2d 1103 (1991).
Turgeon v. Turgeon, 190 Conn. 269, 274, 460 A.2d 1260 (1983):
"In assessing the value of . . . property . . . the trier arrives at his own conclusions by weighing the opinions of the appraisers, the claims of the parties, and his own general knowledge of the elements going to establish value, and then employs the most appropriate method of determining valuation . . . The trial court has the right to accept so much of the testimony of the experts and the recognized appraisal methods which they employed as he finds applicable; his determination is reviewable only if he misapplies, overlooks, or gives a wrong or improper effect to any test or consideration which it was his duty to regard." (Internal quotation marks omitted.)
A. Rutkin K. Hogan, 7 Connecticut Practice Series: Family Law and Practice With Forms (1999) § 27.15, p. 525-26:
"A general rule of evidence in Connecticut as well as elsewhere is that an individual who is not qualified as an expert may, nevertheless testify as to the reasonable value of his or her own property or services. However, the party providing the opinion testimony must be the owner of the asset in question. Accordingly, it would be error to allow one spouse to testify as to the value of an asset which was owned by the other."
"Furthermore the competence of the witness to testify is established by demonstrating that the witness owns the property in question. No further demonstration of the party's knowledge of the particular values at issue is required. Once ownership is established, the owner's testimony as to value of the asset is allowable, even though that opinion may be based on hearsay.
"This rule is based on the common experience that an owner is familiar with his or her property and knows what it is worth. In addition this solves a difficulty which would otherwise arise if the item in question was unavailable for inspection or appraisal at the time of trial such as in cases where there are claims that assets have been hidden or secretly disposed of." See also Wolk v. Wolk, 191 Conn. 328, 333, 464 A.2d 780 (1983).
A. Rutkin K. Hogan, 7 Connecticut Practice Series: Family Law and Practice With Forms (1999) § 27.16, p. 526-27:
"It is not unusual in dissolution proceedings for the value of real estate to be established only by the "guestimates" of the parties. This is most common when the only property involved is the marital home; however, a similar approach is sometimes also seen with respect to [other property] . . . "Commonly, a party arrives at a value figure by adjusting the original purchase price upward or downward for any estimated change in value. Parties also frequently base estimated value figures upon the prices they believe were paid for other properties in the area."
"Values established in this manner are likely to be very subjective and often highly inaccurate. There may be no great harm in using this approach if the property is to be sold either immediately or at some future time and the proceeds divided on some proportional basis . . . [T]he guesstimate approach carries greater potential for unfairness if the share a party will receive at the time of the future sale is established as a fixed dollar amount as of the date of the dissolution. In such a case that amount will probably be based on some determination as to the value of the property and may not be fair if the value used is inaccurate."
"For purposes of a dissolution proceeding, the most significant value is likely to be the parties' net equity in the subject real estate. Accordingly, once a value is determined, it should be reduced by any outstanding mortgages or other obligations incurred in connection with the property."
In Watson v. Watson, 20 Conn.App. 551, 560, 568 A.2d 1044 (1990) the court stated as follows:
"It is well settled that an owner of property is competent to testify as to its market value . . . An owner can base his opinion on his familiarity with the value of similar properties in the same general area as his own . . . The witness, as the owner of the property, was qualified to render his opinion on the value of his land, including diminished value . . . The weight to be accorded that testimony rests with the trier of fact." (Citations omitted.)
It is clear that the parties can testify regarding the value of the two jointly owned parcels of real estate located in Ghana. Additionally, the parties are free to jointly choose an appraiser in Ghana and stipulate the value of the property is consistent with that of his/her appraisal. However, neither party is the owner of the teak farm in Ghana and it is clear that neither party can testify as to the value of this property.
