Opinion
No. FA 00-0440636S
July 18, 2007
On July 27, 2005, the plaintiff filed the present motion to vacate the separation agreement incorporated into the judgment of dissolution on the grounds of fraud. After evidence commenced on this motion, she filed a motion seeking extensive discovery of various documents and records related to her claim of fraud. Pursuant to Oneglia v. Oneglia, 14 Conn.App. 26, 540 A.2d 713 (1988), the purpose of the evidentiary hearing then became to determine whether there was sufficient basis to open the judgment for the limited purpose of proceeding with discovery on the plaintiff's claim of fraud. The plaintiff has appeared pro se in this matter and the defendant through counsel. The Oneglia hearing in this matter occurred over 13 days between October of 2005 and May 2007. In addition to both parties, the court also heard testimony from Kenneth Silverman, the defendant's attorney during the dissolution proceeding; Edmund Calvin, an investigator retained by the plaintiff; and Rosemary Mascia, a friend of the plaintiff. The parties also introduced numerous exhibits. By agreement of the parties (and to avoid duplication of evidence previously offered) the court is also considering here the evidence offered previously to this court on the defendant's post-judgment motion for contempt (#186). For the reasons set forth below, the plaintiff's motion is denied.
The caption of the plaintiff's motion identifies itself as both a Motion for Contempt and a Motion to Vacate the Judgment. The text of the motion specifies that the plaintiff seeks a finding of contempt against the defendant and his attorney because of the defendant's having filed and pursued his motion for contempt number 168 "after they . . . committed fraud on plaintiff in the underlying divorce action and dissolution Agreement. Therefore, this court must find Defendant and his counsel in contempt for filing the meritless Motion for Contempt." ¶¶ 19-20, Pl.'s Motion for Contempt and to Vacate. As noted in both the original memorandum of decision and the decision issued today on the defendant's motion to reargue, the defendant had legitimate reasons for pursuing that earlier motion. There was suspicious circumstantial evidence suggesting that the pursuit of a deficiency judgment by a limited liability company owned by the plaintiff's sons from a previous marriage violated a provision of the separation agreement barring the plaintiff from attempting to collect a deficiency judgment against the defendant. This court denied the motion for contempt because the court found credible the plaintiff's testimony that her sons were acting independently from her. This court finds no basis for a finding of contempt in the defendant's having pursued that previous motion, and that aspect of her motion is thus denied.
To prevail in an Oneglia hearing, the plaintiff must substantiate the claim of fraud "beyond a mere suspicion." Id. The courts have described such a hearing as "a postjudgment probable cause hearing to determine whether any discovery, beyond the testimony of the parties, should be allowed in the future to substantiate the plaintiff's allegations of fraud." Nolan v. Nolan, 76 Conn.App. 583, 585, 821 A.2d 772 (2003). The probable cause standard has been described by our courts as "a modest one," 36 DeForest Ave. v. Creadore, 99 Conn.App. 690, 696 (2007), more than mere belief, suspicion or conjecture, Heussner v. Day, Berry Howard, LLP, 94 Conn.App. 569 (2006), but "not as demanding as proof by a fair preponderance of the evidence." Newtown Associates v. Northeast Structures, Inc., 15 Conn.App. 633, 636-37, 546 A.2d 310 (1988).
The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.
36 DeForest Ave. v. Creadore, supra, 99 Conn.App. 695.
Where probable cause is, as in an Oneglia hearing, a preliminary barrier that must be surmounted before further proceedings,
[t]he hearing . . . is not intended to be a full-scale trial on the merits . . . In reaching its determination of probable success on the merits it is essentially weighing probabilities . . .
