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Malarney v. Malarney

Connecticut Superior Court Judicial District of New Haven at Meriden
May 29, 2008
2008 Ct. Sup. 9017 (Conn. Super. Ct. 2008)

Opinion

No. FA06 4006029-S

May 29, 2008


MEMORANDUM OF DECISION RE MOTION TO OPEN AND VACATE JUDGMENT


A hearing was held on May 13, 2008, on the defendant's (wife) motion to open and vacate a default judgment entered against her on July 25, 2007, for failure to appear, alleging a fraudulent misrepresentation. (Petroni, J.). The motion was filed with the court on October 9, 2007, well within the four-month period as required by Sec. 17-4 of the Connecticut Practice Book.

The plaintiff (husband) and the defendant were the only witnesses to testify at this hearing and both were represented by capable counsel. The defendant who has lived in Jupiter, Florida for the past thirteen years testified she did not receive actual notice and failed to appear. She did file an appearance, but listed her Florida attorney's post office box in Boca Raton, Florida. The court believed and accepted her testimony.

The court had also granted the plaintiff's attorney three continuances because he and the Florida attorney were trying to reach a settlement of this case. However, they were unsuccessful.

At the May 13, 2008 hearing, the attorney for the defendant introduced an affidavit and a letter from her Florida attorney dated April 7, 2007, to the plaintiff's attorney outlining the defendant's $400,000 settlement offer. The plaintiff's attorney never responded to this offer. (Defendant's Exhibit F.)

The primary issue in this case involves the values of four parcels of real estate, two solely owned by the plaintiff in Branford, Connecticut, and two solely owned by the defendant in Jupiter, Florida. On July 25, 2007, when the default judgment was entered, the plaintiff filed a sworn financial affidavit, and in his testimony, declared the value of his real estate for 17 Hemingway Street to be $443,000, a mortgage of $268,000, for a net equity of $175,000. He declared the value of his 92 Pine Orchard property at $220,000, a mortgage of $184,000, for a net equity of $36,000. He also listed a checking account of $1,500, two motor vehicles for $1,500 and $7,000, respectively, for a total value of all assets of $221,000. The plaintiff's attorney obtained oral stated values of $443,000 and $220,000 from the Branford Assessors Office and divided by seventy percent.

He obtained the values of the defendant's two Jupiter, Florida properties, from a computer eppraisal.com website. His values for 116 Newcastle Drive was between $296,583 and $401,259, for a net value of $349,000, and for the 126 Terrace property in North Jupiter, the value was $386,000, minus the mortgage. His total net values of the two Florida properties totaled $80,000. After hearing the plaintiff's testimony and the acceptance of his sworn financial affidavit, the court entered a default judgment against the defendant on July 25, 2007. The court further ordered the parties to retain their respective parcels of real estate, free and clear of any interest to the other.

On August 28, 2007, approximately one month after the default judgment was entered. The defendant's attorney obtained the value from eppraisal.com of the 17 Hemingway Street property was between $727,273 and $1,291,986, about twice the value of $443,000, claimed by the plaintiff and his attorney.

Our cases have emphasized the need for frank disclosure on sworn financial affidavits. "A court is entitled to rely upon the truth and accuracy of sworn statements required by Section 25-30 of the Practice Book, 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 proceedings." Billington v. Billington, 220 Conn. 212, 219-22 (1991). Casanova v. Casanova, 166 Conn. 304, 305 (1974).

The court finds the plaintiff has misrepresented to the court the value of the 17 Hemingway property to be $443,000, basing it on the assessed value of this property rather than the current market value.

In Kinderman v. Kinderman, 19 Conn.App. 534, 538 (1989), the court reopened the judgment and ordered a new hearing and stated, "[w]e have no trouble concluding that the $132,000 difference in valuation [of the marital residence] in this case is sizeable." In Cuneo v. Cuneo, 12 Conn.App. 702, 710 (1987), the court held that the increase of value of the martial residence from $40,000 to $60,000 was a sizeable difference and set aside the judgment and remanded it for a new hearing. In Jackson v. Jackson, 2 Conn.App. at 195 (1984), the court held "[c]onsidering all of the statutory criteria for distribution of assets and for alimony in a dissolution action . . . we conclude that it is highly likely that a new trial, with all of the cards on the table, will produce a different result." A motion to open and vacate a judgment in a civil case is within the power of the trial court and should be granted when the court, acting reasonably, finds good cause to do so. Ragin v. Lee, 78 Conn.App. 848, 864 (2003).

On August 28, 2007, approximately one month after the default judgment was entered, the defendant's attorney obtained the value from eppraisal.com of the 17 Hemingway Street property. It was between $727,273 and $1,291,986, about twice the value of $443,000, claimed by the plaintiff and his attorney.

The defendant has proved by clear and convincing evidence that the plaintiff's value of $443,000 on his 17 Hemingway Street property and the $220,000 for his 92 Pine Orchard property in Branford, shown on his sworn financial affidavit to be worth $443,000 and $220,000 respectively, and confirmed in his testimony at the July 25, 2007 heating, was either a misrepresentation of fact or a mistake, and there is a substantial likelihood that a new trial would produce a different result.

The court also finds the plaintiff's estimated values of the two parcels of Florida real estate were obtained from an eppraisal.com computer website and the values obtained from the Branford assessor records are unreliable.

For the above reasons, the defendant's motion to open and vacate the default judgment, is granted and a new hearing is ordered.

The court further orders the parties to have prepared written appraisals for the four properties described in this decision. The plaintiff shall have the two Branford properties and the defendant the two Jupiter properties appraised by a state licensed appraiser from their respective areas. The parties shall exchange said appraisals and file them with the court within ninety days from this date.


Summaries of

Malarney v. Malarney

Connecticut Superior Court Judicial District of New Haven at Meriden
May 29, 2008
2008 Ct. Sup. 9017 (Conn. Super. Ct. 2008)
Case details for

Malarney v. Malarney

Case Details

Full title:KEVIN MALARNY v. KAREN MALARNEY

Court:Connecticut Superior Court Judicial District of New Haven at Meriden

Date published: May 29, 2008

Citations

2008 Ct. Sup. 9017 (Conn. Super. Ct. 2008)