Colon-Collazo v. Cox

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JUAN COLON-COLLAZO v. LESLIE COX
(AC 40858)
Lavine, Prescott and Eveleigh, Js.
Syllabus
The plaintiff sought to recover damages for defamation from the defendant,
who filed a counterclaim for breach of the parties’ separation agreement,
alleging, inter alia, that the plaintiff was in arrears on his obligation to
pay unallocated alimony and child support. Thereafter, the plaintiff
withdrew his complaint, the parties stipulated to the amount due on
the counterclaim, and the trial court rendered judgment on the counter-
claim in accordance with the parties’ stipulation. The defendant subse-
quently applied for, and was granted, a property execution on the con-
tents of a storage unit rented in the name of the plaintiff’s father, and
filed a claim for a determination of interests in the disputed property.
Following an evidentiary hearing, the trial court found that the plaintiff
owned the contents of the storage unit but that a variety of items in
the storage unit were exempt from property execution pursuant to
statute (§ 52-352b). On the defendant’s appeal to this court, held:
1. The trial court erred in determining, sua sponte, that certain property
was statutorily exempt from execution; pursuant to the plain language
of the applicable statute (§ 52-361b [d]), a judgment debtor may claim
an exemption by returning a signed exemption claim form indicating
the property claimed to be exempt, and because § 51-361b (d) makes
clear that if a judgment debtor chooses to claim an exemption, the
judgment debtor must return the exemption claim form, which the
plaintiff here failed to do, the statutory procedures provided for in § 52-
361b (d), which provide for notice, a stay of the property execution
and a hearing to determine the rights to the disputed property, were
not triggered.
2. Even if the plaintiff could assert a claim of exemption over the levied
property without filing the necessary form, the plaintiff failed to seek
a determination that the property was exempt, and, thus, the trial court
should not have exempted any of the items from execution because it
was never asked to do so; the sole claim of the plaintiff at the hearing
was that the items in the storage unit did not belong to him, he failed
to assert in any way that even if the property belong to him it should
be deemed exempt as necessary to him, and, thus, the court improperly
determined that certain items were necessary to the plaintiff despite
the lack of any such claim being made and without supporting evidence.
Argued May 15—officially released October 1, 2019
Procedural History
Action to recover damages for defamation and for
other relief, brought to the Superior Court in the judicial
district of Fairfield, where the defendant filed a counter-
claim; thereafter, the plaintiff withdrew the complaint;
subsequently, the matter was transferred to the judicial
district of Stamford, where the court, Heller, J., ren-
dered judgment on the counterclaim for the defendant
in accordance with a stipulation of the parties; there-
after, the court, Hon. Edward J. Karazin, Jr., judge
trial referee, ordered that certain property of the plain-
tiff was exempt from a property execution, and the
defendant appealed to this court. Reversed in part;
further proceedings.
Thomas B. Noonan, for the appellant (defendant).
Juan Colon-Collazo, pro se, the appellee (plaintiff)
filed a brief.
Opinion
PRESCOTT, J. In this appeal from postjudgment pro-
ceedings to obtain satisfaction of a civil dissolution
judgment, the defendant judgment creditor, Leslie Cox,
appeals from the judgment of the trial court ordering
that certain property of the plaintiff judgment debtor,
Juan Colon-Collazo, is exempt from a property execu-
tion.1 On appeal, the judgment creditor claims that the
court improperly concluded that certain property she
sought to levy was exempt because (1) the judgment
debtor never filed a claim for an exemption as required
by our statutes and case law and (2) its conclusion was
not supported by any evidence. We reverse, in part, the
judgment of the trial court.
The following facts, as found by the trial court, and
procedural history are relevant. In February, 2012, the
judgment debtor initiated an action against his former
wife, the judgment creditor, alleging defamation. The
judgment debtor withdrew the complaint, and the
action proceeded on the judgment creditor’s amended
counterclaim, which alleged various breaches of the
parties’ separation agreement, including that the judg-
ment debtor was in arrears on his obligations to pay
unallocated alimony and child support. The judgment
debtor was unrepresented during these underlying pro-
ceedings and on appeal. The parties stipulated to the
amount due on the counterclaim, and, on November
23, 2015, the court, Heller, J., rendered judgment on
the counterclaim in the amount of $448,946.61, plus
postjudgment interest.
On August 15, 2016, the judgment creditor applied
for a property execution pursuant to General Statutes
§ 52-356a, which was issued by the clerk of the court.