Augeri v. C.F. Wooding Co., 173 Conn. 426, 428-30, 378 A.2d 538 (1977). In judging the probabilities, a court must weigh the evidence, assess the credibility and demeanor of the witnesses, and evaluate exhibits offered. Evidence is not to be accepted uncritically, presumed to be true, or, as would be true on a motion to dismiss or a motion for directed verdict at the conclusion of a plaintiff's case-in-chief in a full-blown trial, where every reasonable inference is drawn in the plaintiff's favor, Winn v. Posades, 281 Conn. 50, 54-55, 913 A.2d 407 (2007), construed in the light most favorable to the moving party. If the moving party prevails in such a hearing, the judgment is opened for the limited purpose of discovery, and the court later issues "an ultimate decision on the motion to open after discovery [has] been completed and another hearing held." Augeri v. C.F. Wooding Co., supra, 173 Conn. 428-30. If not, as in Nolan v. Nolan itself, the motion to open and vacate the judgment on grounds of fraud is denied.
"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." (Citations omitted; internal quotations marks omitted.) Id., 217-18. The law also recognizes fraud by omission under certain circumstances:
Fraud by nondisclosure expands on the first three of [the] four elements [and] involves the failure to make a full and fair disclosure of known facts connected with a matter about which a party has assumed to speak . . . To constitute [fraud by nondisclosure], there must be a failure to disclose known facts and, in addition thereto, a request or an occasion or a circumstance which imposes a duty to speak . . . The duty to disclose known facts is imposed on a party insofar as he voluntarily makes disclosure. A party who assumes to speak must make a full and fair disclosure as to the matters about which he assumes to speak.
(Citations omitted; emphasis in original; internal quotation marks omitted.) Statewide Grievance Committee v. Egbarin, 61 Conn.App. 445, 454-55, cert. denied, 255 Conn. 949 (2001). The party claiming fraud by nondisclosure must prove reasonable and detrimental reliance upon the misrepresentation. Creelman v. Ragowski, 152 Conn. 382, 385 207 A.2d 272 (1965). The party claiming fraud must also establish that (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 perjury or fraud; and (3) there must be a substantial likelihood that the result of the new trial will be different. Billington v. Billington, 220 Conn. 212, 218, 595 A.2d 1377 (1991).
Our Supreme Court has repeatedly emphasized the duty of a party in a dissolution to provide "full and frank disclosure" in the financial affidavit and that the opposing party is entitled to rely on the declarations made in the affidavit:
A court is entitled to rely upon the truth and accuracy of sworn statements required by . . . the [rules of practice], and a misrepresentation of assets and income is a serious and intolerable dereliction on the part of the affiant which goes to the very heart of the judicial proceeding . . . These sworn statements have great significance in domestic disputes in that they serve to facilitate the process and avoid the necessity of testimony in public by persons still married to each other regarding the circumstances of their formerly private existence . . . [T[he principle of full and frank disclosure . . . is essential to our strong policy that the private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine . . . That goal requires, in turn, that reasonable settlements have been knowingly agreed upon . . . Our support of that goal will be effective only if we instill confidence in marital litigants that we require, as a concomitant of the settlement process, such full and frank disclosure from both sides, for then they will be more willing to [forgo] their combat and to settle their dispute privately, secure in the knowledge that they have all the essential information . . . This principle will, in turn, decrease the need for extensive discovery, and will thereby help to preserve a greater measure of the often sorely tried marital assets for the support of all of the family members.
(Citations omitted; internal quotation marks omitted.) Id., 219-22. The plaintiff's motion claims that there were "fraudulent misrepresentations" on the defendant's financial affidavits, that the defendant's attorney made various fraudulent misrepresentations to her and at the July 28 pretrial, and that the defendant "hid his income and assets in a partnership and bigamous relationship" with Jennifer Ballard/Yona Levy." The claimed misrepresentations fall into three categories: about the defendant's liabilities, the sources of his income, and the amount of his income and assets. Any of these claims, if proven in conjunction with the other elements for a fraudulent misrepresentation or omission, could be the basis for opening the judgment of dissolution here.
