Joanne Bradley v. Robert Bradley (2013)

MEMORANDUM OF DECISION

Before the court is the plaintiff's motion for contempt (# 106), the defendant's objection (# 107) and the plaintiff's response.   The issue before the court is whether the plaintiff may enforce, in Connecticut, a foreign matrimonial judgment, obtained in New Jersey, where an appeal of the judgment is pending in New Jersey.   For the reasons given below, this court must impose a stay upon enforcement of the foreign matrimonial judgment and must deny the plaintiff's motion for contempt.

I

FACTS

On November 28, 2011, a dual final judgment of divorce was entered in Joanne Bradley v. Robert Bradley, Superior Court of New Jersey Chancery Division, Docket No. FM 13 469 11D. Pursuant to that divorce judgment, on March 9, 2012, the New Jersey court ordered that the plaintiff, Joanne Bradley, have complete and sole authority to list and to sell the parties' Connecticut residence.   The defendant, Robert Bradley, has appealed this order to the Appellate Division of the Superior Court of New Jersey, which appeal is still pending.   On March 27, 2012, the plaintiff filed, in this court, the New Jersey divorce judgment and subsequent orders as a foreign matrimonial judgment.

On June 12, 2012, the New Jersey Appellate Division denied the defendant's motion for stay, but granted, in the alternative, the defendant's request, pending disposition of the appeal, that the plaintiff provide him with written notice of any offers to purchase the property that the plaintiff plans on accepting, and restraining the plaintiff from entering into a contract to sell the property until the passage of ten business days after written notice is given to the defendant.

On May 6, 2013, the plaintiff filed a motion for contempt, to restrain and attorneys fees post-judgment, seeking, inter alia, enforcement of the provision in the New Jersey judgment permitting the plaintiff to list and sell the parties' Connecticut residence.   The defendant filed an objection to the plaintiff's motion on May 28, 2013, arguing, inter alia, that the New Jersey judgment is not a final judgment, as it is currently on appeal in the Appellate Division.   The plaintiff filed a response on June 13, 2013.

II

DISCUSSIONAParties' Arguments

The plaintiff asserts that the New Jersey order provided her with the authority to immediately list the property for sale without recourse by the defendant, but the defendant has interfered with the sale of the property in violation of the New Jersey order.   The defendant, however, argues that the judgment upon which the plaintiff relies cannot be enforced by Connecticut courts because a foreign matrimonial judgment which is presently on appeal in the courts of the state in which it was rendered is not entitled to full faith and credit recognition in other jurisdictions.   The defendant cites to General Statutes § 46b–73(a), which requires a Connecticut court to stay enforcement of a foreign matrimonial judgment if either party files an affidavit with the Connecticut court that an appeal from the foreign matrimonial judgment is pending in the foreign state.   Attached to the defendant's memorandum is his affidavit attesting that he has brought two separate appeals from certain orders entered in the New Jersey action, and that the appeals are currently pending, have been fully briefed and have not yet been argued before the Appellate Division.   The defendant also attests that the appeals address, inter alia, the orders upon which the plaintiff seeks enforcement in the Connecticut court, and the resolution of the appeals will directly impact the orders at issue in Connecticut.

In reply, the plaintiff cites to General Statutes § 46b–71(b), which mandates that a foreign matrimonial judgment “shall be enforced and otherwise treated in the same manner as a judgment of a court in this state.”   The plaintiff also notes under that General Statutes § 46b–73(a) the Connecticut court is only required to stay enforcement of the foreign matrimonial judgment “until the appeal is concluded, the time for appeal expires or the stay of execution expires or is vacated.”   The plaintiff argues that the Appellate Division reviewed and vacated any stay, pending appeal in the Appellate Division.   Thus, according to the plaintiff, there is a finality of judgment and no obstacle to enforcement of the foreign matrimonial judgment by this court.

B

Discussion

General Statutes § 46b–71(b) provides that a “foreign matrimonial judgment shall become a judgment of the court of this state where it is filed and shall be enforced and otherwise treated in the same manner as a judgment of a court in this state;  provided such foreign matrimonial judgment does not contravene the public policy of the state of Connecticut.   A foreign matrimonial judgment so filed shall have the same effect and may be enforced or satisfied in the same manner as any like judgment of a court of this state and is subject to the same procedures for modifying, altering, amending, vacating, setting aside, staying or suspending said judgment as a judgment of a court of this state;  provided, in modifying, altering, amending, setting aside, vacating, staying or suspending any such foreign matrimonial judgment in this state the substantive law of the foreign jurisdiction shall be controlling.”  General Statutes § 46b–73(a) provides that “[i]f either party files an affidavit with the court that an appeal from the foreign matrimonial judgment is pending in the foreign state, or will be taken, or that a stay of execution has been granted, the court sha1l stay enforcement of the foreign matrimonial judgment until the appeal is concluded, the time for appeal expires or the stay of execution expires or is vacated.”

The parties did not provide the court with case law relevant to the interplay between General Statutes §§ 46b–71 and 46b–73(b) and, upon its own research, the court discovered that there is scant case law available on this issue.   Nonetheless, the court was able to locate two cases which provided some guidance to this court.

In Brignolo v. King, Superior Court, judicial district of Danbury, Docket No. 323676 (October 18, 1996, Axelrod, J.) (18 Conn. L. Rptr. 66), one of the issues before the court was whether to grant a motion to stay enforcement of an Oklahoma custody order.   As an initial matter, the court cited to General Statutes §§ 46b–71 and 46b–73, noting that “[t]he threshold question is whether the Oklahoma custody order which is under appeal is considered to be a final judgment under Oklahoma law.”  Id., 69.   The court explained that “Oklahoma law, as is the case with Connecticut law, does not automatically stay the custody order entered in Oklahoma as a result of the appeal.   While the custody order in Oklahoma is subject to immediate enforcement, as are many nonfinal judgments, and is at once effective, it is not a final judgment until the appeal is decided.”  Id. The defendant argued that based on General Statutes § 46b–71, the Oklahoma custody orders were not stayed in Connecticut for enforcement purposes despite the appeal pending in Oklahoma.  Id. The court held that “the stay of enforcement language of § 46b–73 is mandatory.”  Id. The court also interpreted “the provision of § 46b–71(b) that provides that the foreign matrimonial judgment is subject to the same procedure for vacating or staying as a judgment of a court of this state [as] [applying] to those matrimonial judgments that are not under appeal in the foreign state.   Where there is an appeal pending from a foreign judgment, § 46b–73(a) would control the procedure for enforcing that judgment, rather than § 46b–71(b).”  Id. Accordingly, the court granted the motion for stay for two reasons:  “(1) the Oklahoma custody order [was] not a final judgment as required by § 46b–71(a);  and (2) § 46b–73(a) mandates that a stay enter from the Oklahoma order until the appeal is concluded.”  Id., 69–70.

Similarly, in Kasper v. Valluzzo, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. FA–09–4016652–S (November 19, 2009, Harrigan, J.T.R.), the court granted a defendant's motion for stay of enforcement of a foreign matrimonial order.   The court found that General Statutes § 46b–73(a) is procedural and a stay is mandatory “until any of the future events listed in the statute occur.”  Id.

In the present case, the defendant has filed the appropriate affidavit with this court averring that an appeal from the foreign matrimonial judgment is pending in New Jersey.   Thus, pursuant to the mandatory language of General Statutes § 46b–73(a), a stay of enforcement of the foreign matrimonial judgment must be imposed until the appeal is concluded.   Accordingly, the plaintiff's motion for contempt is denied.

BY THE COURT,

John W. Pickard

Pickard, John W., J.