Opinion
NNHFA134058888S
02-09-2016
Kevin Neal v. Heidi Neal
UNPUBLISHED OPINION
MEMORANDUM OF DECISION REGARDING DEFENDANT'S MOTION TO OPEN JUDGMENT (104), AND PLAINTIFF'S MOTION FOR CONTEMPT (103)
Kenneth L. Shluger, J.
A review of the record reveals that the parties were divorced, pursuant to a legal separation agreement dated March 18, 2014. At the time of the dissolution, neither party was represented by counsel.
The plaintiff has filed a motion for contempt alleging that the defendant failed to pay to him the sum of $1,000 per month as her share of the mortgage in violation of the terms of the judgment.
The defendant has filed a motion to open the judgment alleging that it was entered into " . . . based on fraudulent facts stated or omitted in the plaintiff husband's affidavit. He never disclosed his intent to sue for damages as a result of the [motor vehicle] accident even though he knew that he would file."
The parties appeared before the undersigned on January 20, 2016 for an evidentiary hearing and both parties were represented by counsel.
The court finds proven, by clear and convincing evidence the following facts:
1. The parties were divorced, pursuant to a legal separation agreement dated March 18, 2014. At the time of the dissolution, neither party was represented by counsel.
2. Under the terms of the agreement, the parties agreed that they would continue to co-own the former marital residence located in Hamden, Connecticut.
3. The judgment specifically stated, " [t]he defendant shall continue to reside in the residence for up to two years from the date of judgment. During said two years, the defendant shall pay $1,000 toward the mortgages on the property. The plaintiff shall pay the remaining $470.39 for these two years."
4. It is uncontroverted that the defendant continued to reside in the former marital residence for some time after the dissolution, but made only one payment of $350 in June 2014.
5. The plaintiff immediately vacated the former marital residence. Thereafter, the defendant claims that she moved out of the former marital residence in August 2014. The plaintiff claims that the defendant moved out of the former marital residence in August 2015. In either event, she did not pay the mortgage as ordered.
6. The defendant's claim of fraud is that the plaintiff husband had been involved in a motor vehicle accident during the marriage and that he " never disclosed his intent to sue for damages as a result of the accident even though he knew that he would file."
7. In fact, the plaintiff did sustain a serious motor vehicle accident on October 20, 2012. He had a loss of consciousness, broken bones and was confined to the intensive care unit of a hospital. The wife visited him in the hospital and was aware of the severity of his injuries.
8. The testimony was conflicting as to whether or not the parties actually spoke about the potential automobile accident cause of action at the time of the dissolution. The husband testified credibly that they discussed the cause of action at the time of the dissolution and that the wife indicated that she would assert no claim against the proceeds; she denied that the conversation ever took place.
9. The personal injury lawsuit was filed on or about March 25, 2014, one week after the date of dissolution. The plaintiff claims that the injury case was filed by his personal injury attorney at the time that he had reached his maximum medical improvement and was not timed to coincide with the date of dissolution. The defendant argues that it is not credible that it was just a coincidence that the lawsuit would be filed just one week after the date of dissolution.
10. At the time of dissolution, the plaintiff did not list on his financial affidavit his potential claim for personal injuries because he did not believe that it was then an asset but rather, that it was simply a claim that he would be bringing in the future. He also testified credibly that there was no place on the financial affidavit for him to list a potential lawsuit. At the time of dissolution, the lawsuit had not yet been filed and it was only a potential claim for personal injuries. At the present time, the lawsuit is only a potential claim for personal injuries; it has not been settled or tried. The value of the asset was unknown then and it is unknown now.
LEGAL DISCUSSION
CONTEMIPT
Civil contempt in family matters is governed by practice book section 25-27.
" Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense." In re Leah S., 284 Conn. 685, 692, 935 A.2d 1021 (2007). The movant has the burden of proof to show . . . the existence of a court order and noncompliance with that order. Issler v. Issler, 50 Conn.App. 58, 66-69, 716 A.2d 938 (1998). " Noncompliance alone will not support a judgment of contempt." Prial v. Prial, 67 Conn.App. 7, 787 A.2d 50 (2001). Moreover, " a court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was willful." Wilson v. Wilson, 38 Conn.App. 263, 275-76, 661 A.2d 621 (1995).
In any contempt, the underlying court order must have been sufficiently clear and unambiguous so as to support a judgment of contempt. The court must find that there was a violation of said order and that the violation was willful. Finally, the court must find that the willful violation of the clear and unambiguous order was not excused by a good-faith dispute or misunderstanding. In re Leah S., 284 Conn. 685, 693-94, 935 A.2d 1021 (2007).
On the other hand, " [t]he inability of [a party] to obey an order of the court, without fault on his own part is a good defense to a charge of contempt." Tobey v. Tobey, 165 Conn. 742, 746, 345 A.2d 21 (1974). The burden is on the alleged contemnor to prove inability to comply. Perry v. Perry, 222 Conn. 799, 805, 611 A.2d 400 (1992). The defendant in this case offered no such proof.