A levying officer seized the property in a storage unit
at Uncle Bob’s Self Service Storage in Stamford (stor-
age unit).2
On May 12, 2017, the judgment creditor filed a ‘‘Claim
for Determination of Interests in Disputed Property’’
form that sought a determination of the parties’ inter-
ests in the personal property in the storage unit, stating
that the storage unit was leased in the name of the
judgment debtor’s father, Juan Colon-Pagan, but that
the judgment debtor stored property in the storage unit
that either belonged to him or was a former marital
asset. See General Statutes § 52-356c.
The clerk of the court signed the section of the ‘‘Claim
for Determination of Interests in Disputed Property’’
form entitled ‘‘Order For Hearing and Notice’’ and set
a hearing date for June 5, 2017. Following an evidentiary
hearing, the court, Hon. Edward R. Karazin, Jr., judge
trial referee, issued a memorandum of decision on July
28, 2017, that determined the interest in the disputed
property contained in the storage unit. The court found
that the storage unit was in the name of the judgment
debtor’s father, but that the judgment debtor owned
the contents of the storage unit. The court noted that
none of the witnesses provided a complete list of the
items in the storage unit, and that it searched the
records and photographs of the inside of the storage
unit to determine its contents. The court determined
that a variety of items in the storage unit statutorily
were exempt, pursuant to General Statutes § 52-352b,
from property execution and that various other items
were to be sold.3 The court ordered that all other boxes
and items not identified were to be sold except that
the judgment debtor would have the ability to review
those boxes to retain financial papers containing per-
sonal, identifying information. The court ordered that
the net proceeds of the sale exceeding $1000 be turned
over to the judgment creditor, and that the judgment
debtor was to retain up to the first $1000. The judgment
creditor filed a motion to reargue, which the court
denied. This appeal followed.
I
The judgment creditor claims that because the judg-
ment debtor did not claim that some or all of the goods
were exempt from levy execution by filing an exemption
claim form, the court’s determination that certain prop-
erty statutorily was exempt from execution was
improper. We agree.
To place the judgment debtor’s claim on appeal in
the proper context, we turn to the relevant statutory
scheme.4 General Statutes § 52-356a (a) (1) provides in
relevant part: ‘‘On application of a judgment creditor or
a judgment creditor’s attorney, stating that a judgment
remains unsatisfied and the amount due thereon, and
subject to the expiration of any stay of enforcement
and expiration of any right of appeal, the clerk of the
court in which the money judgment was rendered shall
issue an execution pursuant to this section against the
nonexempt personal property of the judgment debtor
. . . .’’ Pursuant to General Statutes § 52-350f, ‘‘[a]
money judgment may be enforced against any property
of the judgment debtor unless the property is exempt
from application to the satisfaction of the judgment
under section . . . 52-352b . . . .’’ Section 52-352b
provides a list of personal property that is exempt from
a property execution.
The procedure by which a judgment debtor may claim
an exemption is set forth in General Statutes § 52-361b
(d), which provides in relevant part: ‘‘[A] judgment
debtor may claim an exemption as to property . . .
sought to be levied on . . . in a supplemental proceed-
ing to the original action by return of a signed exemp-
tion claim form, indicating the property . . . claimed
to be exempt . . . . Any claim with respect to a per-
sonal property execution under section 52-356a shall
be returned within twenty days after levy on such prop-
erty. On receipt of the claim, the clerk of the court shall
promptly set the matter for a short calendar hearing
and give notice of the exemption . . . claimed and the
hearing date to all parties . . . .’’ (Emphasis altered.)
Accordingly, this claim presents an issue of statutory
construction over which our review is plenary. ‘‘The
principles that govern statutory construction are well
established. When construing a statute, [o]ur fundamen-
tal objective is to ascertain and give effect to the appar-
ent intent of the legislature. . . . In other words, we
seek to determine, in a reasoned manner, the meaning
of the statutory language as applied to the facts of [the]
case, including the question of whether the language
actually does apply. . . . In seeking to determine that
meaning, General Statutes § 1-2z directs us first to con-
sider the text of the statute itself and its relationship
to other statutes. If, after examining such text and con-
sidering such relationship, the meaning of such text is
plain and unambiguous and does not yield absurd or
unworkable results, extratextual evidence of the mean-
ing of the statute shall not be considered. . . . Issues
of statutory construction involve questions of law over
which we exercise plenary review.’’ (Citation omitted;
internal quotation marks omitted.) State v. Rodriguez-
Roman, 297 Conn. 66, 74–75, 3 A.3d 783 (2010).
