Opinion
No. FA044000946S
December 10, 2008.
CORRECTED MEMORANDUM OF DECISION PLAINTIFF'S MOTION TO REOPEN CASE HISTORY.
This case was tried before the Regional Family Trial Docket on a referral from the Stamford Superior Court on July 24th, 27th, 31st and August 2nd, 2007. At the trial, the plaintiff, defendant and other witnesses testified and over 100 exhibits were introduced. On August 7, 2007, the court issued its Memorandum of Decision dissolving the marriage and entering orders regarding custody, visitation, support and the division of property. The court found that the equity in the former marital residence was between approximately $224,074 and $300,000. During the trial of the matter, no appraisals were submitted by either party to the court. Subsequent to the trial, the defendant retained the services of an appraiser to comply with the court order to refinance the mortgage on the former family home. The defendant's appraiser determined the fair market value of the former marital residence to be $825,000. It was at this point that defendant discovered there was one hundred forty-nine thousand seventy-four dollars and forty-four cents ($149,074.44) in total equity in the marital residence. On November 14, 2007, the defendant moved to open, postjudgment the dissolution decree. The parties agree to the timeliness of the motion. On May 16, 2008, the court heard oral argument as to the plaintiff's motion to open postjudgment. The court requested the parties submit briefs in support of their positions. The plaintiff filed his Memorandum of Law on June 11, 2008 and defendant filed her Memorandum of Law on or about May 30, 2008.
ISSUE
Whether the defendant's motion to open postjudgment should be granted to allow the defendant to submit evidence of the appraisal that was performed on the former marital residence?
LEGAL STANDARD
The grounds on which to open a timely motion to open include: to vacate any judgment obtained by (1) fraud, (2) duress, (3) mutual mistake or (4) when there exists a compelling reason to do so. In re Baby Girl B., 224 Conn. 263, 283, 618 A.2d 1 (1992); OCWEN Federal Bank v. Busby, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 98 0166790 (January 26, 2001, Hickey, J.), citing Steve Vigilone Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 710-11, 462 A.2d 1037, 1040 (1983).
FRAUD
"Fraud is defined as [d]eceit, deception, artifice, or trickery operating prejudicially on the rights of another, and so intended, by inducing him to part with property or surrender some legal right . . . Anything calculated to deceive another to his prejudice and accomplishing the purpose, whether it be an act, a word, silence, the suppression of the truth, or other device contrary to the plain rules of common honesty." (Internal quotation marks omitted.) Nelson v. Charlesworth, 82 Conn.App. 710, 714, 846 A.2d 923 (2004). "The four essential elements of fraud are (1) that a false representation of fact was made; (2) that the party making the representation knew it to be false; (3) that the representation was made to induce action by the other party; and (4) that the other party did so act to her detriment." (Internal quotation marks omitted.) Whitaker v. Taylor, 99 Conn.App. 719, 730, 916 A.2d 834 (2007).
DURESS
"For a party to demonstrate duress, it must prove [1] a wrongful act or threat [2] that left the victim no reasonable alternative, and [3] to which the victim in fact acceded, and that [4] the resulting transaction was unfair to the victim . . . The wrongful conduct at issue could take virtually any form, but must induce a fearful state of mind in the other party, which makes it impossible for [the party] to exercise his own free will." (Citation omitted; internal quotation marks omitted.) Noble v. White, 66 Conn.App. 54, 59, 783 A.2d 1145 (2001).
MUTUAL MISTAKE
The Connecticut Supreme Court has defined a mutual mistake as "one that is common to both parties and effects a result that neither intended." (Internal quotation marks omitted.) Inland Wetlands Watercourses Agency v. Landmark Investment Group, Inc., 218 Conn. 703, 708, 590 A.2d 968 (1991); see also Regis v. Connecticut Real Estate Investors Balanced Fund, Inc., 28 Conn.App. 760, 765, 613 A.2d 321, cert. denied, CT Page 19632 224 Conn. 907, 615 A.2d 1048 (1992). A mutual mistake is when "both parties are mistaken about the same material fact." Terry v. Terry, 102 Conn.App. 215, 229, 925 A.2d 375, cert. denied, 284 Conn. 911, 931 A.2d 934 (2007). "A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Doody v. Doody, 99 Conn.App. 512, 517, 914 A.2d 1058 (2007). "[A] unilateral mistake will not be sufficient to [restore the cases to the docket]." (Internal quotation marks omitted.) Id., 740.
