Opinion
No. FST FA 09-4015636 S
November 7, 2011
MEMORANDUM OF DECISION RE MOTION FOR ORDER DATED SEPTEMBER 28, 2011 (#185.00)
This Motion raises the question of what pleadings are to be filed by litigants when a non-marital party has intervened in a dissolution of marriage action. The intervenor provisions of the Practice Book and the statutes are silent on the subject of pleading after intervention. P.B. § 9-6. Gen. Stat. §§ 52-102, 52-107. Appellate case law gives no consistent guidance on pleadings after intervention. Washington Trust Co. v. Smith, 241 Conn. 734, 748 (1997).
Ronald I. Chorches, Trustee in Bankruptcy for the Estate of Audry H. Peterson filed this Motion for Order regarding the status of pleadings in this contested dissolution of marriage action. (#185.00.) Previously, the court granted on March 23, 2011 the Bankruptcy Trustee's Amended Motion to Intervene dated February 7, 2011 (#166.00) permitting Ronald I. Chorches Trustee in Bankruptcy for the Estate of Audry H. Peterson to become a party in this matter. The Trustee in Bankruptcy invoked P.B. 9-6 in its intervention motion, which states: "Any person may be made a defendant . . ." The Trustee in Bankruptcy has intervened as a defendant. The Trustee in Bankruptcy has filed an appearance by counsel. No pleadings have been filed by any party after the March 23, 2011 intervention order. As a result on April 26, 2011, the court ordered briefs to be filed by the parties by June 1, 2011. (#173.00.) On May 31, 2011 the Trustee in Bankruptcy filed its brief. (#177.00.) On May 31, 2011 the plaintiff filed her brief. (#178.00.) On June 1, 2011 the defendant filed his brief. (#179.00.) On September 28, 2011 the Trustee in Bankruptcy filed this instant Motion for Order (#185.00) since the briefs indicated diametrically viewpoints as to future pleadings.
"Our Supreme Court has consistently held that our courts should not render advisory opinions." Martino v. Scalzo, 113 Conn.App. 240, 242, fn.2, cert. denied, 293 Conn. 904 (2009); CT Page 23208 PHH Mortgage Corporation v. Cameron, 130 Conn.App. 238, 243, fn.4 (2011).
This court's April 26, 2011 order dealt with pleadings and the requirement to close the pleadings and this was not an advisory opinion. Likewise this motion is not seeking an advisory opinion. No contested dissolution of marriage judgments have been reversed by our appellate courts on the grounds that the pleadings have not been closed. Reversal for that reason is coming and it is only a matter of time. This court believes that a number of contested matrimonial matters are tried to a conclusion without closed pleadings. The Supreme Court has given fair warning on the chaos caused by a trial being concluded with pleadings not closed. "The trial judge was remiss in ordering the trial to proceed without insisting upon the filing of proper pleadings. The court's order predictably plunged the case into confusion and possible error to the advantage of no one." Berlingo v. Sterling Ocean House, Inc., 203 Conn. 103, 106 (1987). Standard pleadings are required in family matters. P.B. § 25a-12.
In this contested matrimonial matter both parties have filed bankruptcy petitions. The plaintiff, wife, may have received a discharge in bankruptcy. The defendant's, husband, Chapter 11 bankruptcy petition is still pending. The court notes that on July 25, 2011 an appearance was filed by Attorney Barbara H. Katz of 57 Trumbull Street, New Haven, Connecticut. The printed party appearance line "Other (Specialty)" was completed "Barbara H. Katz, Trustee for the Bankruptcy Estate of Todd Peterson 09-50241." There are no intervention documents, pleadings or motions on behalf of the Trustee in Bankruptcy for the Estate of Todd Peterson in the court file.
Rightly so a Trustee in Bankruptcy has concerns over protecting the assets of the bankruptcy estate including state trial court orders that may interfere with the management of the bankruptcy estate or disclose other assets previously unknown to the Trustee in bankruptcy.
A state court has jurisdiction to hear matters pertaining to the dissolution of marriage but not to enter orders relating to property that is part of a bankruptcy estate. 11 U.S.C. § 362(a)(1), (2) and (3). The filing of a bankruptcy petition does not operate as a stay of paternity actions, establishing, modifying, and enforcing domestic support orders, child custody, child visitation and domestic violence. 11 U.S.C. § 362(b)(2)(A)(i)(ii)(iii) and (v). "The filing of a petition . . . does not operate as a stay . . . for the dissolution of a marriage, except that to the extent that such proceeding seeks to determine the division of property that is property of the estate." 11 U.S.C. § 362(b)(2)(A)(iv).
