Opinion
FSTFA124024038S.
12-19-2012
Benoit ANSART v. Christine ANSART.
UNPUBLISHED OPINION
SYBIL V. RICHARDS, Judge.
The plaintiff Benoit Ansart and the defendant Christine Ansart were married on September 5, 1987 in Lussac, France. On September 30, 2012, the plaintiff initiated the instant divorce proceeding by service of a summons and complaint. Three days prior to serving the defendant with the instant divorce action, the plaintiff transferred $650, 000.00 from the parties' joint bank account to a bank account opened only in the plaintiff's name. Shortly thereafter, the defendant filed a pendente lite motion for order numbered 101.00 seeking an order " (a) that the Plaintiff " restore said funds, " (b) that the Plaintiff be enjoined from utilizing funds " without a court order" and (c) that the Plaintiff provide an " accounting of said funds." In response, the plaintiff filed a motion to dismiss " defendant's" pendent lite motion for order, " numbered 105.00 alleging that " [t]his court is without jurisdiction or power to make a pendente lite property distribution or order that an accounting be rendered pendente lite given the state of the pleadings" along with an accompanying memorandum of law. The defendant filed a memorandum of law in opposition to said motion filed by the plaintiff. The court heard oral arguments from the parties on November 26, 2012.
" A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). " Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).
The plaintiff argues several grounds in support of his motion. The plaintiff argues that while the court is vested with jurisdiction to assign property at the time it enters a decree dissolving a marriage pursuant to General Statutes § 46b-81a, it has no inherent power to assign property from one spouse to another except as provided in said section. The plaintiff further argues that the plaintiff's transfer of said sum of money occurred prior to the commencement of the automatic stay set forth in Practice Book § 25-5(b)(1) and points out that the defendant admits in her motion that said transfer occurred before the action was commenced. In addition, the plaintiff argues that the defendant's claim for an accounting is a separate cause of action governed by General Statutes § 52-401 et seq. and cites the case of Barber v. Barber, 121 Conn.App. 96 (2010), to advance his position. Although the plaintiff acknowledges that the court in a matrimonial action has the power to order an accounting, the plaintiff maintains that said accounting can be ordered if the party seeking such relief has asked for the same and only at the time of judgment and references the case of Kissel v. Kissel, 2006 WL 349140 (2006), in support of his argument. The plaintiff notes that the defendant failed to ask for an accounting in her answer or by way of a cross complaint. Lastly, the plaintiff argues that the defendant's request for an order to " enjoin [the Plaintiff] from utilizing funds without a Court Order" has no basis as the " Defendant failed to allege that she will suffer irreparable harm, " " failed to explain that funds in the Plaintiff's name are already subject to the automatic stay" or claim that " she has no adequate remedy at law."
General Statutes § 46b-81(a) states: " At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the superior court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect."
Practice Book § 25-5(b)(1) provides: " Neither party shall sell, transfer, exchange, assign, remove, or in any way dispose of, without the consent of the other party in writing, or an order of a judicial authority, any property, except in the usual course of business or for customary and usual household expenses or for reasonable attorney's fees in connection with this action."
The defendant counters that by claiming that the court does indeed have the authority to order the plaintiff, even pendente lite, to return assets to the marital estate transferred prior to the effect of the automatic orders in light of the case of Parlato v. Parlato, 134 Conn.App. 848, 41 A.3d 327 (2012). In Parlato, the defendant husband removed $250, 000.00 from a joint home equity line of credit in the marital estate and transferred the funds to his daughter without the plaintiff wife's knowledge or consent. The Appellate Court in Parlato affirmed the judgment of the Superior Court ordering the defendant husband to return the funds and holding the defendant husband in contempt of the automatic orders in light of its acknowledgment of the court's equitable role and powers in domestic relations cases citing several of its prior cases. " The paramount role of a court when considering domestic relations cases is one of a court of equity. The court's equity powers are essential to its ability to fashion the appropriate relief in domestic relation cases. The power to act equitably is the keystone to the court's ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage. Without this wide discretion and broad and equitable power, the courts in some cases might be unable fairly to resolve the parties' dispute ... These powers, although not expressly given to the court by statute, have been held to be inherent powers of the trial court ... LaBow v. LaBow, 13 Conn.App. 330, 351, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988); see also Darak v. Darak, 210 Conn. 462, 478, 556 A.2d 145 (1989) ." (Internal quotation marks omitted.) Febbroriello, 21 Conn.App. 200, 208, 572 A.2d 1032 (1990).
During the hearing, the plaintiff tried to distinguish the present facts in the instant matter to those in Parlato by arguing that Parlato involved the concealment of marital assets and the transfer of the funds in question to a third party whereas the plaintiff husband made no attempt to conceal the transfer and retained the transferred funds in his name solely as opposed to transferring the $650, 000.00 from the joint bank account to a third party. Under the Appellate Court's holding in Parlato, the plaintiff's argument relative to this court's lack of jurisdiction to order the return of the $650, 000.00 he transferred to an account in his name only is of no moment. It is absolutely of no consequence that the plaintiff deposited the $650, 000.00 to an account in his name instead of a third party or that the plaintiff acknowledges that the $650, 000.00 is part of the marital estate and is subject to the automatic orders under Practice Book § 25-5(b)(1). The court finds that it has the authority pursuant to its equitable powers as articulated by the court in Parlato to fashion both legal and equitable remedies in domestic relations cases such the present matter and further finds that it has the requisite jurisdiction to issue orders requiring the plaintiff to return the funds transferred from the joint bank account back into said account pendente lite.
Based upon the foregoing, the court denies the plaintiff's motion to dismiss defendant's pendente lite motion for order pendente lite numbered 105.00 because the court has the authority by virtue of its equitable powers as a court of equity to order the return of the $650, 000.00 that the plaintiff transferred from the joint bank account to a bank account opened in his name only. This decision does not address the plaintiff's other arguments because those arguments are outside the scope of a motion to dismiss.