I Claim of Fraudulent Misrepresentation about Defendant's Liabilities
The marriage of the parties was dissolved on July 30, 2003, after an uncontested hearing before Judge Gruendel. The plaintiff was present and appeared pro se. The defendant was not present, but his attorney, Henry Silverman, was. Two days earlier, the plaintiff and Silverman had also appeared before Judge Gruendel for an on-the-record pretrial. Transcripts of both proceedings were entered into evidence. Under the terms of the separation agreement incorporated into the judgment of dissolution, both parties waived alimony and the defendant agreed to pay the plaintiff a property settlement of $185,000 by August 13, 2003.
In mid-June 2003, several weeks before the dissolution hearing, the defendant's attorney provided the plaintiff with a copy of a financial affidavit signed by the defendant on June 5, 2003. The second page contained a section captioned "liabilities," under which there were columns labeled "Creditor," "Balance Due," "Date Debt Incurred," and Weekly Payment." In the creditor column, the defendant listed "IRS (See attached Schedule "A)," although no schedule A was actually attached. It listed no other liabilities. On the date of the dissolution, the defendant's attorney filed a financial affidavit with the court that was identical in many respects to the June 5 affidavit given previously to the plaintiff. The fourth page of both documents contained the defendant's signature and a certification from a Washington State notary public that it had been "Subscribed and sworn to before me on June 5th, 2003)." The only difference between the two was in the liabilities section on the second page, where the financial affidavit filed on July 30, 2003, listed the following:
CREDITOR BALANCE DUE DATE DEBT WEEKLY INCURRED PAYMENT IRS
KILM v. Spilke @$165,000Co-Op Fees to @33,000 University Towers
Thus, the second financial affidavit omitted reference to an attached Schedule A with regard to an IRS debt and listed two additional liabilities not on the first one. For the purposes of convenience here, the court will refer to these documents as "the original June 5 affidavit" and "the second June 5 affidavit."
At the hearing before this court, the defendant and his attorney both offered similar testimony about the differences between these two documents. The court finds that testimony credible, and makes the following findings of fact with regard to this issue. The original June 5 affidavit was prepared by the defendant's attorney from information provided by the defendant, then living in the State of Washington. The attorney sent the unsworn financial affidavit to the defendant, who went to a notary public, before whom he swore to its truthfulness. The defendant returned the sworn affidavit to his attorney, who then gave a copy of it to the plaintiff. Sometime later the defendant's attorney noticed that it omitted two potential liabilities: (i) a debt claimed in a mortgage foreclosure action then pending against both parties on a mortgage note for a loan that the defendant had taken in 1986 to purchase a condominium unit at the University Towers cooperative located at 100 York Street in New Haven, where the parties and their children lived until the defendant left them in the late 1980s and the defendant then lived until her subsequent eviction, and (ii) a debt claimed by the condominium association for unpaid co-op fees. The defendant's attorney called the defendant, informed him of the omissions, and obtained his permission to change the affidavit by inserting information regarding those two potential liabilities. The defendant's attorney made those changes, removed the reference to the missing "Schedule A," and filed the second June 5 affidavit with the court on the date of the dissolution hearing on July 30, 2003. The defendant's attorney never specifically informed the plaintiff that he was filing an affidavit containing changes to the original June 5 affidavit; and the second affidavit contains no indication that changes had been made in the document actually executed by defendant on June 5.
The plaintiff claims that the defendant and his attorney, by omitting the mortgage and co-op fee debts on the original June 5 financial affidavit given to her, fraudulently concealed those potential liabilities from her. The plaintiff testified that, if she had seen a listing of a liability of $175,000 for the mortgage on the financial affidavit, she would have purchased the mortgage and pursued that liability against the defendant. She said that when she saw no mortgage liability listed on the original June 5 affidavit she thought that the defendant might have resolved that liability. That testimony is not credible, however.
