Defeo v. Defeo, No. TTD FA04 0083873-S (CT 1/6/2006), TTD FA04 0083873-S

• Decision Date: 06 January 2006
• Docket Number: No. TTD FA04 0083873-S,TTD FA04 0083873-S
• Court: Connecticut Supreme Court
• Parties: Phillip J. Defeo v. Irena Defeo Opinion No.: 91707

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Unpublished Opinion

Phillip J. Defeo v. Irena Defeo Opinion No.: 91707

No. TTD FA04 0083873-S

Superior Court of Connecticut

Judicial District of Tolland at Rockville

January 6, 2006

MEMORANDUM OF DECISION ON DEFENDANT'S MOTIONS FOR CONTEMPT

PATRICIA A. SWORDS, JUDGE.

This matter comes before the court on plaintiff's motions for contempt (#164.00, 164.10, 165.00 and 165.01). For the following reasons, plaintiff's motions are denied.

I. FACTS AND PROCEDURAL HISTORY

By complaint dated April 6, 2004, plaintiff commenced this action for dissolution of marriage. After a trial to the court, on August 2, 2005, the court (White, J.) entered a judgment of dissolution. Thereafter on September 23, 2005, defendant filed these motions for contempt. The court heard argument at short calendar on November 7, 2005, and, after reviewing the relevant pleadings and exhibits, now issues this opinion.

II. DISCUSSION

Defendant claims that plaintiff is in contempt in that in violation of the judgment of dissolution, he has refused to transfer to the defendant certain property, to wit: his interest in a Las Vegas timeshare; title to a 1999 Mazda Protege; and $ 40,000.00 in cash. Defendant responds that in October 2005, he filed a petition for bankruptcy, that as of the date of oral argument, the petition remained pending¹ and that the petition operates as an automatic stay of this court's enforcement of its transfer orders.

"State courts of general jurisdiction have the power to decide cases involving federal rights where . . . neither the Constitution nor statute withdraws such jurisdiction." (Internal quotation marks omitted.) Larson v. Larson, 89 Conn.App. 57, 60, 872 A.2d 912 (2005). Generally, except as otherwise provided, "the district courts shall have original and exclusive jurisdiction of all cases under title 11." 28 U.S.C. §1334(a). Absent certain exceptions, "a petition filed under section 301,² 302,³ or 303⁴ of [title 11] . . . operates as a stay, applicable to all entities of . . . (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title; (2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title; [and] (3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate . . ." 11 U.S.C. §362(a)(1)-(3). Such a petition, however, does not operate as a stay for "the commencement or continuation of an action or proceeding for . . . the establishment or modification of an order for alimony, maintenance, or support; or . . . [for] the collection of alimony, maintenance, or support from property that is not property of the estate . . ." (Emphasis added.) 11 U.S.C. §362(b)(2)(A)(ii) and (B).

Title 11 has also defined the term "property." "The commencement of a case under section 301, 302, or 303 of this title creates an estate. Such estate is comprised of all the following property, wherever located and by whomever held: . . . all legal or equitable interests of the debtor in property as of the commencement of the case." 11 U.S.C. §541(a)(1).

In Eden v. Robert A. Chapski, Ltd., 405 F.3d 582 (7th Cir. 2005), the court determined that it "had concurrent jurisdiction [with the state divorce court] to determine whether [the plaintiff's] debt for [his ex-wife's] attorney fees was dischargeable" in his chapter 13 bankruptcy proceeding. Id., 588. As an initial matter the court recognized that under the Bankruptcy Code a "divorce proceeding [is] a proceeding to establish an order for alimony, maintenance, or support. As such, it [is] exempt from the automatic stay." Eden v. Robert A. Chapski, Ltd., supra, 405 F.3d 588. The court went on to distinguish, however, between the exemption accorded to the establishment of an alimony or support order and any of the postjudgment efforts to enforce those orders from the property of the estate, noting that "any effort to enforce the judgment of dissolution [is] subject to the automatic stay (unless and until the stay [is] modified by the bankruptcy court) insofar as [the defendants seek] to collect from resources that [are] property of the bankruptcy estate. [11 U.S.C.] §362(b)(2)(B) . . ." (Citations omitted; emphasis in original.) Id.

Other jurisdictions are in accord with the decision of the Eden court. In Peare v. Jackson, 777 A.2d 822 (2001), the District of Columbia Court of Appeals concluded that "[a]lthough a bankruptcy filing does not stay an action to establish a right to support or to collect support from property outside the debtor's estate, [the defendant's] filing of a petition under Chapter 13 of the Bankruptcy Code . . . stayed his contempt adjudication, because that adjudication was calculated to compel him to pay support from sources encompassed within the debtor's estate." Id., 823. "The contempt . . . did not come within the exception to the automatic stay in 11 U.S.C. §362(b)(2)(B) for collection of support, because it was not targeted to compel payment from property that is not property of the estate." (Internal quotation marks omitted.) Id., 826.

Additionally the Court of Civil Appeals of Alabama determined that a "trial court violated the automatic stay [of a bankruptcy petition] by ordering the husband to pay the wife for the amount she had paid to satisfy [an] automobile loan." Hill v. Hill, 730 So.2d 248, 251 (1999). The court noted that the majority rule is that "[t]he filing of a bankruptcy petition stays the determination in a divorce case of the interests of the debtor in property of the estate, any exercise of control over such property, and any monetary claims against a...