Opinion
FA165006985S
04-12-2017
Rosemary Fragomeni v. Cosimo F. Fragomeni
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO OPEN
Kenneth L. Shluger, J.
The Defendant, by his attorney, moves that the Court open the judgment rendered pursuant to a written dissolution agreement on October 11, 2016. Both parties appeared before the undersigned on April 10, 2017 and were represented by counsel.
A review of the relevant facts reveals that the parties were divorced, pursuant to a written dissolution agreement on October 11, 2016. The Court (McNamara, J.) canvassed both parties with respect to their written agreement and entered judgment. At the time of the judgment, both parties were self-represented. At the time of the judgment, the Plaintiff wife's financial affidavit revealed a piece of real estate located in Meriden, Connecticut, which she valued at $170,000 with a mortgage of $134,000. The wife's financial affidavit also lists a 401(k) plan valued at $70,000. At the time of the judgment, the Defendant husband's financial affidavit listed no real estate and no retirement plan. The dissolution agreement made no reference to the Plaintiff wife's retirement plan. Regarding real property, the agreement states, " Rosemary Fragomeni will take over mortgage."
At the time of the dissolution, the Court inquired of both parties regarding the voluntariness of the agreement and both parties acknowledged that they understood the agreement, entered into it voluntarily and had no questions.
The Court inquired about the real estate as follows:
The Court: " All right. And as to the division of the real property, Ms. Fragomeni will take over the mortgage?"
Ms. Fragomeni: " Mm-hmm."
The Court: " Is that right?"
Ms. Fragomeni: " yes."
The Court: " Are you going to assign the property to her?"
Mr. Fragomeni: " yes. yes."
The Court: " Okay. So you're gonna (sic) file a quitclaim deed in her name?"
Ms. Fragomeni: " No-his name isn't on the property."
Mr. Fragomeni: " It's all hers."
The Court: " It's solely in yours?"
Ms. Fragomeni: " Correct."
Mr. Fragomeni: " Correct, your honor."
The Court: " So you don't have to worry about that?"
Mr. Fragomeni: " Right. Yes."
Ms. Fragomeni: " Correct."
It appears crystal clear from the record that it was the intention and understanding of the parties and of the Court, that Ms. Fragomeni was the sole owner of the real property and that she was solely responsible for its mortgage and that would continue in the future unchanged.
The Court then inquired about the retirement plan as follows:
The Court: " How about retirement plans?"
Mr. Fragomeni: " No."
The Court: " Do you have a retirement plan?"
Ms. Fragomeni: " I do."
The Court: " All right. And you're gonna (sic) keep your retirement plan?"
Ms. Fragomeni: " That's correct."
Neither party questioned or objected to the assumption that the Plaintiff wife was going to retain her retirement plan in its entirety.
LEGAL DISCUSSION
The Defendant argues that the judgment should be opened because of mutual mistake, that " the parties mistakenly failed to address the disposition of the marital home" and failed to incorporate into the judgment a prior agreement, which they had previously executed. The Defendant also argues in its reply brief dated April 3, 2017 that the parties neglected or failed to address the plaintiff's pension. While the retirement asset is actually a 401(k) plan and not a pension, that asset was in fact addressed in that it is listed on the Plaintiff's financial affidavit and the Court canvassed the parties regarding the disposition of that asset.
Opening a judgment within four months is discretionary. See Brehm v. Brehm, 65 Conn.App. 698, 783 A.2d 1068 (2001), wherein the court held that the trial court did not abuse its discretion in denying the defendant's motion to open the dissolution judgment pursuant to General Statutes § 52-212a because the defendant, who did not appear at his dissolution hearing because of a mandatory work-related meeting, had sufficient time prior to trial to seek a continuance.
After four months, " absent waiver, consent or other submission to jurisdiction, a court lacks the power to modify or correct a judgment other than for clerical reasons . . . A judgment rendered may be opened after the four month limitation if it is shown that the judgment was obtained by fraud, in the absence of actual consent, or because of mutual mistake." (Citations omitted.) Hill v. Hill, 25 Conn.App. 452, 454-55, 594 A.2d 1041, cert. denied, 220 Conn. 917, 597 A.2d 333 (1991).
See also, Billington See also, Billington v. Billington, 220 Conn. 212, 595 A.2d 1377 (1991); Terry v. Terry, 102 Conn.App. 215, 222-30, 925 A.2d 375, cert. denied, 284 Conn. 911, 931 A.2d 934 (2007) (discussing fraud and mutual mistake); Wilkes v. Wilkes, 55 Conn.App. 313, 738 A.2d 758 (1999) (fraud not proven).
" [I]f the judgment conforms to the stipulation it cannot be altered or set aside without the consent of all the parties, unless it is shown that the stipulation was obtained by fraud, accident or mistake." (Internal quotation marks omitted.) Magowan v. Magowan, 73 Conn.App. 733, 737, 812 A.2d 30 (2002), cert. denied, 262 Conn. 934, 815 A.2d 134 (2003).
" To conclude that a stipulated judgment resulted from duress, the finder of fact must determine that the misconduct of one party induced the party seeking to avoid the stipulated judgment to manifest assent thereto, not as an exercise of that party's free will but because that party had no reasonable alternative in light of the circumstances as that party perceived them to be." Jenks v. Jenks, 232 Conn. 750, 753, 657 A.2d 1107 (1995) (duress finding upheld despite the dissolution court's canvass of defendant concerning the agreement).
CONCLUSION
The motion to open is denied. The Court cannot conclude, based on the evidence, that there was a mutual mistake. It appears from the record that notwithstanding the fact that the parties had entered into an agreement regarding the disposition of the real estate on June 29, 2016 (exhibit A), at the time of the judgment, the parties reached a different agreement which was knowingly and voluntarily entered into. That the parties might have entered into a different agreement if they had been represented by counsel cannot be a basis to open a judgment thereafter.