At the July 28 pretrial, Judge Gruendel asked the defendant's attorney "what are you proposing?" After describing some earlier negotiations with the plaintiff in which he had offered her "a payment of $150,000, non alimony," Silverman told Judge Gruendel, in the presence of the plaintiff, that:
In addition, there is the following issue. There is a foreclosure on a coop here in New Haven . . . The mortgage on that property has not been paid since . . . 1986 . . . It was a $55,000 mortgage and the balance on it now, if you add in everything, is probably around a hundred seventy, a hundred seventy-five thousand, in that general area . . . Part of the offer that I made was based on the fact that there is about $33,000 of $33,000 of unpaid coop fees . . . [The present holder of the mortgage] is willing to accept a buy out of the mortgage for $15,000. So when I made my offer of a hundred and fifty, the logic of it was one hundred period, plus the ownership of the condo.
The defendant's attorney then answered the following question from Judge Gruendel:
THE COURT: Okay. The mortgage has a balance of $170,000?
MR. SILVERMAN: He's willing to sell it for $15,000.
(Court exhibit one, transcript of pretrial proceedings, July 28, 2003, at 3-6.)
By the end of the July 28 pretrial, the defendant's attorney had fully disclosed to the court, in the plaintiff's presence, the mortgage balance of approximately $175,000, the mortgage holder's willingness to compromise that claim and accept the lesser amount of $15,000 to satisfy the mortgage debt, and the potential liability that the defendant might owe on the unpaid co-op fees. He had told the court that he had spoken with holder of the mortgage and had numerous conversations with the attorney for the co-op association seeking to buy the mortgage and co-op unit so that he could offer them to the plaintiff as inducements to settle the divorce. He had described his previous proposal to the plaintiff on the defendant's behalf as taking into consideration the mortgage and co-op fee liabilities. Although the plaintiff initially testified here that she was unaware that the mortgage had a potential liability of $175,000, she later admitted then knowing there was a mortgage liability of $170,000 being claimed by the holder of the mortgage. A party defendant in the mortgage foreclosure action, she already and independently knew about the mortgage debt, the willingness of the holder of the mortgage to to compromise the debt and sell it for $15,000, and the Condominium Association's claim. She had spent much of the spring and summer of 2003 negotiating to buy the mortgage; and on the day of the dissolution, her agent, attorney Herb Shepro, who had appeared for the plaintiff in the foreclosure proceeding on June 15, told the holder of the mortgage that she was ready to buy the mortgage for $15,000. There is no likelihood, therefore, that the plaintiff actually and reasonably relied on the omission of the amount of the claimed liability for the mortgage and co-op fees. Thus, her claim that she would have regarded a listing of the liability for $175,000 as an indication that the liability was actually worth that amount is not credible.
This court has previously found, in its decision denying the defendant's motion for contempt #168, that attorney Daniel Shepro filed an appearance for the plaintiff in the foreclosure action on June 18, 2003, and acted as her agent in attempting to purchase the mortgage. Under principles of collateral estoppel, those findings are applicable here. Although the plaintiff testified here that she did not authorize Shepro to represent her or file an appearance for her in the foreclosure proceeding, this court rejected those same claims from her in the earlier proceeding; and she is bound, under principles of collateral estoppel, by those previous findings. "Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment . . . Furthermore, [t]o invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding . . ." Rosenfield v. Rogin, Nassau, Caplan, Lassman Hirtle, 69 Conn.App. 151, 154-55 (2002). "An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered . . . If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta." (Citations omitted; internal quotation marks omitted.) Pitchell v. Williams, 55 Conn.App. 571, 577-78, 739 A.2d 726 (1999), cert. denied, 252 Conn. 925, 746 A.2d 789 (2000). Whether Shepro acted as plaintiff's counsel in the foreclosure proceeding and as her agent were issues fully and fairly litigated in that prior proceeding, actually decided in that proceeding, and was necessary to the court's resolution of the issues there. The identical issue, Shepro's relationship to the plaintiff, is again at issue here. Even were the court not to grant collateral estoppel status to the earlier finding, nothing in the evidence offered in this hearing causes this court to change its mind that attorney Shepro was the plaintiff's agent.
