Welsh v. Martinez

• Decision Date: 13 February 2018
• Docket Number: (X03)HHDCV106012959S
• Court: Connecticut Superior Court
• Parties: D’Anna WELSH v. William V. MARTINEZ, Jr. et al.

D’Anna WELSH v. William V. MARTINEZ, Jr. et al.

No. (X03)HHDCV106012959S

Superior Court of Connecticut, Judicial District of Hartford, Hartford, Complex Litigation Docket

February 13, 2018

UNPUBLISHED OPINION

OPINION

Hon Ingrid L. Moll, Superior Court Judge

Before the court is plaintiff/judgment creditor D’Anna Welsh’s application for a turnover order (application) (# 205.00). Plaintiff submits her application pursuant to General Statutes § 52-356b,^[1] requesting " an execution and an order in aid of the execution directing the judgment debtor," defendant William V. Martinez, Jr. (Dr Martinez), and certain third parties to " transfer to the levying officer either or both of the following: (1) possession of specified personal property that is sought to be levied on; or (2) possession of documentary evidence of title to property of, or a debt owed to, the judgment debtor that is sought to be levied on."

In her application, plaintiff seeks a turnover order as follows:

(1) " Count One: Turnover of Dr. Martinez’s Personal Property," directed to Dr. Martinez and Cristina Martinez (Cristina);

(2) " Count Two: Turnover of Dr. Martinez’s American Funds IRA," directed to The Capital Group Companies, Inc. a/k/a Capital Group, Inc. a/k/a Capital Group;

(3) " Count Three: Turnover of Dr. Martinez’s Schwab IRA," directed to Charles Schwab & Co., Inc. and RBC Capital Markets, LLC a/k/a RBC Wealth Management;

(4) " Count Four: Turnover of Dr. Martinez’s Schwab Joint Investment Account," directed to Charles Schwab and Catherine Martinez (Catherine);

(5) " Count Five: Turnover of Debts Owed by Stoney River Lodge to Dr. Martinez and His Personal Property," directed to Stony River Lodge, Inc.; and

(6) " Count Six: Turnover of Debts Owed by Golf Club of Avon to Dr. Martinez and His Personal Property," directed to Golf Club of Avon, Inc.

I. FACTUAL AND PROCEDURAL BACKGROUND

This matter was tried to a jury in 2012. On June 25, 2012, the jury returned a verdict in favor of the plaintiff on all counts and awarded her $2,000,000 in damages. Thereafter, the trial court, Robaina, J., awarded the plaintiff a sum of $360,000 as punitive damages. Post-judgment interest was awarded at the rate of 3.5% per annum. Judgment was rendered in accordance with the verdict, and Dr. Martinez appealed therefrom. The Appellate Court affirmed the judgment. Welsh v. Martinez, 157 Conn.App. 223, 225, 114 A.3d 1231 (2015). Thereafter, the Supreme Court denied Dr. Martinez’s petition for certification. Welsh v. Martinez, 317 Conn. 922, 118 A.3d 63 (2015). The judgment remains unsatisfied, and Dr. Martinez has not voluntarily paid plaintiff any amount toward the judgment.

On November 21, 2016, as part of her postjudgment collection efforts, plaintiff filed the instant application. (## 205.00, 206.00.) On December 30, 2016, Dr. Martinez filed an objection to plaintiff’s application. (# 215.00.) A request for adjudication was filed on March 15, 2017. (# 221.00.) On March 16, 2017, Dr. Martinez filed an affidavit in support of his claim of exemptions. (# 224.00.) On July 6, 2017, Cristina filed an objection to plaintiff’s application. (# 240.00.) On July 10, 2017, Dr. Martinez filed a memorandum of law in opposition to plaintiff’s motion for turnover order of exempt IRA accounts. (# 241.00.) An evidentiary hearing on the application was held on July 11, 2017 (hearing), during which the court received evidence and heard the testimony of two witnesses, Dr. Martinez and Michelle Duer, a records custodian from Charles Schwab & Co., Inc. Respective counsel for plaintiff, Dr. Martinez, Catherine, and Cristina appeared.

