author: Glass, J.

text:
    In re Luis C.

    (13452)
    Healey, Shea, Callahan, Glass and Hull, Js.
    Argued December 9, 1988
    decision released February 21, 1989

      LynnB. Cochrane, with whom was Judith Solomon, for the appellant (respondent mother).

      Judith Merrill Earl, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert W. Garvey, assistant attorney general, for the appellee (petitioner).

      Antoinette Leone Ruzzier, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46M42 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Supreme Court.
      Reporter of Judicial Decisions

   Glass, J.

This is an appeal by the respondent, Elba M., from the judgment of the trial court terminating her parental rights to Luis C., her son, pursuant to General Statutes § 17-43a (b) (2) and (4). On appeal, the respondent claims that the trial court erred in concluding that she had failed to achieve a degree of personal rehabilitation that would allow her to assume a responsible position in the child’s life. She also claims that General Statutes § 17-43a (b) (4) violates the due process clauses of the Connecticut and United States constitutions. We find no error.

As a result of allegations that Luis had been physically abused, on April 2,1982, the department of children and youth services (DCYS) filed a petition in the trial court alleging that Luis was a neglected child. Luis was eighteen months old at the time the petition was filed. Pursuant to an order of temporary custody, Luis, whose biological parents were Hispanic, was taken into custody by DCYS, and was placed in the home of non-Hispanic foster parents in May, 1982. Luis has been in their care since that time. Following a hearing on the petition, the trial court on September 9,1982, adjudicated Luis a neglected child because of parental abuse, and committed him to the care and custody of the commissioner of DCYS for a period up to eighteen months. With the respondent’s agreement, Luis’s commitment to DCYS was extended for a period of eighteen months in February, 1984, and for an additional eighteen months in August, 1985.

On October 23,1986, the commissioner of DCYS filed a petition to terminate the parental rights of the respondent and Victor, Luis’s father. The commissioner alleged that Victor had abandoned Luis, and that the respondent’s parental rights to Luis should be terminated on the basis of § 17-43a (b) (2) and (4). Section § 17-43a (b) (2) provides that the trial court may grant a petition to terminate parental rights based upon proof by clear and convincing evidence that the parents of a child, previously adjudicated by the Superior Court to be neglected, have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the child’s age and needs, they could assume a responsible position in the child’s life'. Section 17-43a (b) (4) provides that parental rights may be terminated if by clear and convincing evidence it is proven that there is no ongoing parent-child relationship.

In March and April, 1986, the trial court conducted a hearing on the commissioner’s petition to terminate the respondent’s parental rights to Luis. The trial court heard testimony from several counselors who had worked with Luis and the respondent. Louise Leavenworth, a social worker, testified that she observed twenty-three visits by the respondent with Luis during the period from December, 1984, to July, 1986. She testified that she found very little interaction initiated by the mother with Luis, and that Luis reacted negatively toward his mother. Leavenworth testified that Luis had become concerned about the court proceeding and where he was going to live. She further testified that adoption by the foster parents would have a positive influence on Luis and that a reunification with his mother would be negative. She concluded that no meaningful relationship between Luis and his mother would be likely to develop.

The respondent engaged in counseling at two separate facilities beginning in 1982. In October, 1982, she was referred by DCYS to Hartford Community Health Services for parenting skills counseling. The scheduled weekly sessions were discontinued in May, 1983, because of her absences. The substance of the testimony of her counselor from Hartford Community Health Services was that the respondent did not experience any substantial increase in parenting skills as a result of the sessions. In 1984, the respondent began counseling with the Institute for the Hispanic Family, initially for the purpose of dealing with the respondent’s problems of getting independent housing, reunification with Luis and parenting of her newborn child, Carlos. The main efforts of this counseling activity were directed toward Carlos, who had been a difficult child to raise. The respondent’s counselor, Gloria Gerena, testified that she observed a visit between the respondent and Luis in November, 1985. She described the visit as friendly and not negative, but that Luis treated the respondent as a friend and not as his mother. Gerena also testified that, based on her work with the respondent over a two and one-half year period, it was her opinion that the respondent had the “potential” to develop adequate parenting skills.

Pursuant to the trial court’s order, in September, 1985, Dr. Julia Ramos-McKay, a psychologist, performed an evaluation of the respondent, the foster mother and Luis. She testified that the respondent’s and Luis’s relationship was “friendly” but was not that of a mother and child. She further testified that Luis’s foster mother was the child’s “psychological” parent, and that Luis referred to his foster mother as “Mom.” Ramos-McKay suggested that, as of September, 1985, the respondent may not have had command of common parental techniques. Dr. Henry Kranzler, a specialist in cultural psychiatry, testified for the respondent. Kranzler was unable to render a definitive opinion on whether it would be possible to reunite the respondent and Luis in the future. He also testified that it would be “disastrous” for Luis to return to an Hispanic cultural environment in light of the fact that Luis had spent the previous four and one-half years in an Anglo-American environment with his foster parents.

The trial court also heard testimony that, at the time of DCYS’ initial involvement with Luis in connection with the original abuse allegation, the respondent lived on Groton Street in Hartford. Thereafter, she moved to Vine Street. She was evasive about her other residences. Housing had been difficult to obtain because of a lack of housing units and a lack of money. Gerena, one of the respondent’s counselors, contacted the Hartford Housing Authority on behalf of the respondent and furnished other housing leads to her. At the time of the termination hearing, the respondent had an apartment in the Charter Oak public housing project, but according to Gerena, the street on which the respondent lived was considered the worst street in the project because of a high crime rate.

Luis, who was almost seven years old at the time of the termination hearing, did not testify. The trial court found that the parties had stipulated that Luis loved his foster parents, considered them to be his mother and father, and wanted to live with them and not the respondent. The trial court determined that because Luis has grown up as a non-Hispanic child in the foster home, his relationship to his Hispanic mother had suffered, that the difference in cultures between mother and child adversely affected their relationship, and that Luis’s return to an Hispanic culture after this stay in the Anglo-American foster home would be disastrous. The trial court further found that the respondent’s visits with her son at his foster home had not been productive. The visits caused Luis to experience tension and anxiety. Following the respondent’s visits, Luis experienced nightmares, maladjustment at school, mood changes and bed wetting. A pediatric nurse and a kindergarten teacher confirmed Luis’s negative reaction to the respondent’s visits. The trial court sanctioned the cessation of the respondent’s visits in January, 1986, and thereafter Luis no longer suffered from the negative reactions identified as having been caused by the respondent’s visits. The trial court further found that the respondent’s parenting skills were deficient and that her relationship with Luis had suffered because of this deficiency.

Pursuant to General Statutes § 17-43a (d), the trial court, in its memorandum of decision, made specific findings regarding the six statutory factors necessary for consideration in a proceeding to terminate parental rights. While many of these findings are evident from our recitation of the facts, for emphasis, we will recapitulate those findings here. The court found that the counseling services provided to the respondent had little effect in improving her parenting skills. It also found that the respondent had displayed little dedication to meeting obligations that she had agreed to, such as maintaining contact with DCYS and attending parenting skills programs. It further found that Luis, who was six years of age at the time of the termination hearing, had bonded with his foster parents, and that the respondent had made only limited efforts to adjust her conduct and circumstances so that Luis’s return to live with her would be in his best interests. It also found that the respondent’s efforts to maintain a meaningful relationship with Luis had not been interfered with by any other person. Accordingly, the trial court found that the evidence was clear and convincing that the respondent had failed to achieve the necessary level of rehabilitation required under § 17-43a (b) (2) and that there was no ongoing parent-child relationship as provided by § 17-43a (b) (4). The trial court also concluded that the evidence was clear and convincing that it was in Luis’s best interests to grant DCYS’ petition to terminate the respondent’s parental rights.