The plaintiff has certainly shown that, by omitting the mortgage and co-op fee debts, the original June 5 financial affidavit contained factual errors. Even though it may be presumed that parties in a dissolution intend their financial affidavits to be relied upon, however, the evidence here completely undermines her claim that she was "misled" by the omission of the mortgage liability and co-op fee debt on the original June 5 financial affidavit. The evidence firmly establishes that she was instead fully aware of the true state of affairs. In the recent case of Phillips v. Phillips, 101 Conn.App. 65 (2007), the Appellate Court upheld a trial court finding that there had been no misrepresentation fraudulently inducing the defendant to assume a certain mortgage. In finding no error, the court emphasized that a party claiming fraud cannot establish justifiable reliance on a claimed misrepresentation if the party did not believe that misrepresentation:
[The defendant] also testified that he did not believe his father when his father told him that the proceeds from the mortgage solely had been used to pay expenses of the business. If the defendant did not believe that the proceeds had been used solely for business expenses, then he would not have been justified in relying on such a representation, which he believed to be false, when agreeing to assume the mortgage payments.
Id., 73, 74. For the very same reason here, the plaintiff has not shown probable cause to establish the essential element of reasonable reliance on her claim that the defendant fraudulently misrepresented his liabilities, and her motion to open claiming fraud on this ground must be denied.
II Plaintiff's Claim that Defendant Misrepresented or Concealed Income and Assets
The plaintiff also claims that the defendant misrepresented the amount and sources of his income and assets on the June 5 financial affidavits. Both June 5 financial affidavits listed the defendant's only income as an estimated gross wage of $960 per week from employment, weekly deductions of $25 for exhibit expenses and $50 for printing, and an estimated net wage of $885 per week. Neither one listed any other income. Yet for several years the defendant received gifts from his mother of approximately $50,000 a year. The defendant's mother would deposit funds into a "Gruntal account" in both her name and that of the defendant, and he would make withdrawals from the account, which the defendant did not list as an asset on these financial affidavits. The plaintiff admitted at the hearing before this court that she already knew about the Gruntal account and the recurring gift.
The only assets listed on either of the June 5 financial affidavits were a 1987 motor vehicle that he claimed had equity of $2,000, personal property consisting of household furnishings, computers and printers, and cameras worth a total of $6,000.
At the hearing before this court, the plaintiff testified that, when she first saw the original June 5 affidavit listing gross weekly income of $960 per week from employment, she thought that maybe the defendant was now earning such income from his artistic endeavors and was no longer receiving the recurring gifts from his mother. At the June 28 pretrial before Judge Gruendel, however, the defendant's attorney said, in plaintiff's presence, that "the financial affidavit that I filed indicates that he basically has no income. He gets money from his mother, and it's about $900 a week, about $50,000 a year." The plaintiff acknowledged that, after hearing Silverman say this at the pretrial, she realized that the income listed on the financial affidavit as derived from earnings might in fact be the same income that Silverman mentioned at the pretrial as being contributed by his mother. As discussed above, moreover, she also testified that she did not trust what either Silverman or the defendant was representing about the defendant's financial affairs. Aware of the conflict between the defendant's representations on the June 5 financial affidavits and his attorney's statements at the pretrial, the plaintiff considered undertaking further discovery in order to attempt to ascertain the truth. She decided against doing so, however, because she was worried that prolonging the litigation might prompt Judge Gruendel to reconsider his decision denying the defendant's motion to dismiss. The evidence thus establishes that the plaintiff in no way relied on the inaccuracies on the defendant's affidavit or on his attorney's representations at the pretrial about the sources or amounts of the defendant's income in deciding to settle this case. However inaccurate those representations were, she has not shown probable cause that she relied upon them. Her own testimony is that she did not.
The plaintiff also claims that the defendant "hid his income and assets in a partnership and bigamous relationship' with Jennifer Ballard/Yona Levy." In the late 1980s the defendant left the plaintiff and their three children and moved to Israel, where he obtained a judgment annulling his marriage to the plaintiff. He also began an intimate relationship and participated in a civil marriage ceremony with Jennifer Ballard, a woman living and working in Israel and using the Hebrew name Yona Levy. While in Israel, the defendant worked as a photographer and artist and operated a greeting card business called Bezalel Levy Publishing. The business name was an amalgam of the Hebrew names that Ballard and he had adopted. Some of the artistic work it produced was a collaborative product of the two.
