Opinion
No. FA 04 4000741 S
June 28, 2007
MEMORANDUM OF DECISION RE MOTION TO OPEN (NUMBER 119)
The defendant has moved to open and vacate the judgment of dissolution of marriage dated February 28, 2006. She alleges that the plaintiff failed to disclose to her that he was a beneficiary of the estate of his aunt, Clara I. Clapp. who died on December 31, 2005, leaving a bequest in her will to the plaintiff of $50,000, her father's roll-top desk and accompanying chair. She further alleges that the non-disclosure was based on fraud, mistake or misrepresentation.
In addition to the specific bequest the will provided that the residuary estate be divided to her surviving nieces and nephews (one of whom is the plaintiff).
Section 25-38 of the Practice Book provides that the provisions of §§ 17-4, 17-9 and 17-43 shall apply to family matters.
Section 17-4 provides that a judgment may not be opened unless a motion to do so is filed within four months of the judgment.
An exception of the general rule applies if it is shown that the judgment was obtained by fraud or because of mutual mistake. Hill v. Hill, 25 Conn.App. 452, 454-55 (1991).
The movant has the burden of proving fraud by clear and convincing evidence. Weinstein v. Weinstein, 275 Conn. 671, 673 (2005). The movant must prove (1) a false representation was made (2) the statement was untrue and known to be so by the maker (3) the statement was made with the intent of inducing reliance thereon and (4) the other party relied on the statement to her detriment. Weinstein, supra, p. 671.
In this case, on the issue of fraud, the evidence established that the dissolution action commenced on October 5, 2004; that Clara Clapp died on December 31, 2005; that Leslie Clapp was bequeathed $50,000, a desk and chair in Clara's will; that Leslie Clapp was also a residual beneficiary under the will.
The dissolution matter went to judgment on February 28, 2006 with a stipulated property settlement. Both parties were represented by counsel.
Leslie Clapp testified that he was not aware of the bequest to him and was surprised to learn of his inheritance when his sister, who was the executrix of the estate, told him of it on or about April 24, 2006. The will was admitted to Probate on April 24, 2006. Leslie Clapp is one of about twenty-nine residual beneficiaries (nieces and nephews) of the estate.
The defendant, Carolyn Clapp, did not refute any of Leslie Clapp's testimony. Essentially, the defendant asks the Court to infer fraud from the fact that Clara died prior to the divorce leaving $50,000 to the plaintiff.
The Court cannot find, clearly and convincingly, that the plaintiff was aware of the bequest in February 2006 or that his testimony is not credible.
The motion to open the judgment on the grounds of fraud must fail.
As to the issue of a mutual mistake, the kind of mistake that would justify the opening of a stipulated judgment must be mutual, a unilateral mistake is not sufficient. Magowan v. Magowan, 73 Conn.App. 733, 741 (2002). A mutual mistake is generally thought of as common to both parties and effects a result that neither intended. Mann Electric v. Kensington PL, 2006 Ct.Sup. 432, J.D. of New Haven at Meriden, Jan 9, 2006 (Frazzini, J.).
In the case of Pospisil v. Pospisil, 1999 Ct.Sup. 2649, J.D. of Tolland, Feb. 26, 1999 (Zarella, J.), the defendant argued as the basis of his mutual mistake claim that the parties failed to factor into their settlement negotiations the plaintiff's entitlement to social security benefits. In finding no mutual mistake, the Court stated "There is no mutual mistake involved in that. It was a very confusing quagmire of facts, one that was not known to either of the parties. I find no mutual mistake in existence." (Emphasis added.)
A mistake must be mutual . . . a clear mistake by one party, coupled with ignorance by the other party, is not a mutual mistake and will not be corrected. Kline v. Kline, 2006 Ct.Sup. 19620 J.D. of Danbury, Oct. 27, 2006 (Axelrod, J.).
In this case neither party was aware of the fact of the inheritance and unawareness, under our case law, is not the equivalent of mutual mistake and this claim must also fail.
Motion to open is denied.