I

The respondent's principal claim is that the trial court erred in finding by clear and convincing evidence that she had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of her child, she could assume a responsible position in his life. General Statutes § 17-43a (b) (2).

“The termination of parental rights is defined as ‘the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent . . . . ’ General Statutes § 17-32a (e) (Rev. to 1972) [now § 45-61b (g)]. Although that ultimate interference by the state in the parent-child relationship may be required under certain circumstances, the natural rights of parents in their children ‘undeniably warrants deference and, absent a powerful countervailing interest, protection.’ Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 [1972]; see In re Appeal of Kindis, 162 Conn. 239, 240, 294 A.2d 316 [1972]; Cinque v. Boyd, [99 Conn. 70, 82, 121 A. 678 (1923)].” Anonymous v. Norton, 168 Conn. 421, 425, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975). Termination of parental rights is “a most serious and sensitive judicial action.” Id., 430.

“Section 17-43a carefully sets out . . . four situations that, in the judgment of the legislature, constitute ‘countervailing interests’ sufficiently powerful to justify the termination of parental rights in the absence of consent. The commissioner of children and youth services, in petitioning to terminate those rights, must allege and prove one or more of the statutory grounds. In contrast to custody proceedings, in which the best interests of the child are always the paramount consideration and in fact usually dictate the outcome, in termination proceedings the statutory criteria must be met before termination can be accomplished and adoption proceedings begun. No all-encompassing ‘best interests’ standard vitiates the requirement of compliance with the statutory criteria. See Alsager v. District Court of Polk County, [406 F. Sup. 10 (S.D. Iowa 1975), aff’d, 545 F.2d 1137 (8th Cir. 1976)]; In re Adoption of Children by D., 61 N.J. 89, 293 A.2d 171 (1972); Malpass v. Morgan, 213 Va. 393, 192 S.E.2d 794 (1972); Ketcham & Babcock, ‘Statutory Standards for the Involuntary Termination of Parental Rights,’ 29 Rutgers L. Rev. 530, 539 (1976); comment, ‘Termination of Parental Rights in Adoption Cases: Focusing on the Child,’ 14 J. Fam. L. 547, 550 (1975).” In re Juvenile Appeal (Anonymous), 177 Conn. 648, 671-72, 420 A.2d 875 (1979).

The respondent mounts a three pronged attack on the trial court’s decision granting the petition to terminate her parental rights to Luis. She argues that the evidence adduced at the hearing showed that she did in fact successfully rehabilitate herself to the extent that, with some supportive counseling services, she currently could be a responsible parent to Luis. She also maintains that the trial court narrowly and improperly construed the term “rehabilitation” under § 17-43a (b) (2) and further, that the court based its decision in part on factors for which the respondent was not responsible. She maintains, therefore, that the trial court’s determination that the evidence was clear and convincing that the respondent had failed to rehabilitate herself was clearly erroneous. We are not persuaded.

A determination by the trial court under § 17-43a (b) (2) that the evidence is clear and convincing that the parent has not rehabilitated himself or herself will be disturbed only if that finding is “not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” In re Juvenile Appeal (84-3), 1 Conn. App. 463, 478, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984). In the present case, the trial court’s findings, which are amply supported by the record, indicate that the respondent’s visits with Luis were not productive toward maintaining or reinforcing a parent-child relationship, that Luis reacted negatively toward her, that the progress the respondent had made in improving her parenting skills with respect to Luis was unpromising, that the prospects of the respondent achieving a useful and constructive role as a parent to Luis were crucially impaired by language and cultural barriers, that Luis had psychologically bonded with his foster parents with whom he had lived for the last five years of his almost seven year life, and that the respondent continued to have difficulty in obtaining adequate housing. Moreover, the trial court found that DCYS had made reasonable efforts to reunify the respondent with Luis. In light of these findings as supported by the record, we are not persuaded that the trial court was clearly erroneous in concluding that the evidence clearly and convincingly demonstrated that the respondent had failed to achieve a level of rehabilitation that would encourage the belief that, within a reasonable time, considering Luis’s age and needs, the respondent could assume a responsible position in Luis’s life. General Statutes § 17-43a (b) (2).

The respondent argues, however, that the term “rehabilitation,” as used in § 17-43a (b) (2), does not require the parent to be able to assume full responsibility for a child without the use of available support programs. She also claims that her failure to fulfill all court expectations does not equate with a conclusion that she could not assume a responsible position in the child’s life. See In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 532, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986); In re Juvenile Appeal (84-3), supra. We have no quarrel with the propositions to which the respondent alludes. We note, however, that as it is presently written, § 17-43a (b) (2) requires parental rights to be terminated if by clear and convincing evidence it is established that the respondent’s level of rehabilitation falls short of the level which would “encourage the belief that within a reasonable time, considering the age and needs of the child, ” the parent could assume a responsible position. (Emphasis added.) Thus, the statute requires the trial court to analyze the respondent’s rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable “within a reasonable time.” There may be instances in which the evidence does not establish that parental rights should be terminated under this section, despite the fact that continuing support programs for the parent may be suitable or even necessary. The trial court in the present case, however, determined that, with regard to Luis’s age and needs, the respondent had not been rehabilitated. Further, the record discloses that the trial court based its conclusion on a plenary consideration of the factors identified in § 17-43a (d), and did not grant the petition to terminate the respondent’s parental rights solely on the basis of the respondent’s failure to abide consistently by agreements entered into with the court.

The respondent also suggests that the trial court’s decision was erroneous because it was based in part on financial, language and cultural barriers “not of her own making” which rendered difficult the task of reunification with Luis. The record, however, indicates that the trial court found that the respondent’s failure to reunify with Luis was not primarily the result of her financial difficulties. Moreover, although it is true that the cultural and linguistic barriers between the respondent and Luis resulted from Luis’s placement with a non-Hispanic foster family, the trial court found that “[wjhile placement within the extended family or in an Hispanic foster home might have been better than use of this non-Hispanic home, those alternative options have not been available.”

We recognize that some of the facts relied on by the trial court in granting the petition to terminate parental rights cannot be attributed to a lack of moral responsibility or commitment on the part of the respondent. Under § 17-43a, however, the trial court’s obligation is not to make an unguided investigation of the respondent’s “fault” in determining whether to grant a petition to terminate parental rights, any more than its disposition is intended to reflect some kind of moral judgment respecting a parent whose rights are terminated. Nor may this court invalidate the statutory criteria of § 17-43a merely because that criteria may in some instances implement the legislature’s judgment that parental rights should be terminated despite the fact that a particular parent, with the best intentions, personally may be incapable of overcoming deficiencies in parenting skills. “This court has ‘[i]nsist[ed] upon strict compliance with the statutory criteria [of § 17-43a] before termination of parental rights and subsequent adoption proceedings can occur . . . . ’ ” (Citation omitted.) In re Juvenile Appeal (84 -BC), 194 Conn. 252, 257 n.9, 479 A.2d 1204 (1984). “Insistence upon strict compliance with the statutory criteria . . . enhances the child’s best interests by promoting autonomous families and by reducing the dangers of arbitrary and biased decisions amounting to state intrusion disguised under the rubric of the child’s ‘best interests.’ ” In re Juvenile Appeal (Anonymous), supra, 672. In the present case, the trial court strictly complied with the requirements of § 17-43a by giving plenary consideration to both subsections (b) (2) and (d) of that statute.

We have reviewed the record together with the transcript, exhibits and briefs in this case, and we are unable to find that the facts found by the trial court as set out in its memorandum of decision are clearly erroneous.

