Opinion
No. KNO FA 09-4112282
June 30, 2011
A review of the record reveals that the parties were divorced, following a limited contested trial on October 28, 2010. Thereafter, the defendant filed an appeal, a motion to clarify or reargue and the plaintiff filed a motion for contempt. The parties appeared, together with counsel, relative to the pending motions. The court will address the motion to open judgment first as it consumed the lion's share of the court hearing.
The Practice Book makes applicable to family matters, the civil rules for opening and vacating judgments. See Practice Book §§ 17-4, 17-9 and 17-43. Opening a judgment within four months is discretionary. See Brehm v. Brehm, 65 Conn.App. 698 (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 § 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.
A judgment based on fraud may be vacated at any time. Billington v. Billington, 220 Conn. 212, 218 (1991).
A party seeking to have a dissolution judgment vacated due to fraud must show:
1. there was no laches or unreasonable delay after the fraud was discovered;
2. clear proof of the perjury or fraud; and
3. a substantial likelihood that a new trial will reach a different result.
Billington v. Billington, supra, 220 Conn. 218; see also Terry v. Terry, 102 Conn.App. 215, 222-30, cert. denied, 284 Conn. 911 (2007) (discussing fraud and mutual mistake); Wilkes v. Wilkes, 55 Conn.App. 313 (1999) (fraud not proven).
As the court held in Weinstein v. Weinstein, 275 Conn. 671 (2005):
Fraud consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed . . . The elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment . . . A marital judgment based upon a stipulation may be opened if the stipulation, and thus the judgment, was obtained by fraud . . . A court's determinations as to the elements of fraud are findings of fact that we will not disturb unless they are clearly erroneous. There are three limitations on a court's ability to grant relief from a dissolution judgment secured by fraud: (1) there must have been no laches or unreasonable delay by the injured party after the fraud was discovered; (2) there must be clear proof of the fraud; and (3) there is a substantial likelihood that the result of the new trial will be different. Id. 685.
The burden is on the movant to prove by clear and convincing evidence that the other party knowingly misrepresented material facts. The court in Greger v. Greger, 22 Conn.App. 596 (1990), found that the husband had committed fraud when he had represented on his financial affidavit that his closely held insurance business had no value although he knew at the time the affidavit was filed exactly how much the business was worth.
The court in Terry v. Terry, 102 Conn.App. 215 (2007), confronted a similar problem wherein the value of the plaintiff's lawsuit was at issue. Both parties were aware of the pending lawsuit but the plaintiff failed to disclose her lawsuit on her financial affidavit because she believed that the lawsuit had little or no value. After the dissolution, the events unfolded and it turned out that the lawsuit had great value, unbeknownst to either party. "Neither party was clairvoyant, and thus neither knew what the final outcome of the lawsuit would be. The ultimate value of the lawsuit was unknown at the time of dissolution." Id. at 229.
The circumstances in the instant case are similar. The husband argues that the wife deceived him and the court when she testified that she had exhausted her savings on home improvements when that was not the case (claim 1, 5). In fact, the wife had introduced into evidence all of her bank statements which showed that, in fact, she had approximately $40,000 remaining after the home improvements had been made (Exhibit 16). Thus, the evidence was available for use during cross-examination at the trial. He failed or neglected to take advantage of that opportunity. Moreover, the court did not rely on the wife's oral assertion and thus, the result would not have been different, one of the three prongs the moving party to a motion to open must prove.
The husband also claims that the wife's testimony that she paid all of the household bills during the construction was false (claim 2, 8). Not only did the husband fail to prove that this was untrue but, once again, this fact was not pivotal in the court's determination.
The husband makes a number of other claims for opening the judgment which again were minor or of little consequence (3, 4, 7). Claim #6 goes only to an alleged assertion of plaintiff's counsel.
For the foregoing reasons, the motion to open is denied.
Regarding the request for counsel fees in defending the motion to open and to defend the appeal, the court is conflicted. The court finds no basis for the appeal. The husband left the marriage with $25,000 of assets plus 82.5% of his pension which the plaintiff's expert testified to be worth $661,000 while the wife left the marriage with the home ($169,000 of equity) plus $67,000 of assets ($26,400 of which is a retirement fund) and only 17.5% of that pension. Thus, the husband received the lion's share of the marital estate. Likewise, there was no basis for the motion to open. The husband has few liquid assets with which to pay counsel fees but the wife's cash position is similar. Nonetheless, it is the husband who is pursuing the appeal.
The Supreme Court and the Appellate Court have recently addressed this issue.
In Misthopoulos v. Misthopoulos, 297 Conn. 358 (2010), the Court held that the trial court did not abuse its discretion in awarding the plaintiff attorneys fees and the court could not conclude that the plaintiff had ample liquid funds to pay her attorneys fees. Moreover, the record supported a finding that the order requiring the defendant to pay a portion of the plaintiff's attorneys fees was necessary so as not to undermine the trial court's other financial orders.
In Taylor v. Taylor, 119 Conn.App. 817 (2010), the court ruled that the wife could not afford to pay the attorneys fees necessary to defend the husband's appeals.
Under the circumstances, it is fair and appropriate that the defendant pay to the plaintiff $500 to defend the motion to open and $2,500 to defend the appeal within 30 days.
The court is without sufficient evidence to conclude whether the motion to correct should be granted. It is therefore denied.