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Otto v. Otto

Connecticut Superior Court Judicial District of Tolland at Rockville
Nov 27, 2007
2007 Ct. Sup. 20318 (Conn. Super. Ct. 2007)

Opinion

No. FA 07 4007084 S

November 27, 2007


MEMORANDUM OF DECISION RE MOTION TO BE ADDED AS A PARTY DEFENDANT (NUMBER 104)


The applicant, The Estate of Shamaia L. Smith (hereinafter "estate"), seeks to be added as a party pursuant to Connecticut Practice Book § 9-18 and Connecticut general statutes § 52-107 in this dissolution of marriage case. The estate alleges that one of the parties to this dissolution case murdered the decedent, is civilly liable to the decedent's estate and that said party is dissipating and otherwise transferring marital assets to the detriment of the estate. The decedent's estate initiated a separate civil action against said party and has obtained a pre-judgment attachment in the amount of $4.5 million. Both parties to the dissolution have objected to the estate's motion to be added as a party and each filed a memorandum in opposition. All parties appeared, with counsel, on November 19, 2007 to argue their respective positions.

Practice book § 9-18 provides: "The judicial authority may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others; but, if a complete determination cannot be had without the presence of other parties, the judicial authority may direct that they be brought in. If a person not a party has an interest or title which the judgment will affect, the judicial authority, on its own motion, shall direct that person to be made a party."

The estate argues that several cases support its position but such cases are easily distinguishable. Gaudio v. Gaudio, 23 Conn.App. 287 (1980), and Livsey v. Livsey, 11 Conn.App. 43 (1987), both involved the assignee of property belonging to the marital estate being added as parties to protect the rights of one of the spouses. Derderian v. Derderian, 3 Conn.App. 522 (1984), was a partition action. While the adding of a party to a dissolution of marriage case may be appropriate if there has been a conveyance of a marital assets by a spouse to a third-party so that third party can be ordered to reconvey that property, permitting creditors to intervene into dissolution cases takes us down a slippery slope. The Family courts are charged with insuring that dissolution of marriage cases proceed in a fair and expeditious manner. If creditors are permitted to intervene into dissolution of marriage cases, what would stop MasterCard and American Express from routinely intervening under the same theory advanced by the estate in this matter? The Court is not convinced that the estate is unable to protect its rights by way of remedies afforded it in the civil court including but not limited to alleging that there have been fraudulent conveyances.

The court in Venuti v. Venuti, 36 Conn.Sup. 56 (1979), recognized that dissolution of marriage cases are markedly different than other civil matters. "The action for dissolution of a marriage is a special and peculiar proceeding. Is not akin to an action for the breach of an ordinary contract, for the foreclosure of a mortgage, or for the recovery of damages in tort for a wrong done [to] the plaintiff. It is in the interest of the state, the parties and especially the children that this action for the dissolution of a marriage be disposed of with expedition." Id., 58. While the parties in Venuti, supra, relied upon Connecticut general statutes § 52-325 and the estate in this action relies upon Connecticut general statutes § 52-107 and Practice Book § 9-18, the policy reasons for denying intervention are precisely the same.

In a well-written memorandum (except for using Wikipedia as a reference), the defendant argues that the only proper parties to a dissolution proceeding are the spouses themselves. "The paramount goal in any divorce proceeding is a just and equitable resolution of the interests and rights of the divorcing spouses. The asserted interests of third parties in marital property are best resolved in legal actions separate and apart from divorce proceedings . . . The majority rule does not allow any and all third parties to intervene in a divorce action." Division of Third-Party Property in Divorce Cases, 18 Journal of American Academy of Matrimonial Lawyers, 375, 425-26.

The focus of dissolution actions is and should be the relationship between the parties to the marriage with the goal of resolving differences, difficulties or issues that stem from those relationships. Third-party intervention such as that proposed by the estate in this matter does not assist in achieving that goal and would frustrate the already difficult task of determining the rights and responsibilities of the parties to a dissolution of marriage case. If the estate were granted intervener status, what would be it's role in discovery and pre-trial settlement conferences? Would it have a seat at the table for Special Masters Conferences? Would it have veto power over any settlement? Since settlement would be unlikely, a trial would result. Within that dissolution trial would be a miniature murder trial wherein the estate would have to prove its allegations. Moreover, given the defendant husband's Constitutional rights as a criminal defendant, the dissolution trial would necessarily be stayed, perhaps years, until the criminal matter and all appeals have been finalized.

The court in Gutkowski v. Gutkowski, Conn.Super.LEXIS 2882 (Rubinow, J. 1996), referring to the decision in Gaudio v. Gaudio, 23 Conn.App. 287 (1990), held that "this rule is expressly limited to cases in which the presence of the third party is required in order to adjudicate the property rights of the parties to the dissolution" Id., 6.

The estate is not a necessary party to the resolution of this dissolution of marriage.

"Necessary parties . . . are those persons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it . . . But if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete justice, without affecting other persons before the court, the latter are not indispensable parties. In re Devon B., 264 Conn. 572, 580 (2003).

Finally, the court in Inkel v. Inkel, 41 Conn. L. Rptr. 526 (2006, Epstein, J.), faced remarkably similar facts wherein Jane Doe, having been sexually assaulted by the husband, sought to intervene into his dissolution action. The court reviewed the cases of Gaudio v. Gaudio, 23 Conn.App. 287 (1990). Livsey v. Livsey, 11 Conn.App. 43 (1987), and Moliter v. Moliter, 184 Conn. 530 (1981), and correctly ruled that third-party intervention by creditors unnecessarily complicates the difficult task of resolving disputes between spouses.

For the foregoing reasons the motion to be added as a party is denied.


Summaries of

Otto v. Otto

Connecticut Superior Court Judicial District of Tolland at Rockville
Nov 27, 2007
2007 Ct. Sup. 20318 (Conn. Super. Ct. 2007)
Case details for

Otto v. Otto

Case Details

Full title:KATHLEEN OTTO v. KENNETH J. OTTO, SR

Court:Connecticut Superior Court Judicial District of Tolland at Rockville

Date published: Nov 27, 2007

Citations

2007 Ct. Sup. 20318 (Conn. Super. Ct. 2007)
44 CLR 549