II

The respondent next claims that § 17-43a (b) (4) violates the due process clauses of the Connecticut and United States constitutions. She argues that the state’s attempt to terminate her parental rights on the grounds that there is no ongoing parent-child relationship, and that it would be detrimental to the child’s best interests not to terminate her parental rights, without any showing of parental unfitness, unconstitutionally infringes upon her fundamental right to family integrity. See Roe v. Wade, 410 U.S. 113, 155, 93 S. Ct. 705, 35 L. Ed. 2d 147, reh. denied, 410 U.S. 959, 93 S. Ct. 1409, 35 L. Ed. 2d 694 (1973); Joyner by Lowry v. Dumpson, 712 F.2d 770, 777 (2d Cir. 1983); In re Juvenile Appeal (83-CD), 189 Conn. 276, 455 A.2d 1313 (1983).

Because we have concluded that the evidence was sufficient to support termination of the respondent’s parental rights under § 17-43a (b) (2), it is not necessary to address the respondent’s constitutional challenge to § 17-43a (b) (4). “In a petition to terminate parental rights under section 17-43a, the petitioner must list the grounds relied upon and, if any one of these grounds may be upheld, the order to terminate must stand. In re Juvenile Appeal (83-BC), 189 Conn. 66, 69, 454 A.2d 1262 (1983) (where a mother claimed there was insufficient evidence to terminate her rights on either of two grounds under § 17-43a [b], our conclusion that one of the grounds was supported by the evidence made it unnecessary to consider whether the second ground was supported). Since the [respondent unsuccessfully challenges] one of the statutory bases on which the trial court terminated her parental rights, we do not decide the constitutional issues she has raised in connection with the other . . . [ground].” In re Juvenile Appeal (8k-BC), supra, 258.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 17-43a (b) provides in pertinent part: “The superior court upon hearing and notice . . . may grant such petition [to terminate parental rights] if it finds, upon clear and convincing evidence, that the termination is in the best interest of the child and that . . . with respect to any nonconsenting parent, over an extended period of time, which . . . shall not be less than one year . . . (2) the parents of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, they could assume a responsible position in the life of the child ... or (4) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child.”

       The court on September 9,1982, issued additional orders, providing for the mother to visit the child regularly, to participate in child counseling and parenting skills programs, and to maintain adequate housing.

       The abandonment allegation was based on General Statutes § 17-48a (b) (1) which provides: “The superior court upon hearing and notice . . . may grant such petition [to terminate parental rights] if it finds, upon clear and convincing evidence, that the termination is in the best interest of the child and that . . . with respect to any nonconsenting parent, over an extended period of time, which . . . shall not be less than one year: (1) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child.”
      Regarding the father the trial court stated: ‘ ‘No services could be offered to the father [by DCYS] who failed to maintain contact with DCYS,” and “[t]he father has made no observable effort to adjust his circumstances, conduct or condition to make it in the best interests of Luis to return to his parents in the foreseeable future.” “The father last attended court on the initial commitment hearing on September 9, 1982, when he acknowledged in writing the expectations of the court. The father last saw his son in April, 1982, and has had no further contact. The father has disappeared from his son’s life. The mother admits in her answer that Victor has abandoned the child without visitation since commitment.” The trial court concluded: “As of October 21,1986, father has abandoned his son by the test of Section 17-43a (b) (1).” Accordingly, the parental rights of Victor to Luis were terminated, and Victor has not appealed from the court’s adjudication.

       See footnote 1, supra.

       General Statutes § 17-43a (d) provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (3) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (4) the age of the child; (5) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (6) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”

       The respondent has not challenged the constitutionality of General Statutes § 17-43a (b) (2).


source: Caselaw Access Project

author: Hull, J.

license: Public Domain

text:
    Carol A. Sunbury v. Donald C. Sunbury
    (13438)
    Healey, Shea, Callahan, Covello and Hull, Js.

      Argued December 8, 1988
    decision released February 21, 1989

      Zbigniew S. Rozbicki, with whom, on the brief, was Albert Vasko, for the appellant (plaintiff).

      Sherman M. Tonkonow, for the appellee (defendant).
   Hull, J.

The plaintiff, Carol A. Sunbury, appealed to the Appellate Court challenging the financial orders of the trial court contained in the judgment of dissolution of her marriage to the defendant, Donald C. Sun-bury. Upon determining that the trial court had erred in computing the defendant’s net income, the Appellate Court set aside the trial court’s order regarding periodic alimony, but left intact the remaining financial orders. Sunbury v. Sunbury, 13 Conn. App. 651, 662, 538 A.2d 1082 (1988). We granted certification of the plaintiff’s appeal from the Appellate Court to consider the following issue: “Having found error in the trial court’s calculation of the defendant’s net income, did the Appellate Court err in limiting the issue on remand to a reconsideration of periodic alimony?” We find error.

The factual and procedural background of the case is as follows. The parties were married on November 8, 1958. There were three children, the youngest of whom was eighteen at the time of the judgment of dissolution. The plaintiff was forty-eight years old. She had been employed as a registered nurse for much of her adult life, but had no retirement benefits, pension plan or health insurance. At the time of trial she worked at a convalescent home earning gross wages of $339 per week and a net income of $274 per week. She had minimal assets. The defendant was forty-nine years old, and had received a high school education. He had been employed for seventeen years at Sears, Roebuck and Company (Sears). He reported in his financial affidavit gross earnings of $718 per week reduced to $350 by taxes, life and medical insurance premiums, contributions to an IRA account and a profit sharing plan with Sears. The defendant also had a retirement plan with Sears with three years of service credited. He had a savings account of $30,000. The parties disputed the source of that money. They jointly owned a family dwelling which the plaintiff claimed was worth from $89,000 to $90,000 and the defendant claimed was worth $75,000. There was a mortgage of approximately $4400 on the property at the time of trial.

The trial court rendered judgment finding that the marriage had broken down irretrievably and that the plaintiff was more at fault for the breakdown than the defendant. The judgment included the following orders: (1) the defendant was to pay the plaintiff periodic alimony in the amount of $75 per week for a period of two years; (2) the defendant was to make a lump sum alimony payment of $35,000 to the plaintiff, due and payable two years from the date of the issuance of the order or upon the sale of the marital residence, whichever came first; (3) the plaintiff was to transfer her interest in the marital residence to the defendant; and (4) the defendant was to pay the plaintiff $1000 for counsel fees.

The Appellate Court agreed with the plaintiff that the payments to the profit sharing plan and the IRA account should not have been excluded from the calculation of the defendant’s net income, since they are optional to the employee and inure to his benefit. Thus, the Appellate Court found error in the trial court’s finding that the defendant’s net earnings were approximately $350 per week. It concluded that the IRA and profit sharing contributions should not have been deducted from the defendant’s net income, thereby increasing his net income to approximately $500 per week, an increase of about 46 percent. The Appellate Court then set aside the judgment of the trial court with respect to its order of periodic alimony only, and remanded the case for further proceedings.

On this appeal the plaintiff claims that, in light of the readjustment of the defendant’s net income, on remand, the trial court should be required to reconsider all of its financial orders, and that the Appellate Court erred in limiting the issue on remand to a reconsideration of periodic alimony only. We agree. On the facts of this case, where the Appellate Court ruled that the trial court should have found the defendant’s net income to be 46 percent higher than it actually did, the trial court on remand could no more fashion just and equitable financial orders by reconsidering only the issue of periodic alimony, than it could reassemble a broken vase with only one piece.