The Trustee in Bankruptcy proposes that the plaintiff be required to file an amended complaint in two counts. The first count will reallege her current allegations. The second count will allege the salient administrative facts of her bankruptcy petition. The Trustee's brief claims that three paragraphs are all that are needed in the second count. The suggested allegations are:
1. The Plaintiff filed a voluntary petition for bankruptcy under Title 11 U.S.C. Chapter 7, on or about July 17, 2009, which case is pending in the United States Bankruptcy Court for the District of Connecticut, and has been assigned docket number 09-51385(ahws).
2. Ronald I. Chorches was appointed the Trustee of the Plaintiff's bankruptcy estate on or about July 17, 2009, and continues to act as such trustee.
3. The Trustee may claim an interest in certain property that is the subject of this case for dissolution of marriage.
The Trustee argues that all of these facts appear to be known to the plaintiff and can be easily verified by public access to on-line bankruptcy court records. None of these facts appear contested nor prejudicial to the plaintiff. If the above facts are inaccurate, the plaintiff would be free to plead similar facts that the plaintiff believes to be accurate.
The plaintiff opposes the Trustee's suggested second count and she reserves her right herewith to appeal the March 23, 2011 intervention order claiming that it is not yet a final judgment. The plaintiff argues that this proposed order conflicts with our pleading statutes in family matters, Gen. Stat. §§ 46b-40 through 46b-48, the necessary party statutes, Gen. Stat. §§ 46b-55 and 46b-57, and the scope of relief usually granted in family cases. She correctly states that there are no state statutes providing for the intervention of a Trustee in Bankruptcy in a dissolution of marriage action. She argues that she should not be "forced by Judicial order to plead the hypothetical rights of another party who has been permitted to intervene over her objection and whose interests may be adverse to those of the Plaintiff." The plaintiff suggests that she not be ordered to amend her complaint but that the Trustee file an answer to the plaintiff's dissolution of marriage complaint, a counterclaim against the plaintiff setting forth its claims for relief, and a cross claim against the defendant with appropriate claims for relief requested by the Trustee in Bankruptcy.
The defendant's brief requests that "the Plaintiff, Audry H. Peterson, should file an Amended Complaint stating the facts and showing the interest of the third-party Defendant, Ronald I. Chorches, Trustee." The defendant responds to the plaintiff's suggestion: "Therefore, if the court in this instant matter determines that the Defendant Trustee, Ronald I. Chorches, must file an intervenor complaint or a cross-claim against the Plaintiff, Audry H. Peterson, the Defendant has no objection to his doing so."
Family trial courts have dealt with a variety of intervening third parties claiming custody, visitation, prior property rights in the family home, and title to real property in which a fraudulent conveyance claim is being made by one of the marital litigants. Gaudio v. Gaudio, 23 Conn.App. 287, 293 (1990). The court need not cite to those cases since they are legion and found everyday on our dockets. Family trial judges have a familiarity with bankruptcy proceedings. In this day and age marital litigants frequently file bankruptcy petitions. Family trial judges routinely deal with these issues. Karski v. Karski, Superior Court, judicial district of Hartford at Hartford, Docket Number FA 09-4042851 S (August 2, 2011, Olear, J.) [ 52 Conn. L. Rptr. 406].
The court finds that there is no need under these circumstances for a request to amend the plaintiff's complaint to be filed or argued since the April 26, 2010 order gave the parties the opportunity to file briefs. Trial courts routinely order plaintiffs to amend their complaint upon the intervention of a party. Plamondon v. Enfield, 26 Conn.Sup. 488, 490 (1966); Collins et al. v. The Lantern Point Association, Superior Court, judicial district of Fairfield at Bridgeport, Docket Number CV 01-0381526 S (February 15, 2002, Sheedy, J.) [ 31 Conn. L. Rptr. 424]. This court finds that it has the authority to order Audry H. Peterson to file an amended complaint in two counts.
The court orders the plaintiff, Audry H. Peterson, to file an amended complaint. The First Count shall contain the current allegations of her operative complaint together with her current Claims for Relief at the end of the amended complaint. The Second Count will allege that the plaintiff, Audrey H. Peterson, made a bankruptcy filing, the date, court and docket number of that filing, under what Chapter of the Bankruptcy code that filing was made, the disposition of that proceeding, that Ronald I. Chorches was appointed the Trustee in Bankruptcy in that bankruptcy preceding, the date of that appointment, the continuation of that appointment and that the Trustee in Bankruptcy may claim an interest in certain property that is related to the dissolution of marriage. The only Claim for Relief in the Second Count will be "Such other relief as the court deems just and proper," which will be added to the plaintiff's other Claims for Relief at the end of the Second Count. The plaintiff shall serve the amended complaint by mail to all counsel of record in accordance with the Practice Book and so certify. There will be no return date and no marshal's service.
The other parties, the defendant and the Trustee in Bankruptcy, shall file responsive pleadings to the plaintiff's amended complaint including but not limited to any Claims for Relief that party is requesting. Each party shall respond to any other party's pleadings. The pleadings shall be closed prior to the case being assigned for trial.