Forum Non-Conveniens
The defendant's Motion to Bifurcate moves that the court bifurcate this matter with the result that it retains jurisdiction over the dissolution action in all respects except those issues relating to the interests of the parties to real estate located in the nation of Ghana. The defendant argues that this Court should leave the division of real estate located in Ghana to the appropriate jurisdictional process of the nation of Ghana in accordance with the doctrine of forum non-conveniens. Pursuant to Connecticut General Statutes Section 52-205 (2007) and Connecticut Practice Book Section 15-1 the court has the discretion to determine the order in which issue shall be tried. "Bifurcation may be appropriate in cases in which litigation of one issue may obviate the need to litigate another issue." Barry v. Quality Steel, 263 Conn. 424, 449 (2002) (citing Reichhold Chemicals, Inc. v. Hartford Accident Indemnity Co., 243 Conn. 401, 423 (1997)). Pursuant to the common-law doctrine of forum non-conveniens "a court-even though competent under law-may divest itself of jurisdiction, if for convenience of the litigants and the witnesses, it appears that the action should proceed in another forum in which the matter may also have been properly brought in the first place." Black's Law Dictionary. "[I]t is within the discretion of the trial court to decide where trial will best serve the convenience of the parties and the ends of justice." New Organics Co. v. Bloomfield Bakers, Inc., No. CV 020815943, 2007 WL 1675741, (Conn.Super. May 23, 2007) [ 43 Conn. L. Rptr. 470]. In Gager v. Gager, No. FA94-73635S, 1995 WL 534237 (Conn.Super. August 10, 1995) [ 15 Conn. L. Rptr. 258] the defendant previously commenced a divorce proceeding against the plaintiff in New York, and New York was the home of the minor child, the superior court of Connecticut, judicial district of Middlesex found that Connecticut was an inconvenient forum to determine "the distribution of the parties' assets until a New York court enters a custody order." Id. at 5. The court reasoned that "[s]ince custody is contested, if the court proceeded to adjudicate the plaintiff's divorce action, it would be faced with the impractical task of entering financial orders governing the parties without a clue as to which party New York will award custody of the minor child." Id. at 4. In the present case ownership in the value of land is being contested in the current dissolution. If this Court proceeded to adjudicate the divorce action, it would be faced with the prospect of entering financial orders without knowledge as to which party (if either party) would be awarded ownership rights to the teak farm in Ghana. Unless the maternal grandmother can be properly made a part of this action it is proper to allow the Republic of Ghana to resolve the dispute regarding the teak farm based on the doctrine of forum non-conveniens. However, the issue of the division of marital assets is clearly within the jurisdiction of the Connecticut courts and jurisdiction over the division of marital assets cannot be ceded to the courts of a foreign country. Connecticut general Statutes Section 46b-81 provides that the Superior Court may assign to either the husband or wife all or any part of the estate of the other. This assignment may include property located anywhere in the world. The jurisdiction of this court extends to all property of the marriage, through its jurisdiction over the parties.
Conclusion As to the Teak Farm:
The maternal grandmother is an indispensable party to resolution of the property division as title to the teak farm is in her name as mother of at least one of the minor children. The court has no EVIDENCE regarding the location of the maternal grandmother. If she is in Connecticut as alleged by the plaintiff's pleadings she must be made a party to this action so ownership of the teak farm can be determined. If the maternal grandmother is not in Connecticut and cannot be made a party to the dissolution action this court will be unable to determine if the teak farm is a marital asset.
Two Other Parcels of Real Estate in Ghana
A court of Connecticut having jurisdiction over the dissolution of the marriage of the parties has ability pursuant to Connecticut General Statutes Section 46b-81 to divide property wherever it is located. The parties have the ability to avoid the cost of each hiring an appraiser in Ghana to testify at trial. They can testify as to the value of the property as owners, they may stipulate as to the value of the properties, they can agree to hire an appraiser and except his or her value or they can hire two appraisers and average those results. This Court has not been made aware of any action that has been brought or for that matter, can be brought, in the Republic of Ghana, simply to determine the value of real estate. This court shall decide the issue of the property division in connection with the divorce. If ownership of the teak farm remains an issue the court finds that the maternal grandmother is an essential party to the determination of ownership. Therefore, that issue must be decided in a court with appropriate jurisdiction over all parties.