The criteria for the assignment of property pursuant to General Statutes § 46b-81 (c) and the ordering of alimony pursuant to General Statutes § 46b-82 are virtually identical. “While an action for divorce or dissolution of marriage is a creature of statute, it is essentially equitable in its nature. Stoner v. Stoner, 163 Conn. 345, 356, 307 A.2d 146 [1972].” Pasquariello v. Pasquariello, 168 Conn. 579, 584, 362 A.2d 835 (1975). “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 equitable power, the courts in some cases might be unable fairly to resolve the parties’ dispute, i.e., where the sole asset of the parties is their residence to which both have contributed. Equity certainly does not contemplate such a result.” Id., 585. It is clear in this case that the residence of the parties is their chief capital asset.

“While the trial court must consider the delineated statutory criteria, no single criterion is preferred over the others, and the court is accorded wide latitude in varying the weight placed upon each item under the peculiar circumstances of each case. Valante v. Valante, 180 Conn. 528, 531, 429 A.2d 964 (1980).” Carpenter v. Carpenter, 188 Conn. 736, 740-41, 453 A.2d 1151 (1982). To limit the remand in this case to the issue of periodic alimony would impede the trial court’s ability to weigh the statutory criteria for financial orders to achieve an equitable result. The issues involving financial orders are entirely interwoven. “The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.” Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984).

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       General Statutes § 46b-81 (c) provides in pertinent part: “In fixing the nature and value of the property, if any, to be assigned, the court . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       General Statutes § 46b-82 provides in pertinent part: “In determining whether alimóhy shall be awarded, and the duration and amount of the award, the court shall . . . consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . . . ”


author: Peters, C. J.

text:
    City of Bridgeport v. Allan C. Debek, Administrator (Estate of Anthony E. Debek), et al.
    (13454)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued December 6, 1988
    decision released February 21, 1989

      IraB. Charmoy, with whom, on the brief, was James M. Nugent, for the appellants (named defendant et al.).

      Mark S. Shipman, with whom were Leonard M. Bieringer, Robert A. Randich and, on the brief, Samuel D. Chester, for the appellee (plaintiff).
   Peters, C. J.

Section Ilf of the Bankruptcy Act of 1898, then 11 U.S.C. § 29f, provided for the suspension of the operation of any state statute of limitations during the pendency of bankruptcy proceedings-. The dispositive issue in this appeal is whether General Statutes § 12-175 is a statute of limitations for the purposes of § Ilf.

The plaintiff, the city of Bridgeport, commenced this tax lien foreclosure action in October, 1981, in order to foreclose tax liens filed in the period from 1968 to 1981 for municipal real property taxes for property on the Bridgeport grand lists for the years 1966 to 1979. On April 22, 1987, the trial court granted in part the plaintiffs motion for summary judgment with regard to the liens filed from 1972 to 1981. On January 11, 1988, the trial court found that the liens filed from 1968 to 1971 were also valid and, therefore, denied the defendants’ motion to dismiss the action. On January 12, 1988, the trial court rendered a judgment of strict foreclosure and found that the total due for all the tax liens was $1,270,622.26. The defendants filed this appeal in the Appellate Court on January 29,1988. We transferred it here pursuant to Practice Book § 4023. We find no error.

The underlying facts are not in dispute. Anthony E. Debek owned real property located at 1315-1357 Main Street in Bridgeport on which no municipal real estate taxes have been paid since June, 1967. Tax liens were filed with respect to these delinquencies each year. An involuntary bankruptcy action was filed against Debek on June 6,1975. Debek died shortly thereafter and his son, the defendant Allan C. Debek, was appointed administrator of his estate. On October 1, 1981, the United States Bankruptcy Court granted the plaintiff relief from the automatic stay of other court proceedings that had been imposed upon the bankrupt estate.

The plaintiff thereupon instituted an action to foreclose the tax liens filed for the years 1966 to 1981 against the defendants Allan C. Debek, Marlene Debek, Todd J. Debek and Margaret Debek, and other parties not involved in the present appeal. On October 30, 1981, the plaintiff delivered the foreclosure complaint and summons to a deputy sheriff, who served each of the defendants involved in this appeal on November 11, 1981. The sheriff failed to make timely service on some defendants not involved in this appeal. None of the defendants filed a motion to dismiss because of insufficiency of service within thirty days of filing an appearance in the case.

The trial court granted the plaintiff’s motions for summary judgment over the defendants’ objection that the ten year statute of limitations contained in General Statutes § 12-175 barred this action. The court concluded, furthermore, that the sheriff’s delay in serving some of the parties originally named in the complaint had not deprived the court of subject matter jurisdiction.

The defendants raise four claims of error. They claim that the trial court erred: (1) in ruling that only those parties not served within the requisite time period had standing to raise a claim of insufficient service of process; (2) in concluding that General Statutes § 12-175 is a statute of limitations whose operation may be extended; (3) in determining that bankruptcy law suspended the operation of the statute of limitations; and (4) consequently in determining that the total tax liens due and owing include the liens for 1966 to 1971. We find no error.

I

We must first consider the defendants’ claim that the trial court lacked subject matter jurisdiction to entertain the plaintiff’s foreclosure action because of the plaintiff’s failure to serve all the defendants within fifteen days as required by General Statutes § 52-592. The trial court held that the defective service of process in this case implicated only the court’s in personam jurisdiction, and thus that the defendants who had been properly served could not prevail on their belated attempt to raise defective service as a defense. Only the defendants who were properly served are parties to this appeal.

The resolution of this issue presents no factual issues. The record fully substantiates the untimely service on some of the defendants, and the complaint about this defect by the remaining defendants, whose own service was entirely proper.

The only issue therefore is whether the trial court correctly concluded that the sheriff’s failure to effect proper service on some defendants did not deprive the court of subject matter jurisdiction. We agree with the trial court. Our precedents make it abundantly clear that, except in the special circumstances of administrative appeals, defects in process do not deprive a court of subject matter jurisdiction. Only last year we reiterated that “ ‘[¿jurisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court. . . .Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person.’ ” (Emphasis added.) Castro v. Viera, 207 Conn. 420, 433-34, 541 A.2d 1216 (1988). The Superior Court lacks subject matter jurisdiction only if it has no competence to entertain the action before it. Meinket v. Levinson, 193 Conn. 110, 115, 474 A.2d 454 (1984); Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 559, 468 A.2d 1230 (1983); Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979); 1 Restatement (Second), Judgments (1982) § 11. “Unlike subject matter jurisdiction . . . personal jurisdiction may be created through consent or waiver.” United States Trust Co. v. Bohart, 197 Conn. 34, 39, 495 A.2d 1034 (1985); see also Insurance Corporation of Ireland v. Compagnie des Bauxites, 456 U.S. 694, 703-704, 102 S. Ct. 2099, 72 L. Ed. 2d 492 (1982). The trial court therefore had the jurisdiction to consider this case on its merits.

II

The defendants’ remaining three claims are actually three aspects of a single claim that the tax liens filed in the years 1968 to 1971 are invalid and unenforceable because no foreclosure action was brought within the ten year limit stipulated by General Statutes § 12-175. The plaintiff and the defendants disagree about whether, pursuant to § Ilf of the Bankruptcy Act, Anthony Debek’s intervening bankruptcy operated to toll the running of this statute. We agree with the plaintiff that the statute was tolled by the Bankruptcy Act.