In the late 1990s the defendant and Ballard decided to return to the United States. He testified here that she was a teacher in Israel and had a pension there that she would lose if she returned to the United States with him. He further testified that to induce Ballard to return to the United States, because she was losing a secure job with seniority and a pension in Israel, he gave her all of his art inventory except for the negatives and digital copies of his photographs and agreed to let her start a business in the United States that would use the name Bezalel Levy, LLC. He also testified that his mother agreed to give Ballard a loan of $400,000, which Ballard used to purchase real property in Washington State, to renovate a building on the property that she opened in 2002 as the Stanwood Gallery, and to erect secondary buildings there for a kiln and pottery studio.
Since their return to the United States, the defendant and Ballard have continued to produce some collaborative art. Ballard Levy LLC has an internet web site that lists art for sale, some of which the defendant created by himself, some which Ballard made by herself, and some of which they produced collaboratively. Bezalel-Levy LLC has also exhibited art at the Stanwood Gallery, various Jewish Community Centers, and other locations. Ms. Ballard has received all the proceeds from the sales of art by Bezalel-Levy LLC.
The defendant did not list any artistic product as an asset on either of the June 5 financial affidavits. He acknowledged before this court that at the time of the dissolution he still owned the negatives and digital copies of the photographs he had given to Ballard. He also testified that he then had a one-half interest in approximately one hundred pieces of art, half still in digital format, that Ballard and he had collaboratively produced since 1999. He testified here that he did not list this art as an asset on the June 5 financial affidavits because he did not regard that work as having any value since he had never been successful in selling his art. He further testified that in retrospect he believes he should have listed these items and given them a value of between fifteen and twenty thousand dollars based on his hope for their future selling prices.
This evidence confirms the plaintiff's claim that the defendant failed to disclose assets derived from his relationship with Jennifer Ballard and would be sufficient to establish probable cause as to the first three elements of a fraud claim. As a matter of law, statements on financial affidavits filed in connection with a dissolution proceeding are made with the intent of inducing reliance by the other party. Yet here, as on her other claims, there was no evidence showing probable cause that the plaintiff in any way actually relied on statements about the defendant's income, assets, or liabilities from either the defendant or his attorney. On this issue, the evidence affirmatively shows, to the contrary, that she did not rely on those statements. The plaintiff testified that after the July 28 pretrial she had concluded that she could not believe anything that either the defendant or his attorney was representing as to his income and assets. She further testified that she considered abandoning all efforts to settle the case and instead pursuing the case to a contested resolution. She knew that were she to do so she would want to seek additional discovery from the defendant and possibly depose his mother. She was worried, however, that the defendant might declare bankruptcy and that the court might conclude that the Israeli annulment her husband had obtained was valid. She was also worried about the effect on one of the parties' sons if the case became a contested trial. Without any trust in or reliance whatsoever on the statements from the defense, she made a strategic decision to forego further investigation or trial and instead to settle the case. She entered into the separation agreement that the defendant's attorney proposed two days later, and the court that day heard an uncontested divorce proceeding.
Opening a judgment is a serious matter. The parties and the public have a legitimate interest in the finality of judgments so that the parties can move on with their lives and the courts can address other matters. "The law aims to invest judicial transactions with the utmost permanency consistent with justice . . . Public policy requires that a term be put to litigation and that judgments, as solemn records upon which valuable rights rest, should not lightly be disturbed or overthrown . . ." Lampson Lumber Co. v. Hoer, 139 Conn. 294, 297, 93 A.2d 143 (1952), quoting 1 Freeman, Judgments (5th Ed.) 305, pp. 602-03. Such an interest is overcome when it is shown that the judgment was procured by fraud. The law on fraud has long required, however, not just proof that material facts were misrepresented under circumstances where another person could be expected to rely on the misrepresentation. Such proof is critical to a claim of fraud, whether by misrepresentation or nondisclosure, but more is required. Actual and justifiable reliance by the other person must also be shown. The reason is that to open a judgment for fraud, the fraud must have affected the judgment. Unless a party reasonably relied on a misrepresentation or nondisclosure to its detriment, the fraud did not affect the judgment. Absent probable cause of such reliance in the present case, the judgment will not now be opened for the purpose of discovery or vacated for the purpose of a new trial. The plaintiff's motion is therefore denied.
