Maria Goduti v. David Goduti (2011)

MEMORANDUM OF DECISION

The issue before the court is whether the court has the authority to order an unwilling party in a dissolution action to contract with a lender to reset or refinance the marital home mortgage, pendente lite.   The plaintiff, who opposes such an order, argues that although the court, pursuant to C.G.S. § 46b-83,¹ can enter pendente lite orders regarding support, the court cannot, absent an agreement of the parties, enter pendente lite orders regarding real property.²  The defendant counters with the argument that to order the plaintiff to enter into an agreement to refinance or reset the marital home mortgage is not the assigning or disposing of a marital asset but is instead preservation of a marital asset which may otherwise be in foreclosure or may no longer exist by the time the dissolution complaint goes to final judgment.

Historically, pendente lite orders and final dissolution orders serve very distinct functions.

The purpose of an award of alimony and support pendente lite is to provide for the wife and the dependent children while they are living apart from her husband pending a determination of the issues in the case.  Fitzgerald v. Fitzgerald, 169 Conn. 147, 151 (1975).   The final orders of alimony and support granted at the time of dissolution necessarily address the long-term conditions under which the reorganization of the family is to take place and include distribution of assets.

Wolk v. Wolk, 191 Conn. 328, 331 (1983).

As evidence by the above, pendente lite orders are meant to be temporary orders.   Moreover, although pendente lite orders are meant to maintain a status quo during the pendency of a dissolution proceeding, once judgment enters, pendente lite orders are subsumed by the final orders incorporated into the judgment.

Assuming, arguendo, this court were to conclude it had the inherent authority to grant the relief requested, the court would not be preserving a marital asset ³ but instead forcing an unwilling plaintiff to incur new debt or at the very least enlarge to an unknown amount and term an existing debt.   Such assigning of new or additional debt negates any equity argument proffered by the defendant.

In conclusion, to grant the relief being requested is effectively assigning to the plaintiff new obligatory debt.   Forcing the plaintiff to commit to a reset or refinance of a mortgage is not in the nature of support and therefore not within the purview of the court until resolution of the dissolution action.   Reliance on an argument based solely on equity, absent explicit statutory authority, is tantamount to judicial overreaching.

The defendant's motion relative to the mortgage reset or refinance is hereby denied.   The plaintiff's objection is hereby sustained.

Bernadette Conway, Judge

FOOTNOTES

FN1. C.G.S. § 46b-83 states:  “(a) At any time after the return day of a complaint ․ or after filing an application under section 46b-41, and after a hearing, alimony and support pendente lite may be awarded to either of the parties from the dating of the filing of an application thereof with the Superior Court ․ The court may also award exclusive use of the family home or any other dwelling unit which is available for use as a residence pendente lite to either of the parties as is just and equitable without regard to the respective interests of the parties in the property.”.  FN1. C.G.S. § 46b-83 states:  “(a) At any time after the return day of a complaint ․ or after filing an application under section 46b-41, and after a hearing, alimony and support pendente lite may be awarded to either of the parties from the dating of the filing of an application thereof with the Superior Court ․ The court may also award exclusive use of the family home or any other dwelling unit which is available for use as a residence pendente lite to either of the parties as is just and equitable without regard to the respective interests of the parties in the property.”

FN2. C.G.S. § 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.”.  FN2. C.G.S. § 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.”

FN3. Noteworthy is Webster's Dictionary definition of asset:  “sufficient property to pay debts and legacies ․:  the entire property of all sorts of a person, association, corporations or estate applicable or subject to the payment of his or its debts ․” Arguably, absent equity, the marital home in this case is not a marital asset and therefore its preservation for future distribution is disingenuous..  FN3. Noteworthy is Webster's Dictionary definition of asset:  “sufficient property to pay debts and legacies ․:  the entire property of all sorts of a person, association, corporations or estate applicable or subject to the payment of his or its debts ․” Arguably, absent equity, the marital home in this case is not a marital asset and therefore its preservation for future distribution is disingenuous.

Conway, Bernadette, J.