In re Boyd

• Decision Date: 19 June 2001
• Docket Number: Bankruptcy No. 92-23604. Adversary No. 94-2371.
• Citation: 264 BR 62
• Court: U.S. Bankruptcy Court — District of Connecticut
• Parties: In re Thomas B. BOYD, Debtor. Martin W. Hoffman, Trustee, Plaintiff, v. Rose Marie Boyd, Defendant.

264 B.R. 62 (2001)

In re Thomas B. BOYD, Debtor Martin W. Hoffman, Trustee, Plaintiff, v. Rose Marie Boyd, Defendant.

Bankruptcy No. 92-23604. Adversary No. 94-2371.

United States Bankruptcy Court, D. Connecticut.

June 19, 2001.

COPYRIGHT MATERIAL OMITTED

Walter J. Onacewicz, Hoffman Law Offices, West Hartford, CT, for Trustee-Plaintiff.

Gilbert Shasha, New London, CT, for Defendant.

MEMORANDUM OF DECISION

ROBERT L. KRECHEVSKY, Bankruptcy Judge.

I.

Thomas B. Boyd ("the debtor"), on September 14, 1992, filed a Chapter 7 petition, and Martin W. Hoffman, Esq. ("the trustee") became trustee of the debtor's estate. On October 28, 1994, the trustee filed an amended complaint against Rose Marie Boyd ("the defendant") to avoid, as fraudulent under Connecticut law, two transfers of realty which the debtor made prepetition to the defendant, his wife. The transfers complied with the provisions of a Separation Agreement executed on September 24, 1985 by the debtor and the defendant ("the Separation Agreement"). The Connecticut Superior Court, on March 13, 1986, had issued a judgment legally separating the parties and approving the Separation Agreement as fair and equitable. The debtor and the defendant late in 1986 reconciled. The significance of the reconciliation on the two transfers is the principal issue dividing the trustee and the defendant. A trial held on March 13, 2001, provided the following background.

II. BACKGROUND

The debtor and the defendant (together "the Boyds") had intermarried on June 24, 1962. Their separation in 1985 resulted from the Boyds' disagreements concerning their son and clashes over their different approaches to family finances. The debtor, a builder and a computer retailer, was accustomed to taking financial risks and leveraging projects while the defendant, a school librarian, was considerably more conservative about incurring debt. She feared that the debtor's activities might jeopardize their residence on which she had made virtually all the mortgage payments. The Separation Agreement provided for a division of property. The debtor agreed to (1) transfer to the defendant his one-half ownership interest in the couple's jointly-owned residence at 37 Colonial Drive, Waterford, Connecticut ("the Colonial property"); (2) transfer to the defendant his one-half interest in property in Massachusetts; and (3) erect a house on jointly-owned property at 25 Westwood Drive, Waterford, Connecticut ("the Westwood property"), obtain a certificate of occupancy, and then convey his one-half interest in the property to the defendant who would assume the existing mortgage. The defendant retained custody of a minor child and she agreed to (1) forgo all claims against the debtor for alimony or child support; (2) transfer to the debtor her interest in property in Vermont; and (3) relinquish any claim to a share of the computer business.

The debtor, having previously moved out of the Colonial property, delivered to the defendant a quitclaim deed, executed on September 9, 1985, of his interest in the Colonial property. The defendant's attorney took possession of this deed for recording with the town clerk, but failed to do so. In 1990, the attorney's legal assistant, Jane B. Gaedt, discovered that the deed "had been inadvertently left in the office file and not forwarded to the Town Clerk for recording." (Gaedt Aff., Ex. 2.) The deed was recorded on May 14, 1990.

The debtor built the house on the Westwood property, but before he received a certificate of occupancy, the premises were vandalized to a considerable degree. The debtor and defendant filed an insurance claim for such damage. The insurer initially denied the claim. The debtor conveyed by quitclaim deed, executed August 16, 1991 and recorded on August 20, 1991, his interest in the Westwood property to the defendant. The defendant hired an attorney to pursue the insurance claim, but was unsuccessful in resolving the claim prepetition. The defendant failed to make the Westwood property mortgage payments, a foreclosure ensued, and the mortgagee received a deficiency judgment of approximately $73,000. Postpetition, through arbitration, an award of $123,000 was obtained on the insurance claim, which sum, plus interest, the trustee is presently holding, subject to the claims of the defendant, the mortgagee and counsel handling the claim.

In the latter part of 1986, after being separated for about a year, the Boyds reconciled. Both testified that the proposed and consummated division of property under the Separation Agreement was an essential factor in their reconciliation.