The plain language of § 52-361b (d) provides that a
judgment debtor may claim an exemption by returning
a signed exemption claim form indicating the property
claimed to be exempt. The use of the words ‘‘may’’
in the statute denotes that claiming an exemption is
permissive conduct on the part of the judgment debtor.
See Lostritto v. Community Action Agency of New
Haven, Inc., 269 Conn. 10, 20, 848 A.2d 418 (2004) (gen-
erally ‘‘may’’ imports permissive conduct and conferral
of discretion). That same subsection provides that a
judgment debtor ‘‘shall’’ return a signed claim form,
which suggests that the legislature intended to mandate
a procedure that a judgment debtor must follow in
order to make a claim for an exemption.5 See id. (when
legislature uses ‘‘shall’’ and ‘‘may’’ in same statute, those
words ‘‘must then be assumed to have been used with
discrimination and a full awareness of the difference
in their ordinary meanings’’ [internal quotation marks
omitted]); see also Bailey v. State, 65 Conn. App. 592,
604, 783 A.2d 491 (2001) (absent indication to contrary,
use of mandatory term ‘‘shall’’ indicates mandatory leg-
islative directive).
‘‘The test to be applied in determining whether a
statute is mandatory or directory is whether the pre-
scribed mode of action is the essence of the thing to
be accomplished, or in other words, whether it relates
to a matter of substance or a matter of convenience.
. . . If it is a matter of substance, the statutory provi-
sion is mandatory. If, however, the legislative provision
is designed to secure order, system and dispatch in
the proceedings, it is generally held to be directory,
especially where the requirement is stated in affirmative
terms unaccompanied by negative words.’’ (Internal
quotation marks omitted.) Katz v. Commissioner of
Revenue Services, 234 Conn. 614, 617, 662 A.2d 762
(1995).
In our view, the returning of the claim form is an
essential part of the process mandated by the statutory
subsection. The return of the exemption claim form
gives the judgment creditor notice of the dispute as
to ownership of the seized property and provides the
judgment debtor with an opportunity for a hearing to
resolve the dispute. General Statutes § 52-361b (d).
Pending the hearing on such claim, the execution is
stayed and the marshal cannot dispose of the assets.
General Statutes § 52-361b (e). Thus, the language of
§ 52-361b (d) makes clear that if a judgment debtor
chooses to claim an exemption, the judgment debtor
must return the exemption claim form.
Case law and other authority provide additional sup-
port for our determination that it is the judgment debt-
or’s burden to claim an exemption. See Great Country
Bank v. Ogalin, 168 Conn. App. 783, 800–803, 148 A.3d
218 (2016) (third party’s claim that certain expenses
not subject of property execution rejected, inter alia,
because judgment debtor did not avail himself of statu-
tory process to claim exemption under § 52-361b).
‘‘Property is not automatically exempted; it may be
exempted provided the debtor follows proper proce-
dure. Connecticut provides a simple procedure for judg-
ment debtors to claim exemptions. . . . Accordingly,
debtors are required to follow the statutory require-
ments to claim exemptions.’’ (Citations omitted; empha-
sis omitted.) Shrestha v. State Credit Adjustment
Bureau, Inc., 117 F. Supp. 2d 142, 145 (D. Conn. 2000);
see id., 145–46 (interpreting similar statute, General
Statutes § 52-367b).
Although the judgment debtor was served with the
property execution, which included a notice of judg-
ment debtor rights, and was served with a copy of the
exemption form, he did not claim an exemption by filing
the exemption claim form. The exemption claim form,
JD-CV-5b, includes a section entitled ‘‘Section 5–Claim
of Exemption Established by Law.’’6 Because the judg-
ment debtor did not return the exemption form identi-
fying property to be exempt, the statutory procedures
in § 52-361d, which provide for notice, a stay of the
property execution, and a hearing to determine the par-
ties right to the disputed property, were not triggered.
In the present case, the judgment creditor requested
a hearing to determine the rights to the property that
was stored in a unit leased by the judgment debtor’s
father. At the hearing, the judgment debtor maintained
that the seized property belonged to his father.7 There-
fore, even if other procedures in addition to those set
forth by statute might be sufficient to claim an exemp-
tion, the judgment debtor failed to claim properly an
exemption at any time during the pendency of the pro-
ceedings before the trial court.8 Accordingly, the court
improperly determined, sua sponte, that certain prop-
erty was exempt from the property execution pursuant
to § 52-352b.
II
Even if we were to conclude that a judgment debtor
can assert a claim of exemption over levied property
without filing the necessary form, we would still con-
clude, on the present record, that the judgment debtor
failed to seek a determination that the property was
exempt. Thus, we agree with the judgment creditor’s
alternative claim that the judgment debtor presented
no claim or evidence at the hearing that any of the
seized property was exempt.
