Kathleen Brenia-Rudd v. Peter Scott Rudd (2009)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO BE ALLOWED TO REFINANCE

The plaintiff brought a dissolution of marriage action with a return date of March 10, 2009.   With the commencement of the action, both parties were bound by the automatic court orders, Connecticut Practice Book § 25-5(a)(1), which, in part, state:

“Neither party shall sell, transfer, encumber (except for the filing of a lis pendens), conceal, assign, remove, or in any way dispose of, without the consent of the other party in writing, or an order of the court, (emphasis added) any property, individually or jointly held by the parties in the usual course of business or for customary and unusual household expenses or for reasonable attorney fees in connection with this action.”  (Emphasis added.)

The plaintiff holds title in her name alone to real property located at 14 Glen Pines Lane, Norwalk, Connecticut.   She made a request to the defendant, through his attorney, that she be allowed to refinance said property and take an additional $50,000.00 as a cash out so she could make payments on current household bills, pay down debt she incurred during the marriage and pay her outstanding and future attorneys fees.   The defendant declined her request.   Thereafter on April 18, 2009, the plaintiff filed a “Motion to be Allowed to Refinance” requesting a court order that she be allowed to refinance and take a cash out of $50,0000.00.   On April 20, 2009, the defendant filed an objection.   This matter was argued on May 7, 2009 and thereafter the parties filed briefs.

The defendant argues the plaintiff's motion is contrary to the automatic orders and the granting of the motion would constitute a pendente lite property distribution which is neither authorized nor contemplated by the statutory rules related to dissolution matters.   The defendant further argues the automatic orders prohibit a party from dissipating an asset, such as the equity in the marital home, by increasing debt secured by the property and, therefore, the court lacks jurisdiction to grant the plaintiff's relief.

The automatic orders provide an avenue for the court to enter an order which can encumber property.   The orders specifically state “Neither party shall sell, transfer, encumber ․ without the consent of the other party in writing, or an order of the court, (emphasis added) any property ․” Connecticut Practice Book § 25-5(a)(1).   The automatic orders also provide that property can be used for ordinary household expenses or attorneys fees as long as there is an agreement between the parties or an order of the court.   Since the automatic orders apply to the parties during the pendency of an action, it is within this court's jurisdiction to make such orders as it deems equitable, including granting the request by a party to encumber real property.

The court, having carefully considered this matter, orders that the automatic stay is lifted to allow the plaintiff to refinance the real property known as 14 Glen Pines Lane, Norwalk, Connecticut and take an additional $50,000 as a cash out in order to make payments on current household bills, pay down debt she incurred during the marriage and her outstanding future attorneys fees.   The said $50,000 sum shall be used as follows:  $2,000 for attorneys fees, $20,000 for credit card balances, $10,000 to reimburse Anita Brenia for a loan, and $4,000 for other household debt.   The remaining balance of $14,000 shall be held pending further order of this court.   Documentation of the loan and payoffs listed above shall be promptly provided to this defendant.

So ordered.

Marano, J.

Marano, Richard M., J.