Peter M. Oldani v. Jacqueline Oldani (2010)

MEMORANDUM OF DECISION RE TERMINATING OF STAY DATED JUNE 1, 2010

Section 61-11 of the Practice Book sets out the rules for stays of execution in noncriminal cases.  Practice Book § 61-11(a) provides in relevant part that “Except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment or order shall be automatically stayed until the time to take an appeal has expired.   If an appeal is filed, such proceedings shall be stayed until the final determination of the cause.”

The proper procedure for the termination, or lifting, of an automatic stay is provided in Practice Book § 61-11(d).  Section § 61-11(d) provides that “[a] motion to terminate the stay of execution may be filed before judgment;  if it is, it may be ruled upon when judgment is entered.   If such a motion is filed before judgment, or after judgment but before an appeal, it shall be filed in triplicate with the clerk of the superior court.   If it is filed after an appeal is filed, an original and three copies shall be filed with the appellate clerk, who shall forward the motion to the judge who tried the case.   That judge shall file any ruling thereon with the appellate clerk and with the clerk of the trial clerk where the matter was tried.   If the judge who tried the case is unavailable, the motion shall be forwarded to the clerk of the court in the judicial district where the case was tried, who shall assign the motion for a hearing and decision to any judge of the superior court.”

Practice Book § 61-11(c) sets out two grounds upon which a judge may grant a motion to terminate an automatic stay.  Section 61-11(c) provides:  “Termination of stay may be sought in accordance with subsection (d) of this rule.   If the judge who tried the case is of the opinion that (1) an extension to appeal is sought, or the appeal is taken, only for delay or (2) the due administration of justice so requires, the judge may at any time after a hearing, upon a motion or sua sponte, order that the stay be terminated.”   It is within the trial court's discretion to determine whether due administration of justice warrants the termination of a stay of execution.  Northeastern Gas Transmission Co. v. Benedict, 139 Conn. 36, 40-41, 189 A.2d 379 (1952).   The determination of whether “due administration of justice” requires a termination of an automatic stay must involve an analysis in which the following principles are considered:  (1) the likelihood of success on appeal;  (2) the irreparability of injury to be suffered if the stay is lifted;  (3) the effect of the stay on other parties to the proceedings;  and (4) the public interest.  Griffin Hospital v. Commission of Hospitals, 196 Conn. 451, 456-57, 493 A.2d 229 (1985).

The court finds, having considered all four principles, that the due administration of justice does not require that the stay in this case be terminated to effectuate the immediate sale of the marital residence.   Neither party is likely to suffer irreparable harm from the stay of the court's judgment.   No other parties are affected by the stay and there are no public policy considerations that weigh against leaving the stay in place.   Although the defendant is unlikely to succeed on appeal that alone is not sufficient reason to terminate the stay.   The court cannot make a finding that the appeal, if taken, would only be for the purpose of delay, based upon the evidence presented.

Accordingly, the plaintiff's motion to terminate stay is hereby denied.

Pinkus, J.

Pinkus, Barry C., J.