The defendants contend that § Ilf did not toll the running of the time period allowed by § 12-175 because, in their view, the time limitation that our statute provides is not a statute of limitations. Under § 12-175, “any tax lien . . . recorded . . . for more than ten years shall be invalid . . . unless an action of foreclosure has been commenced during such period of ten years . . . . ” The defendants urge us to construe this language as manifesting the intention of our legislature to establish time constraints that operate as a condition on the enforcement of a substantive right, as a limitation on the underlying liability, rather than as a statute of limitations that merely affects the applicable remedy. They claim that § 12-175 is analogous to other statutes whose time constraints we have construed as a limitation on the underlying liability, such as our mechanic’s lien statute, General Statutes § 49-39; Diamond National Corporation v. Dwelle, 164 Conn. 540, 543, 325 A.2d 259 (1973); see Matter of Reardon, 10 Bankr. 697, 700 (D. Conn. 1981); and our wrongful death statute, General Statutes § 52-555. Ecker v. West Hartford, 205 Conn. 219, 232, 530 A.2d 1056 (1987). The defendants also note that a federal court has construed a time limitation in the Washington mechanic’s lien statute to fall outside of the suspension provisions of § Ilf. In re Warren, 192 F. Sup. 801, 803 (W.D. Wash. 1961).

The defendants may well be right that, for some purposes, § 12-175 is so intimately connected with the statutory creation of municipal tax liens in General Statutes § 12-172 that the time limitations it contains should be construed as substantive limitations on the rights conferred rather than as procedural limitations on available remedies. If that is the appropriate characterization of the statute, then as “a limitation upon the right of action it must be strictly complied with.” DeMartino v. Siemon, 90 Conn. 527, 529, 97 A. 765 (1916). The question before us, however, is not what effect to give to § 12-175 under ordinary commercial circumstances. We must decide instead how this statute fits into the prescriptions of the federal law of bankruptcy.

Our analysis of this issue must start with the recognition that, because of the plenary power over bankruptcy that the United States constitution grants to the federal government; U.S. Const., art. 1, § 8, cl. 4; Congress unquestionably had the power to provide that the filing of a bankruptcy petition tolls time limitations such as those provided by § 12-175. To the extent a state statute and the Bankruptcy Act conflict, the latter governs. Marine Harbor Properties, Inc. v. Manufacturers Trust Co., 317 U.S. 78, 83, 63 S. Ct. 93, 87 L. Ed. 64, reh. denied, 317 U.S. 710, 63 S. Ct. 254, 87 L. Ed. 566 (1942); Kalb v. Feuerstein, 308 U.S. 433, 439, 60 S. Ct. 343, 84 L. Ed. 370 (1940); West Coast Life Ins. Co. v. Merced Irrigation District, 114 F.2d 654, 664 (9th Cir. 1940).

The question therefore becomes whether the Congress, in enacting § Ilf, which provides that the filing of a petition in bankruptcy suspends the operation “of any statute of limitations of . . . any State,” intended to encompass time limitations such as those contained in § 12-175. In order to determine the intent of Congress, we look to the statutory language itself, to see whether it yields a plain and unambiguous answer; if the statute does not on its face lead to a definitive resolution, we turn for guidance to the purpose that the statute was intended to serve, and to the role of this statute within the overall statutory scheme of the Bankruptcy Act. Nicotra Wieler Investment Management, Inc. v. Grower, 207 Conn. 441, 451, 541 A.2d 1226 (1988); State v. Champagne, 206 Conn. 421, 428, 538 A.2d 193 (1988).

Examination of the relevant language of the Bankruptcy Act discloses that, although § 1 of the act provides many definitions, the phrase “statute of limitations” that appears in § Ilf is not defined either there or elsewhere in the act. As a point of departure, we may therefore assume that the Congress intended to use the phrase as it is normally defined. Black’s Law Dictionary states that a “statute of limitations” is “[a] statute prescribing limitations to the right of action on certain described causes of action . . . that is, declaring that no suit shall be maintained on such causes of action . . . unless brought within a specified period of time after the right accrued. Statutes of limitation are statutes of repose, and are such legislative enactments as prescribe the periods within which actions may be brought upon certain claims or within which certain rights may be enforced.” Black’s Law Dictionary (5th Ed. 1979). On its face, § 12-175’s limitations on the right to foreclose tax liens appear to satisfy this definition, which makes no distinction between substantive and procedural limitations on rights of recovery.

A broad definition of “statute of limitations,” for bankruptcy purposes, is consistent, furthermore, with the purpose that § Ilf was intended to serve. The suspension of the running of applicable statutes of limitations is an essential counterpart of the automatic stay, which is “ ‘one of the fundamental debtor protections provided by the bankruptcy laws.’ ” Midlantic National Bank v. New Jersey Department of Environmental Protection, 474 U.S. 494, 503, 106 S. Ct. 755, 88 L. Ed. 2d 859, reh. denied, 457 U.S. 1090, 106 S. Ct. 1482, 89 L. Ed. 2d 736 (1986); H.R. Rep. No. 95-595, 95th Cong., 1st Sess. (1977), reprinted in L. King, Collier on Bankruptcy (15th Ed.), app. 2, pp. 341-42. Under Bankruptcy Rule 601 (a), enacted to implement § 148 of the Bankruptcy Act, the filing of a petition in bankruptcy operates as “a stay of any act or the commencement or continuation of any court proceeding” to enforce a lien against the bankrupt. N.L.R.B. v. Bildisco & Bildisco, 465 U.S. 513, 530, 104 S. Ct. 1188, 79 L. Ed. 2d 482 (1983). The stay provides a “sanctuary from the jungle of creditors’ pursuit of their individualistic collection efforts” in order to safeguard “[t]he primary function of the bankruptcy system . . . to continue the law-based orderliness of the open credit economy in the event of a debtor’s inability or unwillingness generally to pay his debts.” Commission on the Bankruptcy Laws of the United States, H.R. Doc. No. 93-137, 93d Cong., 1st Sess., Pts. I and II (1973), reprinted in L. King, supra, app. 2, c. 3, p. 71. The Bankruptcy Act is rooted in equitable principles. Bank of Marin v. England, 385 U.S. 99, 103, 87 S. Ct. 274, 17 L. Ed. 2d 197 (1966); Pepper v. Litton, 308 U.S. 295, 304-305, 60 S. Ct. 238, 84 L. Ed. 2d 281 (1939). It is likely that the Congress, having provided the debtor with a stay to protect his interests, would have intended the creditor to have coextensive rights to revive causes of action that were unenforceable while the bankruptcy stay was in effect. The defendants in this case have not suggested that, once bankruptcy intervened in 1975, the plaintiff would have been able to foreclose on its tax liens at any time before October 1,1981, when, at its request, the stay was lifted by action of the Bankruptcy Court. In these circumstances, it is only equitable to construe “statute of limitations” in § Ilf to encompass the provisions of § 12-175.

A broad construction of § Ilf finds further support in the legislative history of the enactment of § 108 of the Bankruptcy Code, the 1978 successor to § Ilf of the Bankruptcy Act. Although the new section is on its face more expansive than the old, the drafters apparently believed that the phrase “statute of limitations” as used in the Bankruptcy Act had always referred to statutes that limit thé right to bring an action generally, as opposed to a narrowly defined class of purely procedural limitations on actions. The Commission on the Bankruptcy Laws of the United States in comments to the proposed section (then numbered § 4-102 [b]) stated that the section “is derived from § Ilf of the present Act but reaches to unexpired periods of limitation imposed by agreement or orders entered in other proceedings as well as to those imposed by law . . . .” Commission on the Bankruptcy Laws of the United States, H.R. Doc. No. 93-137, 93d Cong., 1st Sess., Pt. II (1973), reprinted in L. King, supra, app. 2, c. 4, p. 69. Although the drafters commented expressly on the wisdom of extending § Ilf of the act to include limitations other than those imposed by law, they apparently perceived no difference between the former language referring to a suspension of a “statute of limitations” and the new language referring to a “time fixed for commencing an action.” This perception is reenforced by statements made both in the House of Representatives Report on the proposed code, which describes § 108 (c) as extending “the statute of limitations for creditors” (emphasis added); H.R. Rep. No. 95-595, 95th Cong., 1st Sess. (1977), reprinted in L. King, supra, app. 2, p. 318; and in the explanations of the compromise bill by House and Senate floor managers which characterize § 108 (c) as “expressly including] any special suspensions of statutes of limitations periods . . . . ” (Emphasis added.) The House Debate on Compromise Bill, 124 Cong. Rec. H11109 (daily ed. September 28,1978), reprinted in L. King, supra, app. 3, c. 9, p. 127.

