Opinion
No. CV 03 0070077
February 25, 2004
MEMORANDUM OF DECISION
The plaintiff, Joyce Phillips, seeks to foreclose a judgment lien against property owned by the defendant, Reginald Phillips, Sr., at 370 Norwich Road in Plainfield, Connecticut. The defendant asserts as a special defense that the subject property is protected by the homestead exemption, General Statutes § 52-352b(t). General Statutes § 52-352b(t) provides as follows: "Exempt property. The following property of any natural person shall be exempt: (t) The homestead of the exemptioner to the value of seventy-five thousand dollars, provided the value shall be determined as the fair market value of the real property less the amount of any statutory or consensual lien which encumbers it; . . ." The term homestead is defined as follows: "owner-occupied real property . . . used as a primary residence." General Statutes § 52-352a(e).
On August 2, 2002, the Superior Court, in the case of Joyce G. Phillips v. Reginald Phillips, Sr., docket no. CV99-0061744, Judicial District of Windham at Putnam, ordered judgment in favor of the plaintiff against the defendant Reginald Phillips, Sr., the plaintiff's grandfather, in the amount of $144,160. On December 20, 2002, a judgment lien in favor of Joyce Phillips was recorded on property Reginald Phillips, Sr. owns at 370 Norwich Road, Plainfield, Connecticut ("the Plainfield property"). The plaintiff submitted an affidavit of debt showing that as of October 29, 2003, she was owed $124,478.67 by the defendant. Further, she submitted evidence that the property had an appraised value of $100,000.
The determinative issue in this case is whether the property owned by Reginald Phillips, Sr. at 370 Norwich Road, Plainfield, Connecticut is his homestead within the meaning of General Statutes § 52-352b(t) and thus exempt from foreclosure.
At the trial the court heard testimony from Bonnie Gauvin, the plaintiff's mother; Patricia Phillips, wife of the defendant Reginald M. Phillips, Sr.; the defendant Reginald Phillips, Sr.; and Sargent Izzarelli of the Connecticut State Police. The court finds the following facts.
In 1999, the defendant Reginald Phillips, Sr. was the owner of the real property located in Plainfield, Connecticut that is the subject of this foreclosure action. The subject property is improved with an eight-room house and a detached barn. From the mid-1980s until 1999, the plaintiff Joyce Phillips lived wit her mother, Bonnie Gauvin and her father Reginald Phillips, Jr. on the subject property. In 1999, the defendant Reginald Phillips, Sr. was arrested for abusing Joyce Phillips. As a result of that arrest, a court order prohibited the defendant from coming onto the Plainfield property. Prior to the court order, the defendant Reginald Phillips, Sr. was on the property on a regular basis to work on the house and the cars that he kept on the property. He occasionally ate meals but he did not sleep at the subject property. Miss Gauvin separated from Reginald Phillips, Jr. in 1999 and moved out of the subject property. After moving out of the property, Bonnie Gauvin regularly drove by the property and did not observe the defendant Reginald Phillips, Sr. there on a regular basis.
At all times relevant to this case, the defendant Reginald Phillips, Sr. has been married to Patricia Phillips. Since 1969, they have dwelled in a house owned by Patricia Phillips on 275 South Canterbury Road, Canterbury, Connecticut. The defendant Reginald Phillips, Sr. sleeps in Canterbury virtually every night and eats meals there. He is a diabetic and Mrs. Phillips helps him maintain a diet appropriate for his medical condition. Mr. Phillips, Sr. voted in the Town of Plainfield prior to his conviction.
Reginald Phillips' son currently lives on the subject property. In the past, Reginald Phillips, Sr. attempted to evict Reginald Phillips, Jr., Bonnie Gauvin and Joyce Phillips from the subject property.
