Patrocinio v. Yalanis

492 A.2d 215, 4 Conn. App. 33, 1985 Conn. App. LEXIS 947
CourtConnecticut Appellate Court
DecidedMay 14, 1985
Docket2201; 2202
StatusPublished
Cited by19 cases

This text of 492 A.2d 215 (Patrocinio v. Yalanis) 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
Patrocinio v. Yalanis, 492 A.2d 215, 4 Conn. App. 33, 1985 Conn. App. LEXIS 947 (Colo. Ct. App. 1985).

Opinion

Borden, J.

These are appeals from the judgments in two actions for amounts due on promissory notes. [34]*34The trial court consolidated the actions for trial and appeal because they arise from the same set of facts.

In 1978, the defendant John Yalanis1 borrowed money from the plaintiffs and used it to start an electronics distributorship known as P.J.’s, Inc. At that time, the defendant owned an undivided one half interest in his family home. By a quitclaim deed dated January 29, 1980, the defendant conveyed his interest in this property to his wife, Elaine Yalanis. The defendant received no monetary consideration for this transfer. At the time of the transfer, his only other asset was 51 percent of the shares of stock in P.J.’s, Inc. He continued to pay off the debts to the plaintiffs in a timely fashion after the transfer. He ceased making payments in July, 1981. P.J.’s, Inc., which had had some financial difficulties, stopped doing business on September 30, 1981, after its single supplier of merchandise was unable adequately to supply its needs.

The plaintiffs brought suit to recover the amounts due on the promissory notes, and to set aside the transfer of the defendant’s interest in the family home as a fraudulent conveyance pursuant to General Statutes § 52-552.2 The plaintiffs also sought an accounting of the assets of the corporation. The trial court rendered judgments for the plaintiffs against all three defendants for the amounts claimed under the notes, but found for the defendants on the counts alleging fraudulent transfer. The court refused to require an accounting of the corporate assets. The plaintiffs appeal from the judg[35]*35ments in favor of the defendants on the third and fourth counts of the complaint, which contained the allegations of fraudulent transfer.3 We find no error.

Under the fraudulent conveyance statute; General Statutes § 52-552; “[a] person to whom the grantor was indebted and who wishes to avoid the conveyance has the burden of showing either (1) that the conveyance was made without substantial consideration and rendered the transferor unable to meet his obligation or (2) that the conveyance was made with a fraudulent intent in which the grantee participated. Zapolsky v. Sacks, 191 Conn. 194, 200, 464 A.2d 30 (1983); Denison Development Co. v. Gunther, 189 Conn. 333, 335, 455 A.2d 1340 (1983); Molitor v. Molitor, 184 Conn. 530, 535-36, 440 A.2d 215 (1981).” Bizzoco v. Chinitz, 193 Conn. 304, 312, 476 A.2d 572 (1984). These two tests refer to constructive fraud and actual fraud, respectively. The issues presented by the plaintiffs on appeal revolve around these basic theories of fraudulent conveyance, both of which they alleged in their complaint.

We first consider the plaintiffs’ argument that the court used the wrong standard of proof in determining if fraud existed. “Connecticut law has firmly established that fraud must be proven by a standard more exacting than that of a fair preponderance of the evidence. J. Frederick Scholes Agency v. Mitchell, [191 Conn. 353, 358, 464 A.2d 795 (1983)]. The standard of proof for some cases such as those involving the acquisition of title by adverse possession, the termination of parental rights, libel, fraud, or reformation of a deed or contract is that of clear and convincing proof, a standard greater than proof by a fair preponderance of the evidence but less than proof beyond a reasonable [36]*36doubt.” (Emphasis added.) Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 296, 478 A.2d 257 (1984). “Such a burden of persuasion requires a reasonable belief that ‘the facts asserted are highly probably true [or] that the probability that they are true ... is substantially greater than the probability that they are false ....’” Clark v. Drska, 1 Conn. App. 481, 487, 473 A.2d 325 (1984).

The trial court properly used this intermediate standard of proof. At the outset of its oral decision on the claims of fraudulent conveyance, the court stated that “any claim of fraud requires a very high standard of proof” and that this standard was “higher than a mere preponderance of the evidence.” While the court did not state specifically that the standard it was applying was that of clear and convincing proof, possibly for fear of getting caught in the “quagmire of descriptive words for [this] quantum of proof”; id., 487; it sufficiently indicated to the parties that it was applying the required higher standard of proof. Cf. Kavarco v. T.J.E., Inc., supra, 297-98. The trial court then concluded that the plaintiffs “did not sustain the high burden of proof [for] establishing fraud.” The court did not err; it clearly applied a standard of proof higher than the normal civil standard of preponderance of the evidence but lower than the criminal standard of beyond a reasonable doubt.

The plaintiffs next argument arises from the plaintiffs allegations of constructive fraud, in particular the claim that the transfer by the defendant rendered him unable to meet his obligation. See Bizzoco v. Chinitz, supra. The plaintiffs argue that the correct measure of insolvency used to determine whether the debtor was able to meet his obligation is a balance sheet test. Essentially, they urge that the proper inquiry is whether, after the transfer, the value of the debtor’s liabilities exceeds the value of his assets.

[37]*37The court used a narrower measure of insolvency, an income stream test. Rather than looking abstractly at the liabilities and assets of the debtor, the court inquired into whether the debtor in actuality was able to meet his then existing obligations as they became due.

Many standards exist to determine insolvency. See, e.g., Collier on Bankruptcy (15th Ed.) § 547.26; Glenn, Fraudulent Conveyances and Preferences (Rev. Ed. 1940) § 272; 37 C.J.S., Fraudulent Conveyances § 106. The Uniform Fraudulent Conveyance Act was drafted, in part, because of “the absence of any well recognized, definite conception of insolvency.” Uniform Fraudulent Conveyance Act (1978), Commissioners’ Prefatory Note, p. 162. Connecticut has not adopted the Uniform Fraudulent Conveyance Act, however. Molitor v. Molitor, supra, 535. No definite measure of insolvency has been adopted by the legislature or courts in Connecticut in the context of fraudulent conveyances. The trial court, therefore, was not bound by law to apply any particular test.

The trial court properly applied the income stream test in this case. This measure of insolvency was the common law measure; Nadler, The Law of Bankruptcy (2d Ed.) § 28; which stemmed from the English statute on which the Connecticut law is based. Molitor v. Molitor, supra; Bigelow, Fraudulent Conveyances (Rev. Ed. 1911), pp. 720-21. Since General Statutes § 52-552 codifies the common law of fraudulent conveyances;

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Bluebook (online)
492 A.2d 215, 4 Conn. App. 33, 1985 Conn. App. LEXIS 947, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patrocinio-v-yalanis-connappct-1985.