III. CONTENTIONS OF THE PARTIES

The trustee seeks a judgment avoiding, pursuant to Bankruptcy Code § 544(b) and Conn. Gen.Stat. § 52-552, the transfers of the Colonial and Westwood properties as fraudulent transfers. Although the Westwood property has been foreclosed, resolution of the fraudulent transfer claim determines the debtor's estate's entitlement to share in the proceeds of the insurance award.

The trustee contends that under Conn. Gen.Stat. § 52-552, the 1990 recording of the Colonial deed and the 1991 execution and recording of the Westwood deed are fraudulent transfers that occurred within the "three-year" applicable statutory period¹; that such transfers may be avoided by the trustee pursuant to Bankruptcy Code § 544(b); that the trustee may recover (1) the value of the debtor's interest in the Westwood property insurance award and (2) the value of the debtor's interest in the Colonial property.²

The defendant filed an answer, special defenses and counterclaims to the complaint.³ The defendant contends that the transfers at issue were the performance of the obligations which the debtor incurred under the Separation Agreement and not fraudulent.

IV. DISCUSSION

The trustee seeks to avoid the transfers of property pursuant to Bankruptcy Code § 544(b) which, as it existed at the commencement of the debtor's bankruptcy case, provided:

The trustee may avoid any transfer of an interest of the debtor in property or any obligation incurred by the debtor that is voidable under applicable law by a creditor holding an unsecured claim that is allowable under section 502 of this title or that is not allowable only under section 502(e) of this title.

11 U.S.C. § 544 (1992).

The trustee has asserted, and the defendant does not dispute, the existence of an allowable unsecured claim that arose prior to the transfers at issue. Because the properties are located in Connecticut, Connecticut law applies. See Citizens Bank of Clearwater v. Hunt, 927 F.2d 707 (2d Cir.1991) ("A fraudulent conveyance claim is governed by the law of the state in which property is located."). The Connecticut statute in effect at the time of the transfers at issue was Conn. Gen.Stat. § 52-552 (repealed in 1991 and replaced by the Uniform Fraudulent Transfers Act at § 52-552a et seq.).⁴ Although § 52-552 did not define a fraudulent conveyance, Connecticut case law has established the elements of an action under that statute:

A party who seeks to set aside a conveyance as fraudulent bears the burden of proving that the conveyance was made without substantial consideration and that, as a result, the transferor was unable to meet his obligations (constructive fraud) or that the conveyance was made with fraudulent intent in which the grantee participated (actual fraud).

Tessitore v. Tessitore, 31 Conn.App. 40, 42, 623 A.2d 496 (1993) (citing Tyers v. Coma, 214 Conn. 8, 11, 570 A.2d 186 (1990)).

A. Actual Fraud

"Whether the conveyance in question was fraudulent is purely a question of fact. Fraudulent intent must be proved, if at all, by clear, precise and unequivocal evidence. This standard of proof applies to intra-familial conveyances." Tyers v. Coma, 214 Conn. at 11, 570 A.2d 186 (citations and internal quotation marks omitted). "Since the question of actual fraud involves the parties' states of mind, it is not ordinarily proven by direct evidence, but rather, by inference from other facts proven — the indicia or badges of fraud. That evidence may include the circumstances of the transfer . . . and the conduct and action of the defendants with respect to the possession, management and control of the premises after the date of the conveyance. . . . The fact of an intra-family conveyance itself does not raise a presumption of fraudulent intent." Citizens Bank of Clearwater v. Hunt, 927 F.2d at 711 (citations to Connecticut case law and internal quotation marks omitted).

The trustee argues that the close relationship between the debtor and the defendant and the return of the debtor to the Colonial property after the reconciliation are indicia of fraudulent intent. The court, however, credits the testimony of the debtor and the defendant on this issue. With regard to the Colonial property, neither of the Boyds was aware that the quitclaim deed executed in 1985 had not been promptly recorded on the land records. Their testimony is supported by affidavit of Ms. Gaedt that, in 1990, she discovered the unrecorded deed had inadvertently been filed away and that it was recorded immediately thereafter.

With regard to the transfer of the Westwood property, the vandalism damage was extensive, and the insurance company disputed the claim. The debtor could not obtain a certificate of occupancy without the repairs, but needed the insurance proceeds in order to make the repairs. Unable to proceed any further, the debtor transferred the property to the defendant who pursued the insurance claim.

In light of the circumstances existing at the times of the transfers at issue, the court concludes that the trustee has failed to meet his burden of proving actual fraudulent intent of either the debtor or the defendant. The trustee cites an earlier decision by this court, Germain v. Kaczorowski (In re Kaczorowski), 87 B.R. 1 (Bankr.D.Conn.1988), in which the court found that an alleged separation was actually a...