The defendant has moved to reargue the decision denying his post-judgment motion for contempt #168. Essentially, he argues that I incorrectly found the plaintiff to be credible and cites what he claims are inconsistencies in her testimony and between her testimony and the other evidence. The motion to reargue is granted; and upon reargument and reconsideration the relief requested therein is denied.
The purpose of a motion for reargument is to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts. It also may be used to address alleged inconsistencies in the trial court's memorandum of decision as well as claims of law that the [movant] claimed were not addressed by the court.
(Quotation marks omitted; citations omitted.) Opoku v. Grant, 63 Conn.App. 686, 692-93, 778 A.2d 981 (2001). A motion for reargument provides the court with an opportunity to reconsider and change the original findings and orders if sufficient bases are established for doing so. See Wasson v. Wasson, 91 Conn.App. 149, 162, 881 A.2d 356, cert. denied, 276 Conn. 932, 890 A.2d 574 (2005) (Flynn, J., concurring, citing Hartney v. Hartney, 83 Conn.App. 553, 561, 850 A.2d 1098, cert. denied, 271 Conn. 920, 859 A.2d 578 (2004), where "court affirmatively responded to request for reargument and reconsideration, complaining defendant received what he requested, a reconsideration").
As an example of what the defendant claims to be contradictions between the plaintiff's testimony and other evidence, the defendant's motion asserts that the plaintiff denied "negotiating" with Keyes but that Keyes testified that he had "negotiated directly with" her. But the plaintiff admitted asking Keyes about the mortgage and expressing her potential interest in acquiring it; whether she categorized those discussions as negotiations does not affect my finding that she was accurately describing the substance of those discussions. As noted in the memorandum of decision, Keyes testified on two occasions about his last conversation with Shepro, and those two accounts could be considered to have some inconsistencies. It was obvious from Keyes' testimony that his principal concern had been to sell the mortgage and note; his testimony about the fine details of the transaction was understandably imprecise. Although the plaintiff said that she did not know that Shepro had spoken to Keyes about the mortgage, she acknowledged that she had retained Shepro to help her reacquire the right to live in the condo. I found her testimony here credible that after the judgment of dissolution she continued to hope that she would be able to live there once again, but remained worried that she would be unable to do so; that testimony is consistent with what she said at the judicial pretrial before Judge Gruendel two days before the dissolution, as recited in footnote three of the memorandum of decision. Thus Shepro sent Keyes a fax letter on August 21, 2003, that she wanted to defer her purchase of the mortgage and note "until we determine what the co-op's claim is. . . I will call to set up another appointment for closing as son as possible." (Def's Ex. F.) Shepro's letter is consistent with the plaintiff's testimony that "after the judgment was entered. . . I really only wanted to find out whether I had a chance of acquire [sic] or asserting my title to the apartment that is all." (Trans., 12-9-04, at 26.) When she thereafter "found out that. . . it was confirmed by Mr. Shepro that I couldn't have it I lost interest. . ." in purchasing the mortgage and note. Ms. Spilke testified that thereafter her son called her, inquired about the apartment, where her sons from the previous marriage had once themselves lived, and expressed his belief that he could make money by buying the mortgage and note and holding them until they could be sold for a profit. Her son's optimism about the prospective value of the mortgage proved accurate; barely a year after purchasing the mortgage and note, the LLC owned by the plaintiff's sons sold their interest in the condominium for $75,000.