COMPELLING REASON
"Although a specific list of what must be established by a moving party in order to open a judgment has not been defined, the Supreme Court has said that `a motion to open judgment ought to be granted when there appears cause for which the court acting reasonably would feel bound in duty to do so.'" OCWEN Federal Bank v. Busby, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 98 0166790 (January 26, 2001, Hickey, J.), citing Steve Vigilone Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 710-11, 462 A.2d 1037, 1040 (1983). The court must keep in mind, however, "[i]f a party, upon the filing of a decision unfavorable to him on an issue which has been litigated at the trial, has a right to have the judgment opened to enable him to offer further testimony upon that issue, which might equally well have been offered at the trial, litigation would be prolonged beyond the requirements of a sound public policy." Id.
ANALYSIS:
The facts of the present case are most applicable to the grounds of mutual mistake or whether there exists a compelling reason to open the judgment. The Appellate Court has not allowed the opening of a dissolution judgment based on mutual mistake (or fraud) for the misstatement of the value of a marital home when neither party obtained an independent appraisal or submitted discovery requests during the course of litigation. Billington v. Billington, 23 Conn.App. 45, 578 A.2d 674, cert. granted, 216 Conn. 827, 582 A.2d 205 (1990), rev'd, 220 Conn. 212, 595 A.2d 1377 (1991). The court reasoned that "the parties are . . . obligated to take reasonable steps to protect their interests, and, where such measures are not taken, the judgment may not ordinarily be opened." Id. See also Barnett v. Barnett, 26 Conn.App. 355, 600 A.2d 1055 (1992) (denying motion to open on grounds of mutual mistake of equity in marital home); compare Blodgett v. Blodgett, Superior Court, judicial district of Tolland, Docket No. FA020077522S (August 5, 2003, Klasczak, J.T.R.) (holding five-year-old appraisal and opinion on fair market value of marital home insufficient evidence for establishing fair market value in dissolution judgment).
On the grounds of whether there exists a compelling reason to open the judgment, the Appellate Court has upheld a denial of a motion to open based on newly discovered evidence when "[t]he evidence offered . . . was just as much within the power of the defendant to produce before judgment as after." Damico v. Dalton, 1 Conn.App. 186, 187-88, 469 A.2d 795 (1984). It is within the court's discretion, however, to grant the motion to open if it believes that a great injustice will occur if the judgment is not opened. "In determining whether the trial court abused its discretion, the appellate court must make every reasonable presumption in favor of its action. The manner in which this discretion is exercised should not be disturbed so long as the court could reasonably conclude as it did." (Citations omitted; internal quotation marks omitted.) Martin v. Martin, 99 Conn.App. 145, 157, 913 A.2d 451 (2007).
In the case before the court, the defendant has failed to claim she has evidence of the value of the home as of the date of trial or the date of dissolution but offers evidence of the value several months later when she attempted to refinance the property. Due to the rapidly changing real estate market in the state, the value of the home several months postjudgment is irrelevant to the court's decision. The court is required to value the assets of the marriage as of the date of dissolution. In addition, the court would note that the defendant filed a motion for counsel fees pendente lite which was granted by the court. Having secured funds for her own representation, defendant could have filed an additional motion to secure funds for an appraisal, which she failed to do.
CONCLUSION
The defendant's motion to open is denied. The courts have held that the ground of mutual mistake is not applicable when the parties have failed to take steps to protect their interest, such as obtaining a home appraisal, during the course of litigation. Connecticut courts have been hesitant to open a judgment based upon newly submitted evidence that was available during the course of litigation on the compelling reason basis for reopening the judgment.