Opinion
No. FA05-4006617-S
June 26, 2009
MOTION TO OPEN THE EVIDENCE
This case originated in the judicial district of Stamford and was thereafter referred to the Regional Family Trial Docket for trial before this court. After a multi-week trial, which concluded with closing arguments in December of 2008, this court was considering the evidence and preparing its memorandum of decision, due June 15, 2009. During this time, after the trial, but before the decision had been released by the court, the defendant, William Mayer, brought a Motion to Open the Evidence, dated March 17, 2009 and Memorandum of Law in Support dated April 7, 2009. The plaintiff, Virginia Mayer, filed an Objection to the Motion to Open the Evidence dated March 31, 2009.
The parties offered evidence relative to these motions before the court on or about April 6, 2009 and April 29, 2009. The defendant presented evidence that many of his personal assets, including the marital home and antiques, have decreased in value substantially. The defendant alleges that there has been a change in his assets of more than $8 million dollars, or more than 50% of the defendant's alleged net worth. The defendant argues that the evidence in this case must be opened so that evidence of the decline in his estate may be presented. The plaintiff argues that the defendant provides no credible evidence that would satisfy the defendant's burden to allow the court to open the evidence. The court finds that the nature of the defendant's businesses, as well as his investments and holdings, have been and continue to be subject to fluctuation in value. The defendant's assets, his company holdings, bonds and oil holdings, all speculative in nature, may go up substantially, or they may go down substantially.
"Whether or not a trial court will permit further evidence to be offered after the close of testimony in the case is a matter resting within its discretion . . . In the ordinary situation where a trial court feels that, by inadvertence or mistake, there has been a failure to introduce available evidence upon a material issue in the case of such a nature that in its absence there is serious danger of a miscarriage of justice, it may properly permit that evidence to be introduced at any time before the case has been decided." (Emphasis added.) Pagliaro v. Jones, 75 Conn.App. 625, 817 A.2d 756 (2003) (denying motion to open the evidence was not abuse of discretion when party was attempting to offer W-2 income statement, but joint tax return was already in evidence).
The Appellate Court illuminated this standard stating, "[t]he court acted within its discretion in denying the plaintiff's motion to open the evidence. The record does not demonstrate that the information regarding the defendant's gross earnings for the year 2000 was made unavailable to the plaintiff by the defendant prior to trial or by its conclusion, nor does the record reveal whether the plaintiff had sought that information through pretrial discovery. Under those circumstances, we find no abuse of discretion by the court in refusing to open the evidence." Id. See also Fahey v. Safeco Ins. Co. of America, 49 Conn.App. 306, 317, 714 A.2d 686 (1998) ("Trial court did not abuse its discretion and acted within its authority in allowing the defendant to submit the insurance policy into evidence after receiving the jury's verdict"); Treglia v. Dan Perkins Chevrolet, Inc., Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 04 0085761 (April 5, 2006, Stevens, J.) (denial of motion to open the evidence of attorneys fees when party had opportunity to present evidence of past and future fees during trial).
The Appellate Court applied this standard in Wasson v. Wasson, 91 Conn.App. 149, 155-57, 881 A.2d 356 (2005). "The defendant sought permission from the court to reopen the evidence in order to present to the court evidence concerning [the] [p]laintiff's failure to make the mortgage payments or to inform the Court or the Defendant of the accumulated arrearage on the mortgage . . . There was no danger that a miscarriage of justice would result from the absence of further evidence concerning the plaintiff's failure to meet her monthly financial obligations and, specifically, the existence of the pending foreclosure action . . . We conclude that the court did not abuse its discretion in denying the defendant's motion to open the evidence prior to judgment to introduce evidence regarding the failure of the plaintiff to make mortgage payments. The court was well within its broad discretion in concluding that any such additional evidence would not have a significant impact on its decision." (Citations omitted.) Wasson v. Wasson, supra, 91 Conn.App. 155-57.
The defendant cites Weinstein v. Weinstein, 275 Conn. 671, 882 A.2d 53 (2005) as precedent that his motion should be granted. However, the present case is distinguished from Weinstein, as the husband in Weinstein failed to disclose specific information in regards to business dealings he had and offers to purchase his business. In this case, the defendant offers only additional evidence of the already known risk of his investments and the ever changing state of the market for his investments and assets generally. He provided no new or specific information regarding the value of his net estate. Had the defendant, as in Weinstein, offered specific evidence of an actual transaction that occurred post-closing of the evidence that was drastically less than the value stipulated to or presented at the original trial, then the present case would fall within Weinstein. If the defendant offered to the court that he recently sold the marital home or his antique collection for half of the value presented at trial, then the court may be persuaded the evidence must be opened to prevent a miscarriage of justice. However, this did not occur and this court does not see Weinstein as guiding precedent in the present case.
The court finds the defendant presented no evidence that his net estate was any more subject to risk and market conditions than had already been presented to the court during the trial. The defendant failed to show how his living situation had drastically changed. Despite his alleged loss of income, he continues to employ a nanny, boat captain and housekeeper at a cost of over $11,500 per month. He further testified that he continues to invest in oil in the amount of $2,000,000, which is similar to the amount he has withdrawn on his home equity line of credit. These expenses, and their failure to be reduced despite an alleged 50% drop in net assets lend little credibility to the defendant's position that it would be a miscarriage of justice not to open the evidence to establish the defendant's reduction in wealth.
Without making any determination as to the value of the assets or the defendant's net estate, the defendant offered no additional evidence that would lead this court to open the evidence in this case. The parties had over fifteen days of evidence in the original trial. At that time they presented evidence as to their sources of income and property in the marital estate, which included evidence on the varying values of assets at issue in the present motion. The defendant has not provided any evidence in the present hearing that leads this court to believe there will be a miscarriage of justice if the evidence is not opened and the parties are not able to present evidence as to the market conditions of the marital estate.
Considering all of the evidence presented at the hearing, this court does not find that the defendant, by inadvertance, mistake or otherwise, failed to introduce available evidence about the value of the marital or his personal estate at the time of trial. Further, the defendant did not satisfy its burden to show that if the court does not open the evidence there will be a miscarriage of justice. This court finds no reason to open the evidence. The defendant's motion to open the evidence is denied.