Nothing in the judgment of dissolution prevented the plaintiff from purchasing the mortgage and note; the insertion of paragraph 19 into the separation agreement, prohibiting her from pursuing a deficiency judgment if she purchased the mortgage and note, shows that it was contemplated, at the time of the dissolution, that she might purchase the mortgage. The critical issue, for purpose of resolving the defendant's motion for contempt, is whether the sons' pursuit of a deficiency judgment against the defendant can be attributed to the plaintiff. The evidence was clear that Attorney Shepro acted as the plaintiff's agent in talking with Keyes about purchasing the mortgage and note and that in late August Shepro substituted the LLC owed by the plaintiff's sons for the plaintiff as the purchaser of the mortgage and note. Shepro then filed an appearance for the LLC in the foreclosure proceeding and sought a deficiency judgment against the defendant. The original decision on the motion for contempt stated that "defendant has not proven that J. Diamond Properties, LLC, was or is acting as the plaintiff's agent, alter ego, or surrogate in purchasing the mortgage and note from KILM and in pursuing the deficiency judgment against the defendant. . ." While my review and reconsideration of the evidence has not caused me to alter that conclusion, I do believe I should add that the evidence does support a finding that the plaintiff acquiesced in and agreed to let her sons substitute themselves as purchasers of the mortgage and note. But I do not find it proven that the plaintiff participated in, directed, influenced, or controlled their decision to pursue a deficiency judgment against defendant.
Paragraph 18 of the separation agreement provides that all provisions of the decree "shall apply to, bind and be obligatory upon the heirs, and assigns of the. . . Wife. . ." It would not be enough to hold Ms. Spilke in contempt, however, merely if her sons had acquired the note and were pursuing a deficiency judgment. Although defendant's motion for contempt recites the terms of paragraph 18, the defendant did not pursue a theory of strict liability here that plaintiff should be held in contempt merely because two of her "heirs" pursued a deficiency action against him. Instead, at the hearing and in its brief defendant proceeded on an agency theory — that the LLC owned by the plaintiff's sons was acting for and on her behalf. Although the term "assigns" used in paragraph 18 is commonly added as surplusage to the word "heirs" in deeds conveying a fee simple, the word also refers to assignees of a contract as those "to whom property rights or powers are transferred by another." Black's Law Dictionary, 8th ed. (2004), at 127. That is the sense in which defendant claims paragraph 18 was violated here. Paragraph 19 of the separation agreement contemplated that Ms. Spilke might purchase the mortgage note and even pursue a foreclosure thereon, and for her sons merely to do that would not violate the provisions of that agreement, whether they acted by themselves or in concert with her. It is the attempt to collect a deficiency judgment that is prohibited Ms. Spilke; the LLC's pursuit of such, if acting for or with her or as her agent, would violate the provisions of the dissolution judgment.
The defendant here relied on circumstantial evidence, which, as the original memorandum of decision noted, can be satisfactory proof. Yet circumstantial evidence, by its very nature, is usually not conclusive proof. In this case, juxtaposed against the circumstantial evidence was the plaintiff's own testimony, which I found to be believable in many respects, despite some areas where I did not accept what she said. Despite circumstantial evidence favoring his defendant's claims, I found that the plaintiff was credible and truthful on the key issue when she testified that her sons acted independently from her in pursuing the deficiency judgment. Such an assessment of the credibility of the witnesses and the weighing of the competing evidence is the quintessential function assigned to the trier of fact. "It is the trier's exclusive province to weigh the conflicting evidence and determine the credibility of witnesses. . . The trier of fact may accept or reject the testimony of any witness. . . The trier can, as well, decide what — all, none, or some — of a witness' testimony to accept of reject." (Citations omitted.) State v. Martin, 38 Conn.App. 731, 744, 663 A.2d 1078 (1995), cert. denied, 237 Conn. 921, 676 A.2d 1376 (1996). In view of my finding the plaintiff credible, I continue to conclude that defendant did not sustain his burden of showing her to have violated the court order against pursuing the deficiency judgment.
Thus, upon reconsideration of the evidence after reargument, the defendant's request to change the prior decision is denied.