‘‘As a general rule, the party asserting an exemption
from execution, attachment, or seizure to satisfy a judg-
ment bears the burden of establishing entitlement to
the exemption. Once a judgment creditor proves a judg-
ment debtor owns property, it is the judgment debtor’s
burden to prove that the property is exempt from attach-
ment.’’ (Footnote omitted.) 31 Am. Jur. 2d 1002, Exemp-
tions § 311 (2012).
A determination that property is ‘‘necessary’’ and
therefore exempt from a property execution is a ques-
tion of fact. See Patten v. Smith, 4 Conn. 450, 454 (1823)
(whether articles claimed to be exempted are necessary
is factual inquiry). ‘‘[A] finding of fact will not be over-
turned unless it is clearly erroneous in light of the evi-
dence in the entire record. . . . A finding of fact is
clearly erroneous when there is no evidence in the
record to support it . . . .’’ (Citations omitted; internal
quotation marks omitted.) Baretta v. T & T Structural,
Inc., 42 Conn. App. 522, 525, 681 A.2d 359 (1996).
Section 52-352b provides in relevant part: ‘‘The fol-
lowing property of any natural person shall be exempt:
(a) Necessary apparel, bedding, foodstuffs, household
furniture and appliances . . . (f) Health aids neces-
sary to enable the exemptioner to work or to sustain
health . . . .’’ The term ‘‘necessary’’ is defined within
the postjudgment procedure statutes in relevant part
as ‘‘reasonably required to meet the needs of the exemp-
tioner . . . .’’9 General Statutes § 52-352a (b). The court
found that certain sports equipment was exempt for
health reasons, and that some of the bedding, household
furniture and appliances in the storage unit was also
exempt. See footnote 3 of this opinion. In its decision
on the judgment creditor’s motion to reargue, the court
explained that it took into consideration the statutory
definition of the word ‘‘necessary.’’
An examination of the claim before us10 reveals that
the court found items to be ‘‘necessary’’ to the judgment
debtor despite the lack of any such claim being made
and without supporting evidence. The sole claim of the
judgment debtor at the hearing was that the items in
the storage unit did not belong to him. He failed to
assert in any way that even if the property belonged to
him that it should be deemed exempt as necessary to
him. He testified that in March, 2012, the items were
placed in a storage unit leased by his father and that
the items were transferred to his father at that time.
The judgment debtor argued that, sometime thereafter,
he had returned to Puerto Rico years before the hearing.
The judgment debtor presented no evidence or argu-
ment at the hearing that any property in the storage
unit should be deemed exempt and presented no evi-
dence that the seized property was ‘‘necessary’’ to him.
Having resolved the question of whether the property
was owned by the judgment debtor and not his father,
the trial court should not have exempted any of the
items from execution because it was never asked to
do so.11
The judgment is reversed as to the portion of the
court’s order exempting certain property from the exe-
cution and the case is remanded for further proceedings
as to that property; the judgment is affirmed in all
other respects.
In this opinion, the other judges concurred.
1
For sake of clarity, we refer to Cox as the judgment creditor and Colon-
Collazo as the judgment debtor rather than as defendant and plaintiff.
2
‘‘Goods are levied as part of the process of execution of a judgment.
. . . The execution of a writ of execution consists of two acts, the levy, or
taking property into possession of the sheriff for sale, and the execution
sale itself. . . . A levy on personal property is generally defined as a seizure
of the property. Thus, in most jurisdictions, it is essential to the completion
of a levy of execution upon personal property that there be a seizure,
either actual or constructive, of the property.’’ (Citations omitted; internal
quotation marks omitted.) Nemeth v. Gun Rack, Ltd., 38 Conn. App. 44,
52–53, 659 A.2d 722 (1995).
3
The court stated: ‘‘LIST OF ITEMS TO BE AWARDED OR SOLD:
‘‘1. Charles Dickens desk—Exempt
‘‘2. Base for the break front—Exempt
‘‘3. Refrigerator—Sell
‘‘4. Wine Refrigerator—Sell
‘‘5. Desktop—Exempt
‘‘6. Skis—Sell
‘‘7. Daughter’s bed—Sell
‘‘8. Bikes—Sell all except one of the ex-husband’s choice for health reasons
‘‘9. Brown Jordan’s Furniture—Sell
‘‘10. Base for the partner’s desk—Exempt
‘‘11. Tennis balls and machines—Sell except for one tennis racket for
health reasons and 3 balls
‘‘12. Ducks bed of daughter—Sell
‘‘13. Partner’s desk—Exempt
‘‘14. Skis—Sell
‘‘15. Baseball mitt—Sell
‘‘16. The lamp shown in Exhibit F5—Exempt
‘‘17. Personal pictures as shown in Exhibit F10—Exempt except that the
defendant is to make, at his expense, suitable copies for Leslie Cox . . . .’’