All the available indicia thus point to an interpretation of the phrase “statute of limitations” in § Ilf, as a matter of federal law, as a broad reference to state-enacted time constraints, such as § 12-175, without regard to whether such time constraints might, in other circumstances, be viewed as substantive rather than as procedural. Indeed, we have ourselves, as a matter of nomenclature, recognized a linguistic overlap between substantive limitations and statutes of limitations. For example, in Diamond National Corporation v. Dwelle, supra, we stated: “Generally, ‘limitations on actions . . . are considered procedural or personal and thus subject to waiver .... This is so because it is considered that the limitation merely acts as a bar to a remedy otherwise available. . . . Such is not considered to be the case, however, where a specific limitation is contained in the statute which establishes the remedy. Here the remedy exists only during the prescribed period and not thereafter. . . . In such situations the Statute of Limitations is considered substantive . . . . ’ ” (Emphasis added.) Id., 546-47 (holding statute of limitations in statute creating mechanics’ liens substantive), quoting Matter of Benjamin v. State Liquor Authority, 17 App. Div. 2d 71, 73, 230 N.Y.S.2d 888, rev’d on other grounds, 13 N.Y.2d 227, 195 N.E.2d 889 (1947). As a general matter, as the trial court held, we have defined a statute of limitations as a bar to the maintenance of an action. Simonelli v. Fitzgerald, 156 Conn. 49, 53, 238 A.2d 418 (1968); Arnold v. Hollister, 131 Conn. 34, 38, 37 A.2d 695 (1944). The wording of § 12-175 fits within this broad definition because § 12-175 imposes a bar to the maintenance of an action involving tax liens recorded on private property in the land records of the town for more than ten years.

Finally, our conclusion that the phrase “statute of limitations” in § Ilf encompasses the limitations upon suit contained in § 12-175 is buttressed by the analogous holdings of courts in other jurisdictions. Other courts have held that debts valid and enforceable at the time of the filing of a bankruptcy petition retain their validity during the course of the bankruptcy proceedings; In re Berg, 33 F. Sup. 700, 702 (D. Minn. 1940); and “have held generally that the filing of a petition in bankruptcy excused the taking of further action under state law to enforce liens.” In re Etherton, 88 F. Sup. 874, 879 n.15 (S.D. Cal. 1950); see also Martin v. Goggin, 107 Cal. App. 2d 688, 238 P.2d 84 (1951). As the court stated in In re Etherton, supra, 879, where a claimant’s only remedy under state law was to foreclose or to sue, “[h]e, having been prevented from doing so by the effect of a federal statute, the statute of limitation has not run even now.” In re Warren, supra, on which the defendants rely, is distinguishable. That court, noting that § Ilf suspends statutes “affecting the debts of a bankrupt,” construed the time limitation in the relevant state mechanic’s lien statute as affecting only the security for the underlying debt, rather than the enforceability of the debt itself. Id., 804. The trial court’s ruling that the plaintiff’s cause of action was not time-barred was therefore correct.

There is no error.

In this opinion the other justices concurred.

       Title 11 of the United States Code, § 29f, the Bankruptcy Act of 1898, § Ilf, provided: “The operation of any statute of limitations of the United States or of any State, affecting the debts of a bankrupt provable under this Act, shall be suspended during the period from the date of the filing of the petition in bankruptcy (1) until the expiration of thirty days after the date of the entry of an order denying his discharge; or (2) expiration of thirty days after the filing of such waiver or loss of such right . . . or (8) until thirty days after the dismissal of the bankruptcy proceedings, whichever may first occur.”
      Although the Bankruptcy Act of 1898 was replaced by the Bankruptcy Code in 1978, § 403 (a) of the Bankruptcy Reform Act; 11 U.S.C. § 101, preceding note; preserves the applicability of the Bankruptcy Act to these proceedings because the bankruptcy petition in this case was filed in 1975. Section 403 (a) provides that “[a] case commenced under the Bankruptcy Act, and all matters and proceedings in or relating to any such case, shall be conducted and determined under such Act as if this Act had not been enacted, and the substantive rights of parties . . . shall continue to be governed by the law applicable to such case, matter, or proceeding as if the Act had not been enacted.”

         General Statutes (Rev. to 1981) § 12-175 provides in pertinent part: “[A]ny tax lien upon private property which has been recorded in the land records of any town for more than ten years shall be invalid, and such property shall be free from the encumbrance of such lien, unless an action of foreclosure has been commenced during such period of ten years and a notice of lis pendens filed for record, and the town clerk shall, if no such notice has been filed, upon the request of any interested person, discharge such lien of record by noting on the margin of such record the words, ‘Discharged by operation of law.’ ”

       At oral argument in this court, the defendants withdrew two other claims of error.

       Practice Book § 144 provides: “Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss . . . within the time provided by Sec. 142 [within thirty days of the filing of an appearance].”

       Although the foreclosure judgment covered other years as well, only the tax liens filed prior to 1971, for the grand lists of 1966 to 1969, are at issue in the present appeal. These tax liens were filed on April 1,1968, April 1, 1969, April 1, 1970, March 30, 1971, and June 30, 1971, respectively. All of them were timely filed before the initiation of bankruptcy proceedings. The defendants’ claim of error with regard to “liens filed for 1966-1971” raises no independent questions of law with regard to these tax assessments per se.

       “[General Statutes] Sec. 49-39. time limitation of mechanic’s lien, action to foreclose privileged. A mechanic’s lien shall not continue in force for a longer period than one year after the lien has been perfected, unless the party claiming the lien commences an action to foreclose it, by complaint, cross-complaint or counterclaim, and records a notice of lis pen-dens in evidence thereof on the land records of the town in which the lien is recorded within one year from the date the lien was recorded or within sixty days of any final disposition of an appeal taken in accordance with section 49-35c, whichever is later. Each such lien, after the expiration of the one-year period or sixty-day period, as the case may be, without action commenced and notice thereof filed as aforesaid; shall be invalid and discharged as a matter of law. An action to foreclose a mechanic’s lien shall be privileged in respect to assignment for trial. With respect to any such lien which was validated in accordance with the provisions of section 49-37a, the one-year period or sixty-day period, as the case may be, shall toll from the date of the validation.”

       General Statutes § 52-555 provides in relevant part: “In any action surviving to or brought by an executor or administrator for injuries resulting in death . . . such executor or administrator may recover from the party legally at fault for such injuries just damages . . . provided no action shall be brought . . . but within two years from the date when the injury is first sustained or discovered.....”

       General Statutes § 12-172, which provides for the creation of municipal tax liens, states: “tax liens; precedence; enforcement. The interest of each person in each item of real estate, which has been legally set in his assessment list, shall be subject to a lien for that part of his taxes laid upon the valuation of such interest, as found in such list when finally completed, as such part may be increased by interest, fees and charges. Such lien, unless otherwise specially provided by law, shall exist from the first day of October or other assessment date of the municipality in the year previous to that in which such tax, or the first instalment thereof, became due until one year after such tax or first instalment thereof became due and, during its existence, shall take precedence of all transfers and encumbrances in any manner affecting such interest in such item, or any part of it. Such lien, during its existence, may be enforced by levy and sale of such real estate if such person has complete title thereto or of his interest in such real estate if he does not have complete title thereto. No sale of real estate for taxes or foreclosure of any lien shall divest the estate sold of any existing lien for other taxes.”
      The right only to continue the existence of a lien created pursuant to § 12-172 beyond one year after such tax or first installment becomes due is provided by General Statutes § 12-175.