Since the arrest in 1999, Reginald Phillips, Sr. has received his mail at the home he shares with his wife in Canterbury. His driver license shows the Canterbury address. Based upon a criminal conviction, Reginald Phillips, Sr. is required to register with this state as a sex offender. One of the items that he was required to declare as a part of the registration process was his residence. Since his first registration on November 26, 1999, Mr. Phillips has declared his residence to be in Canterbury, not Plainfield. The form provided by the State of Connecticut advises Mr. Phillips that he must affirm that his current address is correct and that "(f)ailure to comply with any of the registration requirements, including the address verification is a Class "D" Felony." See Ex. E. It was not until after this foreclosure action was filed in April 2003 that Mr. Phillips asserted that he had two residences and that his primary residence was the subject Plainfield property. Several times during his testimony he referred to the Canterbury house owned by his wife as his "home."
In Konover Construction Corp. v. Silberstein, the plaintiff sought to foreclose a recorded judgment lien that it had on property owned by the defendant. Konover Construction Corp. v. Silberstein, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 02-0467948 (July 22, 2003, Hadden, J.T.R.). In Konover, the court placed the burden of proving that the claimed property was a homestead on the shoulders of the party asserting the exemption but held that "claims of exemption are to be liberally construed in favor of the owner who is claiming the exemption." Id.
The present case is similar to Konover in that the defendant is seeking the protection of the homestead exemption in order to avoid foreclosure arising due to a judgment lien. As the proponent of the special defense, the defendant has the burden to prove that the property is the defendant's homestead.
Recently, the bankruptcy court for the District of Connecticut analyzed Connecticut's definition of homestead and found that a debtor claiming such an exemption must satisfy three criteria. "First, the individual must own the subject real property within the meaning of [§] 52-352a as of the relevant time. Second, the individual must occup[y] the subject real property within the meaning of [§] 52-352a as of the relevant time. Third, the subject real property must be used as a primary residence within the meaning of [§] 52-352a as of the relevant time." (Internal quotation marks omitted.) In re Kujan, 286 B.R. 216, 220-21 (Bankr.D.Conn. 2002).
The court will therefore analyze whether the Plainfield property is the defendant's homestead against these three criteria, all the while bearing in mind the "well-established rule of statutory construction that: [E]xemption laws must be liberally construed in favor of a debtor and/or the debtor's family, so that their purposes may be properly effectuated. For this reason, no mere technicality should defeat the right of exemption, and whenever the claim to an exemption can be brought within the purpose and intent of the statute by a fair and reasonable interpretation, the exemption should be allowed. Thus, statutory language should not be restricted in its meaning and effect so as to minimize its operation on the beneficent objects of the statutes." In re Caraglior, 251 B.R. 778, 782-83 (Bankr.D.Conn. 2000).
The first criteria in the homestead definition is that the person claiming the exemption actually owns the property at the relevant time. There is no dispute that Reginald Phillips, Sr. possesses title to the real property located at 370 Norwich Road, Plainfield, Connecticut. The first requirement of establishing a homestead exemption has been satisfied.
The Connecticut homestead exemption, unlike its federal counterpart, requires that the owner occupy the property and that it be the "primary residence" of the exemptioner. There are, however, no Connecticut cases that define the terms "occupy" or "primary residence" as they are used in General Statutes § 52-352b. The Merrium-Webster's Collegiate Dictionary (10th Ed. 1999) defines "occupy" as "to reside in as an owner or a tenant." Thus, the court's attention is directed to the meaning of the term "primary residence."
The Federal Bankruptcy Act permits a debtor to claim the homestead exemption in property "that the debtor or a dependent of the debtor uses as a residence." (Emphasis added.) 11 U.S.C. § 522(d)(1).
"Residence, when used in a sense other than domicile, is one of the most nebulous terms in the legal dictionary and can have many different meanings depending on the context in which it is used . . . Residence is less inclusive than domicile, importing merely having an abode at a particular place which may be one of any number of such places at which one is, at least from time to time, physically present." (Citation omitted.) In re Frame, 120 B.R. 718, 723 (Bankr.S.D.N.Y. 1990).