4
By way of background, we note that in 1983, the legislature passed Public
Acts 1983, No. 83-581, which overhauled postjudgment procedures regarding
the enforcement of judgments, attempting to balance the interests of judg-
ment creditors and judgment debtors. Philip Dunn, chairman of the subcom-
mittee responsible for drafting the act concerning postjudgment remedies,
which included § 52-361b, stated: ‘‘This task [of drafting an act concerning
postjudgment remedies] was assigned to the [c]ommission in 1981 . . . and
at that time, the intent was to clean up a hodgepodge of legislation that
regulated and controlled the enforcement of judgments. . . .
‘‘I think the notice requirements of exemptions of the consumers is [a]
large step forward and we feel that the disclosure provisions will be a help
to the people who collect just debts. And I think there’s no way [we] can
avoid not wanting to have [the] just debt collected and by the same token,
there is no intent by the [c]ommission or the legislature to try and take
advantage of a citizen or consumer creditor or debtor.’’ Conn. Joint Standing
Committee Hearings, Judiciary, Pt. 3, 1983 Sess., p. 1075–76.
5
We need not decide whether the twenty day time limit is mandatory or
whether the court can permit a late return of the exemption claim form
because, in the present case, the judgment debtor did not claim an exemption
at any time. At issue in the present case is whether it is the burden of the
judgment debtor to claim an exemption or whether a trial court properly
can exempt certain property even if the judgment debtor failed to claim an
exemption or failed to offer any evidence that certain property statutorily
should be exempt.
6
Section 4 of the exemption claim form provides in relevant part: ‘‘As a
result of a judgment entered against you the attached execution has been
issued against your personal property. Some of your personal property may
be exempt from execution—Certain classes of personal property may be
protected from execution by state statutes or other laws or regulations of
this state or of the United States. A checklist and description of the most
common classes of personal property of a natural person exempt from
execution are listed on page 2 of this form.
‘‘How to claim an exemption established by law—If you want to claim
that the property levied on by the levying officer is exempt by law from
execution you must fill out and sign the Claim of Exemption on page 2 of
this form and return this exemption claim form to the clerk of the Superior
Court at the address above. The form must be received by the clerk of the
Superior Court within 20 days after levy on the property. Upon receipt of
this form, the court clerk will send you and the judgment creditor the date
of the court hearing on your claim.’’ (Emphasis omitted.)
7
The judgment debtor’s father did not seek to intervene in the proceedings
to assert any claim of ownership in the property that was levied by the
marshal.
8
‘‘[Although] . . . [i]t is the established policy of the Connecticut courts
to be solicitous of [self-represented] litigants and when it does not interfere
with the rights of other parties to construe the rules of practice liberally in
favor of the [self-represented] party . . . we are also aware that [a]lthough
we allow [self-represented] litigants some latitude, the right of self-represen-
tation provides no attendant license not to comply with relevant rules of
procedural and substantive law.’’ (Internal quotation marks omitted.) Tongh-
ini v. Tonghini, 152 Conn. App. 231, 240, 98 A.3d 93 (2014).
9
Also included in the definition of ‘‘necessary’’ are items reasonably
required to meet the needs of the exemptioner’s ‘‘dependents including any
special needs by reason of health or physical infirmity.’’ The court did not
find that any of the items associated with the judgment debtor’s daughter
were exempt and no mention was made at the hearing or in the decision
of the judgment debtor having any special needs.
10
The court found that some bedding, household furniture and appliances
were exempt and some were not exempt. It is clear that the court applied
the word ‘‘necessary’’ to modify each item in § 52-352b (a). Because no
claim was raised, and because the requirements in Blumberg Associates
Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123,
161–64, 84 A.3d 840 (2014), for raising nonjurisdictional claims sua sponte
have not been met, we make no determination as to whether the court’s
application was proper.
11
Even if the judgment debtor had claimed that some or all of the property
was exempt because it is reasonably required to meet his needs, we note
that the items have been in storage since 2012. This fact seems fundamentally
inconsistent with any claim that they are necessary to meet the needs of
the judgment debtor, who had asserted at the hearing that he had been in
Puerto Rico for much of that time and had been to the storage facility only
once since 2012.