       The constitution of the United States, article first, § 8, clause 4, provides in part: “To establish . . . uniform Laws on the subject of Bankruptcies throughout the United States . . . .”

       Rules of Bankruptcy Procedure (1976), Rule 601 (a) provides in pertinent part: “The filing of a petition shall operate as a stay of any act or the commencement or continuation of any court proceeding to enforce (1) a lien against property in the custody of the bankruptcy court, or (2) a lien against the property of the bankrupt obtained within 4 months before bankruptcy . . . . ”

       The plaintiff pursued the appropriate course of action by filing for relief from the automatic stay in order to foreclose the liens. The city should not have to choose between seeking foreclosure upon tax liens in violation of federal law and foregoing revenues legitimately owed by the bankrupt.

       Title 11 of the United States Code (1986 Sup.), § 108 provides in pertinent part: “(c) Except as provided in § 524 of this title, if applicable non-bankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor . . . and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of—(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or (2) 30 days after notice of the termination or expiration of the stay under section 362, 922, or 1301 of this title, as the case may be, with respect to such claim.”

       Section 4-102 read: “extensions for creditors. Where by agreement, order entered in any proceeding, or other applicable law, a time is fixed for commencing an action on a claim against the debtor that has not expired at the date of the petition under this Act, such time shall be suspended until 30 days after the stay of the commencement of an action on such claim under section 4-501 has been terminated or has expired.” Commission on the Bankruptcy Laws of the United States, H.R. Doc. No. 93-137, 93d Cong., 1st Sess., Pt. II, reprinted in L. King, Collier on Bankruptcy (15th Ed.) app. 2, c. 4, p. 68.

       We note that the defendants in this case have not argued that General Statutes § 12-175 affects only the security for the underlying debt, presumably because of the terms of our municipal tax lien statutes. See footnote 8, supra.


author: Covello, J.

text:
    James G. Malerba v. Cessna Aircraft Company
    (13492)
    Peters, C. J., Healey, Callahan, Glass and Covello, Js.

      Argued November 9, 1988
    decision released February 21, 1989

      Steven E. Arnold, with whom, on the brief, was Constance L. Epstein, for the appellant (defendant-third party plaintiff Cessna Aircraft Company).

      F. Timothy McNamara, for the appellee (plaintiff).

      James H. Rotondo, with whom was John S. Haverstock, for the appellee (third party defendant Edward A. Schuler).
   Covello, J.

The plaintiff, James G. Malerba, brought an action against the defendant, Cessna Aircraft Company (Cessna), seeking damages for personal injuries sustained in an airplane accident. The complaint contained three counts, each alleging a separate theory of recovery: (1) negligence; (2) strict product liability; and (3) breach of warranty. Cessna filed a motion for permission to serve a third party complaint pursuant to Practice Book § 117. The trial court, Nash, J., granted the motion. The third party complaint was in four counts and was directed against the aircraft’s owner, Edward A. Schuler, and the aircraft’s mechanic, Peter Lindblom. Counts one and two sought recovery from Schuler based upon common law principles of: (1) indemnification (first count); and (2) contribution (second count). Counts three and four sought recovery from Lindblom, again based upon common law principles of: (1) indemnification (third count); and (2) contribution (fourth count).

Malerba filed a motion to strike the third party complaint in its entirety claiming “it seeks contribution [in away] . . . not recognized under Connecticut law.” Schuler, a third party defendant, also filed a motion to strike addressed to the second count (the contribution claim) of the third party complaint “because its claim for contribution . . . fails to state a claim for which relief can be granted.” The trial court, Stanley, J., thereafter granted both motions and ordered the third party complaint stricken in its entirety. The trial court concluded: (1) common law principles of indemnification had been “abrogated by virtue of our Product Liability Act”; General Statutes §§ 52-240a, 52-240b, 52-572m through 52-572r and 52-577a; and (2) the third party complaint failed to allege either of the preconditions for the initiation of a contribution action apparently required by General Statutes § 52-572o (e). Following the entry of judgment in favor of the third party defendant Schuler, Cessna appealed. We find error and remand for further proceedings.

As a threshold consideration, Cessna argues that Malerba, the original plaintiff, lacked standing to challenge the third party complaint. It argues that since Malerba could not be injured or prejudiced by Cessna’s claim against the third party defendants, Malerba lacked standing to challenge the legal sufficiency of Cessna’s third party complaint. We disagree.

“When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . . . .” Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 492, 400 A.2d 726 (1978). “[Standing is] ordinarily held to have been met when a complainant makes a colorable claim of direct injury he ... is likely to suffer . . . .” Maloney v. Pac, 183 Conn. 313, 321, 439 A.2d 349 (1981).

The question then is whether the third party complaint and the parties it draws into the action create a risk of a direct injury to the original plaintiff. Injury in this context includes procedural injury to the cause of action. Practice Book § 117 provides that the third party complaint “shall be equivalent . . . to an original .. . complaint, and [the third party defendant] shall have available to him all remedies available to an original defendant .... The third-party defendant may also assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiffs claim and may assert any claim against the plaintiff arising out of the . . . occurrence which is the subject matter of the plaintiffs claim against the third-party plaintiff.” (Emphasis added.) See Gino’s Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 141-43, 475 A.2d 305 (1984). It is apparent that Practice Book § 117 thus arms a third party defendant with the full panoply of procedural options available to address not only the claim of the third party plaintiff but also the claim of the original plaintiff against the original defendant. The addition of two defendants with perhaps greater insights as to both the factual and legal ramifications of the original cause of action creates at least a colorable claim of a likelihood of injury to the plaintiffs cause of action. This being the case, we conclude that the plaintiff had standing to challenge the sufficiency of the third party complaint.

Cessna next claims that the trial court erred in concluding that actions for a contribution within the context of a product liability claim, must meet the provisions of General Statutes § 52-572o (e) as a precondition to the initiation of the contribution action, i.e., the entry of a judgment against the joint tortfeasors and actual payment by one of them to the original claimant or an agreement by one of the tortfeasors to pay the claimant which is thereafter fully executed. While § 52-572o (e) establishes preconditions to the initiation of a contribution action, this statute must be construed in harmony, if that is possible, with General Statutes § 52-102a (a), which authorizes the impleading of third parties by a defendant in a civil action without such preconditions. This latter provision states in relevant part: “A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.” (Emphasis added.)

General Statutes § 52-102a is similar in content to General Statutes § 52-577a (b) which is the statute of limitations in product liability actions. This latter statute provides: “In any [product liability] action a product seller may implead any third party who is or may be liable for all or part of the claimant’s claim, if such third party defendant is served with the third party complaint within one year from the date the cause of action brought under subsection (a) of this section is returned to court.” While § 52-577a (b) omits the words “to him” which are found in § 52-102a, the failure to identify specifically to whom the impleaded third party may be liable does not preclude parallel treatment of the two statutes in view of their otherwise similar language. Link v. Shelton, 186 Conn. 623, 627, 443 A.2d 902 (1982).

In Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 412, 207 A.2d 732 (1965), we observed that “indemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest, while contribution involves a claim for reimbursement of a share of a payment necessarily made by the claimant which equitably should have been paid in part by others.” (Emphasis added.) It is evident that the language of § 52-102a, which describes a third party who may be liable to the defendant for all or part of the claim, refers to causes of action for indemnity and contribution respectively. Thus, while § 52-572o (e) requires some disposition of the original claim as a precondition to the initiation of a cause of action seeking contribution from a third party, §§ 52-102a and 52-577a (b) implicitly authorize the inclusion of such a claim in the original product liability action without any preconditions.

