Derderian v. Derderian

490 A.2d 1008, 3 Conn. App. 522, 1985 Conn. App. LEXIS 931
CourtConnecticut Appellate Court
DecidedApril 16, 1985
Docket2848
StatusPublished
Cited by33 cases

This text of 490 A.2d 1008 (Derderian v. Derderian) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Derderian v. Derderian, 490 A.2d 1008, 3 Conn. App. 522, 1985 Conn. App. LEXIS 931 (Colo. Ct. App. 1985).

Opinion

Dupont, C.P. J.

The plaintiff, Leo Derderian, sought a partition of real estate, owned by him and the named defendant, Elizabeth Derderian,1 as tenants in common. She counterclaimed seeking to set aside the conveyance to the plaintiff of his interest as fraudulent, and to obtain punitive damages. The case was tried to the court and judgment was rendered for the defendant on the plaintiffs complaint and on the first and second counts of her counterclaim.2 The plaintiff has appealed.3

The trial court made findings of certain relevant facts. The defendant and the plaintiffs brother had been married to each other, and the plaintiff had obtained his interest in the realty from his brother. Prior to the transfer, the defendant had commenced a marriage dissolution action against the plaintiffs brother. The defendant and the plaintiffs brother had [524]*524acquired joint title to the realty approximately sixteen years before the dissolution action was begun, and it was the marital home. At the time of the transfer, the plaintiff was aware of the pendency of the dissolution of marriage action. The plaintiffs brother removed himself from the state in order to frustrate the dissolution action. On the date of the transfer, the plaintiffs brother also conveyed other realty to the plaintiff. The plaintiff believed that money belonging to his family had made the acquisition of the marital home possible, and that if he and his brother did not act, the defendant would obtain title to the property. The plaintiff and his brother conspired to avoid any court judgment in the dissolution action, and agreed to the transfer of the property in order to defraud the defendant.

The dissolution of marriage action was dismissed, primarily because the brother had absented himself from the state. Subsequently, the defendant brought a second dissolution action which resulted in a judgment of dissolution. The brother did not appear in that action.

The Superior Court file in the second dissolution action4 reveals that the defendant sought and received a transfer of the interest of her husband, the plaintiffs brother, in the subject property. The brother, thereafter, moved to open that judgment and vacate the property award, claiming a lack of personal jurisdiction over him. The motion was denied.

The plaintiff, on appeal, claims that the trial court erred (1) in setting aside the conveyance as fraudulent, (2) in awarding attorney’s fees as punitive damages, and (3) in refusing to partition the real estate.

[525]*525The plaintiff's challenges to the judgment which set aside the conveyance as fraudulent are trifold. He claims that the defendant failed to establish an underlying debt owed by his brother to her, that, in the absence of such proof, the brother as debtor-grantor was an indispensable party to the action without whom the trial court could not render the relief requested, and that the evidence was insufficient to prove a fraudulent transfer.

The first two grounds are interrelated since they both involve whether an underlying debt was established. Generally, an underlying debt must be established in an action to set aside a fraudulent conveyance. Annot., 24 A.L.R.2d 395, 411-12; 37 C.J.S., Fraudulent Conveyances § 331. That is so, among other reasons, because the creditor is only entitled to relief to the extent necessary to satisfy the debt. Bizzoco v. Chinitz, 193 Conn. 304, 306-307, 476 A.2d 572 (1984); Doty v. Wheeler, 120 Conn. 672, 679, 182 A. 468 (1936).

The plaintiff concedes that a dissolution of marriage action can provide the basis for the underlying debt. Molitor v. Molitor, 184 Conn. 530, 440 A.2d 215 (1981). The plaintiff attempts to distinguish that case by arguing that there the alimony and support award established the underlying debt while here, notwithstanding the property assignment rendered in the judgment of dissolution pursuant to the later action, no dissolution action commenced by the named defendant provided the underlying debt.

The second dissolution action commenced by the defendant resulted in the judgment whereby the right, title and interest of the plaintiff’s brother in the realty was assigned to her. The plaintiff asserts that this second dissolution action cannot provide the underlying debt. He claims that the trial court in the present case did not take judicial notice of that action and struck [526]*526any reference to it from the record. Although the appeal record is ambiguous as to what consideration the trial court gave that judgment, one of the plaintiff’s special defenses to the defendant’s counterclaim acknowledges that the judgment in the second dissolution action contained an order relating to the subject property. The transcript also shows that the trial court knew that if the conveyance were set aside, the interest which the defendant’s former husband had prior to his conveyance to the plaintiff would be hers pursuant to the judgment in that dissolution action.

The plaintiff also argues that the court, in the second dissolution of marriage action, had no personal jurisdiction over his brother, and that the judgment rendered therein was void. The contrary is true since the trial court in that action denied the brother’s motion to set aside the judgment.5 The denial of such a motion is appealable. Trichilo v. Trichilo, 190 Conn. 774, 462 A.2d 1048 (1983). No appeal was taken, and the trial court’s judgment is res judicata as to that issue in any subsequent actions. Insurance Corporation of Ireland, Inc. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 706, 102 S. Ct. 2099, 72 L. Ed. 2d 492, cert. denied, 457 U.S. 1105, 102 S. Ct. 2902, 73 L. Ed. 2d 1312 (1982).

The plaintiff further attacks the judgment in the second action for dissolution of marriage by claiming that the court had no power to render a decree affecting that property. Although that court had no authority to dispose of the plaintiff’s interest in the realty, it did have the authority to dispose of whatever interest the brother, the defendant in that case, did have. Other jurisdictions have upheld judgments in dissolution of marriage actions which potentially disturb the interests of those not parties to a dissolution action by con[527]*527struing the judgments as determinative of the right, title and interest in the property of the husband and wife, assuming that the property is an asset of the marital estate. Melny v. Melny, 90 Cal. App. 2d 672, 676, 203 P.2d 588 (1949); Hazard v. Hazard, 17 Or. App. 229, 232, 521 P.2d 29 (1974); Saylor v. Saylor, 20 S.W.2d 229, 231 (Tex. Civ. App. 1929); Reilly v. Reilly, 671 P.2d 330, 333 (Wyo. 1983); Merritt v.

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Bluebook (online)
490 A.2d 1008, 3 Conn. App. 522, 1985 Conn. App. LEXIS 931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/derderian-v-derderian-connappct-1985.