As the court in Norberg-Hurlburt v. Hurlburt, 162 Conn.App. 661 (2016), recently held " Although it was the defendant's burden to demonstrate that the plaintiff was not in compliance with the court's orders, which he did, it was the plaintiff's burden to demonstrate that her noncompliance was not willful. " In a civil contempt proceeding, the movant has the burden of establishing . . . the existence of a court order and noncompliance with that order . . . [I]nability to pay is a defense to a contempt motion. However, the burden of proving inability to pay rests upon the obligor." (Citation omitted; internal quotation marks omitted.) Marshall v. Marshall, 151 Conn.App. 638, 651, 97 A.3d 1 (2014)."
In this instance, the defendant did not prove that she was unable to comply. She was gainfully employed at the time of dissolution and failed to pay even the first monthly payment due 14 days after the judgment.
Given these facts, the contempt issue is rather simple. There exists a clear and understandable order that the defendant would continue to reside in the marital residence, pay $1,000 towards the mortgage and do this for two years. This is akin to paying rent except that it was her own mortgage which she was partially paying. Her financial affidavit indicates that she had a gross weekly income of $783 and a net weekly income of $613 per week. The evidence is uncontroverted that the defendant was in default or breach of this agreement within 14 days; she did not even pay the first payment. The court finds that the defendant's failure to pay even one complete payment was willful and that there was no reasonable excuse or justification.
MOTION TO OPEN
A motion to open a judgment predicated on fraud must be proven by clear and convincing evidence. The facts involved in Terry v. Terry, 102 Conn.App. 215, 925 A.2d 375 (2007), are similar to those in this case in many ways. In that case, the defendant claimed that the plaintiff had not listed a lawsuit on her financial affidavit even though the defendant was aware of the claim. In Terry, supra, the Appellate Court upheld the trial court in denying the motion to open finding that both parties had full knowledge of the lawsuit and that there was no basis to the defendant's claim that the plaintiff was aware of the value of the lawsuit on the date of dissolution when in fact that was not the case. The court held " at the time of dissolution, both parties knew of the existence of the Hartford lawsuit. Neither party was clairvoyant and thus neither knew what the final outcome of the lawsuit would be. The ultimate value of the lawsuit was unknown at the time of dissolution." 102 Conn.App. at 229.
In the instant case, the defendant wife knew about the personal injury claim. The case had not been settled or even instituted and so clearly, neither could know its value at the time of the dissolution. Although the plaintiff technically violated Practice Book § 25-30 by not listing the claim as at least a contingent asset on his financial affidavit, the court finds that he did not intend to mislead or omit. At the time of the dissolution, both parties knew that the plaintiff had been involved in a serious motor vehicle accident and nothing has really changed since then. At the time of dissolution, aware of the potential claim, the wife could have asserted her right at that time to a share of the plaintiff's recovery; she did not. In other words, her ability to demand a share of the plaintiff's personal injury case now is no stronger than it was at the time of dissolution.
" Pursuant to General Statutes § 52-212a, " a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed . . ." An exception to the four-month limitation applies, however, if a party can show, inter alia, that the judgment was obtained by fraud. See, Weiss v. Weiss, 297 Conn. 446, 455, 998 A.2d 766 (2010).
" Fraud by nondisclosure, which expands on the first three of [the] four elements [of fraud], 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, under circumstances in which there is a duty to speak . . . A lack of full and fair disclosure of such facts must be accompanied by an intent or expectation that the other party will make or will continue in a mistake, in order to induce that other party to act to her detriment . . . In a marital dissolution case, the requirement of a duty to speak is imposed by Practice Book § [25-30], requiring the exchange and filing of financial affidavits . . . and by the nature of the marital relationship." (Citations omitted.) Gelinas v. Gelinas, 10 Conn.App. 167, 173, 522 A.2d 295, cert. denied, 1088 204 Conn. 802, 525 A.2d 965 (1987), overruled on other grounds by Billington v. Billington, 220 Conn. 212, 595 A.2d 1377 (1991).
" 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 . . . There are three limitations on a court's ability to grant relief from a dissolution judgment secured by fraud: (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 fraud; and (3) there is a substantial likelihood that the result of the new trial will be different ." (Emphasis provided.) Weinstein v. Weinstein, 275 Conn. 671, 685, 882 A.2d 53, 62-63 (2005).
It is not clear by any means that the plaintiff committed fraud in this instance. The defendant was aware of the potential claim and the evidence is controverted as to whether or not they actually discussed this potential claim at the time of dissolution. The defendant's further hurdle is that she must demonstrate that there is a substantial likelihood that the result of the new trial would be different. While it is within the court's discretion to divide the proceeds of a personal injury suit as marital property to either party, it is more probable that the proceeds of the personal injury case would go to the party who sustained the actual injury. Thus, it is far from certain that the result of a trial, now knowing that there were proceeds of a personal injury case, would be any different.
For the foregoing reasons the Motion to Open is denied. The motion for contempt is granted. The parties shall secure a hearing date to determine what damages were suffered by the plaintiff husband and what sanction should follow.