“If the statutes appear to be repugnant, but both can be construed together, both are given effect.” Hirschfeld v. Commission on Claims, 172 Conn. 603, 607, 376 A.2d 71 (1977). Such a reconciliation is especially important in dealing with provisions that are enacted as part of the same legislation. Shelby Mutual Ins. Co. v. Della Ghelfa, 200 Conn. 630, 637, 513 A.2d 52 (1986).

We harmonize the apparent inconsistency between the three statutes by concluding that the preconditions of § 52-572o (e) apply only to those circumstances where a party elects to pursue an independent cause of action for a contribution rather than impleading the prospectively liable third party as authorized by §§ 52-102a and 52-577a (b). This construction of § 52-572o (e) furthers the salutary purpose of encouraging parties to consolidate the litigation flowing from a given factual circumstance into a single judicial proceeding thereby avoiding multiplicity of actions. Our earlier analysis of § 52-102a recognized this to be the case. See Senior v. Hope, 156 Conn. 92, 96, 239 A.2d 486 (1968); see also F. James & G. Hazard, Civil Procedure (3d Ed. 1985) § 10.18. In view of the similarity in language between §§ 52-102a and 52-577a (b), we see no reason why this analysis is not equally applicable to § 52-577a (b). Since these statutes implicitly authorize the initiation of contribution actions by defendants in product liability cases, and the preconditions of § 52-572o (e) apply only to independent contribution actions, we conclude that the trial court erred in striking the second and fourth counts of the third party complaint.

Cessna next claims that the court erred in striking the remaining paragraphs of the third party complaint which sought indemnification from Schuler and Lindblom. The plaintiff argues that actions for common law indemnification within the context of a product liability claim have been abrogated by the adoption of the product liability act. We disagree.

As earlier discussed, there is within the language of both General Statutes §§ 52-102a and 52-577a (b) implicit authority for defendants to maintain both contribution and indemnification actions against third parties. Further, General Statutes § 52-572r (d) provides: “In any product liability claim for personal injury or death arising out of and in the course of employment subject to the provisions of sections 52-240a, 52-240b, 52-572m to 52-572r, inclusive, and 52-577a, brought against any third party, such third party may not maintain any action for indemnity against any person immune from liability. ” (Emphasis added.) It is fairly inferrable that if indemnity actions are specifically prohibited by the product liability act against those who are otherwise immune from liability, then indemnity actions against those who are not so immune are authorized.

The further question remains, however, whether as a matter of law, an indemnification action may ever be pursued against the background of a statutory comparative liability action where the trier of the first party claim against the various defendants is required to apportion liability among the plaintiff and all the defendants. In other words, does a finding that one defendant is 70 percent liable to the original plaintiff and another defendant 30 percent liable preclude any further finding that one of the defendants may be liable to the other defendant for all or a portion of the sums he or she was required to pay to the plaintiff?

“ ‘A judgment against co-defendants creates no liability between them if none before existed. “Parties to a judgment are not bound by it, in a subsequent controversy between each other, unless they were adversary parties in the original action. If A recovers judgment against B and C upon a contract, which judgment is paid by B, the liability of C to B in a subsequent action for contribution is still an open question, because as to it no issue was made or tried in the former suit. As between the several defendants therein a joint judgment establishes nothing but their joint liability to the plaintiff. Which of the defendants should pay the entire debt, or what proportion each should pay in case each is partly liable, is still unadjudicated.” Freeman on Judgments, § 23.’ [Bulkeley v. House, 62 Conn. 459, 474, 26 A. 352 (1893).] The illustration given relates to a contract, but the principle is equally applicable in tort. 1 Freeman, Judgments (5th Ed.) §§ 422-424; see also Appell v. Schneider & Pomerantz Baking Co., 126 Conn. 16, 18, 8 A.2d 529 [1939]; Bridgeport-City Trust Co. v. Niles-Bement Pond Co., 128 Conn. 4, 8, 20 A.2d 91 [1941]. In 101 A.L.R. 105, it is said that ‘the rule supported by the great weight of authority is that a judgment in favor of the plaintiff in an action against two or more defendants is not res judicata or conclusive of the rights and liabilities of the defendants inter se in a subsequent action between them, unless those rights and liabilities were expressly put in issue in the first action, by cross complaint or other adversary pleadings, and determined by the judgment in the first action.''' (Emphasis added.) Preferred Accident Ins. Co. v. Musante, Berman & Steinberg Co., 133 Conn. 536, 539-40, 52 A.2d 862 (1947).

The reason that the indemnity claim is not finally determined by the first party judgment lies in the fact that indemnification implicates different factual and legal considerations which may be outside of the matters determined in the first party plaintiffs claim under the product liability act. General Statutes § 52-572o (c) provides: “In determining the percentage of responsibility, the trier of fact shall consider, on a comparative basis, both the nature and quality of the conduct of the party.” An indemnitee, however, must prove “that the negligence with which it had been found chargeable was passive or secondary, while the indemnitor had been negligent and in a manner which was active and primary.” Kaplan v. Merberg Wrecking Corporation, supra, 415. The principles are different and are articulated in a different manner. Thus, a finding that a given defendant was liable to the plaintiff does not necessarily determine whether that responsibility was based on a passive negligence which might, therefore, entitle that defendant to a full reimbursement from other defendants based upon indemnification principles.

Based on the implicit language of the foregoing statutes, we conclude that common law indemnification continues as a viable cause of action in the context of product liability claims and that the comparative responsibility principles that serve as its foundation do not bar a later determination of liability as between an indemnitee and an indemnitor. The trial court therefore erred in striking the first and third counts of the third party complaint.

There is error, the judgment is set aside and the case is remanded for further proceedings.

In this opinion the other justices concurred.

       Practice Book § 117 provides in relevant part: “A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a . . . complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.”

       Cessna did not elect to challenge the motion’s apparent failure to comply with Practice Book § 154. Section 154 provides in relevant part: “Each motion to strike . . . shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.” (Emphasis added.)

       General Statutes § 52-572o (e) provides in relevant part: “[T]he person bringing the action for contribution either must have (1) discharged by payment the common liability within the period of the statute of limitations . . . and commenced the action for contribution within one year after payment, or (2) agreed while action was pending to discharge the common liability and, within one year after the agreement, have paid the liability and brought an action for contribution.”

       Practice Book § 157 provides in relevant part: “[W]here an entire complaint . . . has been stricken, and the party whose pleading has been so stricken fails to file a new pleading . . . the court may . . . enter judgment against said party on said stricken complaint. ...”

       See General Statutes §§ 52-240a, 52-240b, 52-572m through 52-572r and 52-577a.

       General Statutes § 52-572o (e) provides: “If a judgment has been rendered, any action for contribution must be brought within one year after the judgment becomes final. If no judgment has been rendered, the person bringing the action for contribution either must have (1) discharged by payment the common liability within the period of the statute of limitations applicable to the right of action of the claimant against him and commenced the action for contribution within one year after payment, or (2) agreed while action was pending to discharge the common liability and, within one year after the agreement, have paid the liability and brought an action for contribution.”

       Cessna was also proceeding in accordance with Practice Book § 117 which authorizes a defendant to implead a third party who may be liable for a part of the claim.

       For a more recent discussion of this issue see 142 A.L.R. 727, wherein it is evident that this is the position held by the vast majority of jurisdictions that have considered this issue.

       We note that our holding in Kyrtatas v. Stop & Shop, Inc., 205 Conn. 694, 702 n.2, 535 A.2d 357 (1988), was specifically limited to its factual circumstances which are different from the procedural posture in which we find this case.