Angella Jackson v. Frank Jackson (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR ORDER (Motion # 114.00)

FACTS

The plaintiff, Angella Jackson, filed for dissolution against the defendant, Frank Jackson, on July 9, 2013.   They have been married for approximately thirty years and have one child who was born on September 13, 1992.   The plaintiff requests a divorce, fair division of the property and assets and an order regarding post-majority educational support.   She also requests a pendente lite order for alimony.   The defendant filed a motion for pendente lite orders on July 18, 2013 for alimony and household expenses.

On July 22, 2013, the defendant filed a motion for order regarding the Legend Social Club, LLC (social club) located at 1635 East Main Street in Bridgeport.   In the motion, he claims that the plaintiff has refused to allow him to enter and conduct the daily business of the social club.   He requests a court order allowing him to enter and conduct its business, banning the plaintiff from the premises, and requiring the plaintiff to transfer any permits necessary for the operation of the social club back into his name.   Further, he requests (1) an accounting for any income the plaintiff derived from the business during the time he was not able to run the business;  (2) that the plaintiff provide him with a fair share of the income which she took from the operation of the business;  (3) an order that she give the defendant copies of all business transactions entered into by her since she took over the operation of the business;  and (4) an award for costs and reasonable attorneys fees for bringing this motion.

On October 24, 2013, the defendant filed a memorandum of law asking the court to order, pendente lite, the plaintiff to turn over the operation of the social club to him and not to interfere with his operation of the business.   He claims that the social club is a family business and transferring that business to him would be incidental to the dissolution proceedings.   He is not asking the court to order a transfer of the liquor license permit because the permit is not transferrable between individuals.¹  In response, the plaintiff filed a memorandum of law in opposition to the defendant's motion.   She claims that they jointly incorporated the social club as co-equal owners in 2003.   Then, when their marriage began to fail, the defendant gave the operation of the business to the plaintiff on or about June 3, 2012.   After she began operating it, the defendant dissolved the social club by filing articles of dissolution with the secretary of state on November 7, 2012.   Thereafter, the plaintiff incorporated the business as the Red Velvet Lounge, LLC and obtained the necessary permits to legally operate the business.   She maintains that the defendant is seeking to divest her of her business and that the court lacks the authority to issue orders pendente lite regarding the operation of that business.²

DISCUSSION

Practice Book § 25–5 sets forth the provisions for automatic or pendente lite orders upon service of a complaint in a dissolution action.   The automatic orders include, inter alia, the following:  “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, any property, individually or jointly held by the parties, except in the usual course of business or for customary and usual household expenses or for reasonable attorneys fees in connection with the subject action.”   A. Rutkin, S. Oldham & K. Hogan 7 Connecticut Practice Series:  Family Law and Practice with Forms (2010) § 20–2, p. 240;  see also Notice of automatic orders—Form JD–FM–158 Rev. 907.  “[B]y their very definition, [pendente lite orders] are orders that continue to be in force during the pendency of a suit action or litigation ․ [They] necessarily cease to exist once a final judgment in the dispute has been rendered ․ Pendente orders do not survive the entry or rendition of judgment.”  (Citations omitted;  internal quotation marks omitted.)  Febbroriello v. Febbroriello, 21 Conn.App. 200, 206, 572 A.2d 1032 (1990).  “[T]he purpose of the rule is ‘to assist families in transition in maintaining, to the greatest extent possible, the status quo at the commencement of an action for dissolution of marriage.’   “ Strich v. Strich, 47 Conn.Sup. 530, 532, 812 A.2d 216 (2002).

When considering domestic relations cases, “[t]he paramount role of [the] court ․ is [that] of a court of equity.   The court's equity powers are essential to its ability to fashion the appropriate relief in domestic relation cases.   The power to act equitably is the keystone to the court's ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage.   Without this wide discretion and broad and equitable power, the courts in some cases might be unable fairly to resolve the parties' dispute ․ These powers, although not expressly given to the court by statute, have been held to be inherent powers of the trial court ․” (Internal quotation marks omitted.)  Febbroriello v. Febbroriello, supra, 21 Conn.App. 208.   The inherent power of the court “exists independently ․ and arises because of the control that must necessarily be vested in courts in order for them to be able to manage their own affairs so as to achieve an orderly and expeditious disposition of cases ․ Simply stated, [t]he inherent powers of ․ courts are those which are necessary to the exercise of all others.”   (Internal quotation marks omitted.)  Feuerman v. Feuerman, 39 Conn.App. 775, 777, 667 A.2d 802 (1995).

In the present case, the transfer requested by the defendant does not fall within the purview of § 25–5 of the rules of practice.   It is not a request that involves the visitation and support of a child.   It is not a request for alimony.   Nor is there any consent given by the plaintiff to make the transfer of the business owned by her, even if the business lacks success.   The purpose of pendente lite orders is to maintain the status quo of the parties that is present at the commencement of this action.   This transfer will not assist the defendant in maintaining that status quo as the business does not generate sufficient revenue for either household expenses or attorneys fees.   There is no remedy that the court can fashion to resolve the dispute equitably without the consent of the plaintiff, which appears not to be forthcoming.   As a pendente lite order any transfer will cease to exist once there is a final judgment.   Therefore, the court should await to address this issue as part of a final judgment.   Therefore, the court denies the defendant's motion to transfer the plaintiff's business to him.

OWENS, J.T.R.

FOOTNOTES

FN1. The defendant relies on General Statutes § 30–14(c) for the proposition that the Liquor Control Commission would honor a court order to transfer an interest in the business from one individual to another.   Section 30–14(c) is limited to allowing executors or administrators of the estate of any deceased permittee, and the trustees of any insolvent or bankrupt estate of a permittee, to continue the business of the sale or manufacture of alcoholic liquor under order of the appropriate court and may exercise the privileges of the deceased or insolvent or bankrupt permittee for a period not exceeding six months after the date of such deceased or of such insolvency or bankruptcy, or until such time as the applicable permit expires.   Contrary to the defendant's claim, this statute, even by analogy, does not provide the court with the authority to make a transfer of the business..  FN1. The defendant relies on General Statutes § 30–14(c) for the proposition that the Liquor Control Commission would honor a court order to transfer an interest in the business from one individual to another.   Section 30–14(c) is limited to allowing executors or administrators of the estate of any deceased permittee, and the trustees of any insolvent or bankrupt estate of a permittee, to continue the business of the sale or manufacture of alcoholic liquor under order of the appropriate court and may exercise the privileges of the deceased or insolvent or bankrupt permittee for a period not exceeding six months after the date of such deceased or of such insolvency or bankruptcy, or until such time as the applicable permit expires.   Contrary to the defendant's claim, this statute, even by analogy, does not provide the court with the authority to make a transfer of the business.

FN2. Neither party has provided the court with any legal authority on the issue of transferring the business as part of the court's pendente lite orders.   Moreover, as the defendant recognizes the transfer of the liquor permit is a nonissue at this time..  FN2. Neither party has provided the court with any legal authority on the issue of transferring the business as part of the court's pendente lite orders.   Moreover, as the defendant recognizes the transfer of the liquor permit is a nonissue at this time.

Owens, Howard T., J.T.R.