During floor debate Representative Holbrook, the sponsor of the homestead exemption bill, said: "I don't think one's home, one's private domain should be at risk . . . I hope that we can send a message in light of this bad economy that we have been faced with, to the people of the State that we do care and that we do hear them and we are making some effort to protect their homes." 36 H.R. Proc., Pt. 30, 1993 Sess., p. 10856, remarks of Sidney J. Holbrook. The primary purpose of the exemption was to keep a roof over the head of the debtor. In Konover Construction Corp., the court in determining which property was the defendant's homestead looked to such factors as the address on the defendant's drivers license, where she was registered to vote, where service of process was made, which of the properties contained the defendant's personal and marital property, where she received mail, how often she slept overnight at the claimed homestead, and who, if anyone else, has occupied the property being claimed as the homestead. Konover Construction Corp. v. Silberstein, supra, Docket No. CV02-0467948.
In the present case, there are few facts that weigh in favor of the defendant's argument that the Plainfield home is his residence, let alone his "primary" residence. The two primary facts in his favor are that 1) he visited the Plainfield home on an almost daily basis; and 2) he pays all of the housing expenses for the Plainfield home. Additional facts in support of the defendant's argument are: he occasionally takes naps in the Plainfield home, he is a limited member of the Plainfield fire department, and was last registered to vote in Plainfield. Furthermore, the defendant argues that the only reason he changed his mailing address, drivers license address, and automobile registration address was to conform with the law regarding sex offenders.
The defendant lost his right to vote in 1999 when he was convicted of the felony underlying the award of damages to Joyce Phillips.
Despite these facts, the balance of the other facts weigh in favor of finding that the defendant's primary residence is the home that he shares with his wife in Canterbury. First, the court finds that the Plainfield property was Mr. Phillips' homestead until 1969 when he remarried and moved into his new wife's home in Canterbury. When he remarried and moved to the Canterbury property, he effectively abandoned the Plainfield property as his homestead. During the course of the last 34 years, the defendant has spent his nights primarily in Canterbury.
The Plainfield property is currently occupied by William Phillips, Jr. and through the years has been occupied by other members of the defendant's family. This would include the plaintiff and her mother who lived there for approximately fourteen years. The location of the defendant's personal property is a non-factor in this case since it appears from the testimony that the defendant has personal property at each location.
Furthermore, the defendant, as a sex offender has been required to verify his address with the State Police, Public Safety Sex Offender Registry Unit every 90 days since his conviction in 1999. From the time that he had to first verify his address until August 2003, the defendant always maintained that he lived at 75 South Canterbury Road, Canterbury, Connecticut. In August 2003, the defendant notified the Registry Unit that he spent half of his time in Canterbury and half in Plainfield. The court finds that the defendant's August 2003 notification to the Registry Unit was self-serving and a direct result of this litigation. To find otherwise would be to find that the defendant had knowingly provided the Registry Unit with false information since he first began the verification process which would constitute the commission of a Class "D" felony.
Thus, the totality of the facts warrant a finding that the Plainfield property is not the primary residence of Reginald Phillips, Sr.
CONCLUSION
The court finds that Reginald Phillips, Sr. has not proven the property located at 370 Norwich Road, Plainfield, Connecticut as his homestead within the meaning of § 52-352b. For the reasons set forth, he does not use the Plainfield property as his primary residence and thus it cannot be his homestead. The facts demonstrate that the defendant's primary residence is at 75 So. Canterbury Road, Canterbury, Connecticut where he makes his marital home.
As to defendant William Phillips, Jr. the court makes the following findings. William Phillips, Jr. was properly served and based on Patricia Phillips' testimony, he is not in the military service. Defendant William Phillips, Jr. has failed to appear. Furthermore, he has not taken any action to reverse the court's entry of default on June 5, 2003. Accordingly, the court enters a default judgment against the defendant William Phillips, Jr. for failure to appear.
The plaintiff has previously withdrawn her complaints against the named defendant Chester Phillips, Jr. The other named defendant, Reginald Philips, Jr. failed to appear for trial, but no military affidavit is on file.
The court orders that this matter be set down for a hearing for the purpose of setting law days and the entry of orders regarding the defendant Reginald Phillips, Jr.
Cosgrove, J.