Numerous post-hearing submissions were filed thereafter, including: (1) plaintiff’s post-hearing brief in support of her application for an execution and an order in aid of execution against Dr. Martinez’s property dated August 21, 2017 (## 251.00-253.00); (2) Catherine’s objection to application for a turnover order as to Catherine Martinez dated December 9, 2016, filed on September 14, 2017 (# 255.00); (3) Catherine’s property execution proceedings claim for determination of interests in disputed property (# 256.00); (4) Cristina’s post-hearing brief regarding turnover order dated September 22, 2017 (# 257.00); (5) Dr. Martinez’s post-trial memorandum in opposition to plaintiff’s motion for turnover order dated September 22, 2017 (# 258.00); (6) Catherine’s post-trial memorandum in opposition to plaintiff’s motion for turnover order dated September 22, 2017 (# 259.00); (7) plaintiff’s reply to Dr. Martinez, Catherine, and Cristina’s briefs dated October 6, 2017 (# 260.00); (8) defendant’s request for leave to file limited sur-reply brief in response to plaintiff’s reply memorandum dated October 12, 2017 (# 261.00); (9) Dr. Martinez’s sur-reply brief in response to plaintiff’s reply memorandum dated October 12, 2017 (# 262.00); (10) plaintiff’s reply to Dr. Martinez’s motion for permission to file a sur-reply brief dated October 13, 2017 (# 263.00); and (11) Dr. Martinez’s reply to plaintiff’s reply to defendant’s request for leave to file sur-reply brief dated October 16, 2017 (# 264.00).

II. LEGAL PRINCIPLES

" The law of turnover orders is entirely statutory ... These statutes have not been extensively litigated." Sarasota CCM, Inc. v. Golf Mktg., LLC, 94 Conn.App. 34, 37-38, 891 A.2d 72 (2006). In the present case, numerous statutes apply. General Statutes § 52-356b provides in relevant part:

(a) If a judgment is unsatisfied, the judgment creditor may apply to the court for an execution and an order in aid of the execution directing the judgment debtor, or any third person, to transfer to the levying officer either or both of the following: (1) Possession of specified personal property that is sought to be levied on; or (2) possession of documentary evidence of title to property of, or a debt owed to, the judgment debtor that is sought to be levied on.

(b) The court may issue a turnover order pursuant to this section, after notice and hearing or as provided in subsection (c) of this section, on a showing of need for the order. If the order is to be directed against a third person, such person shall be notified of his right pursuant to section 52-356c to a determination of any interest claimed in the property.

General Statutes § 52-356b(a) & (b). In addition, General Statutes § 52-350f provides:

A money judgment may be enforced against any property of the judgment debtor unless the property is exempt from application to the satisfaction of the judgment under section 52-352a, 52-352b, 52-352d or 52-361a, or any other provision of the general statutes or federal law. The money judgment may be enforced, by execution or by foreclosure of a real property lien, to the amount of the money judgment with (1) all statutory costs and fees as provided by the general statutes, (2) interest as provided by chapter 673 on the money judgment and on the costs incurred in obtaining the judgment, and (3) any attorneys fees allowed pursuant to section 52-400c.

General Statutes § 52-350f. Because numerous exemptions are claimed, they are addressed in turn below.

The burden to demonstrate the applicability of a claimed exemption under General Statutes § 52-352b is on the exemptioner. See, e.g., Lienfactors, LLC v. Belamour, No. CV 06-5002622, 2007 WL 4410354, at *2 (Conn.Super. Nov. 20, 2007); Phillips v. Phillips, No. CV 03-0070077, 2004 WL 503905, at *2 (Conn.Super. Feb. 25, 2004); see also 31 Am.Jur.2d Exemptions § 311 (" As a general rule, the party asserting an exemption from execution, attachment, or seizure to satisfy a judgment bears the burden of establishing entitlement to the exemption. Once a judgment creditor proves a judgment debtor owns property, it is the judgment debtor’s burden to prove that the property is exempt from attachment. Where an issue is left in doubt by the proof so that a court would be required to speculate, the party on which the burden of proof ultimately rests must lose. It lies with the party claiming property to be exempt to prove the facts affirmatively which go to establish such an exemption. If the moving party makes a prima facie showing that no genuine issue of material fact existed, the opposing party has the burden of presenting evidence to the contrary. Once a prima facie case of exemption has been put forward, the burden is on the party who claims the benefit of any exception to the exemption law to bring the case within the exception" ).

III. PLAINTIFF’S APPLICATION

A. Count One

In Count One, plaintiff seeks a turnover order directed to Dr. Martinez and Cristina with respect to the personal property enumerated below.

To the extent count one of the application seeks a turnover order directed to Cristina Martinez, the application is denied. Although the application was filed at a time when Dr. Martinez and Cristina were still married, they were divorced on May 5, 2017 (i.e., prior to the hearing). See William Martinez v. Cristina Martinez, No. HHD-FA17-6076589S, judicial district of Hartford, # 109.00. Plaintiff has not demonstrated that any of Dr. Martinez’s " specified personal property that is sought to be levied on," enumerated below, is in the possession of Cristina.

With regard to Count One, Dr. Martinez argues as a threshold matter that a turnover order is not available to plaintiff pursuant to § 52-356b because an execution must first be served on the judgment debtor, which did not occur here. The plaintiff argues that § 52-356b, as amended, does not require that an execution be served prior to an application for a turnover order. The court agrees with the plaintiff.

Because this issue raises a question of statutory interpretation, the court begins by applying the plain meaning rule, as set forth in ...