Dawn Chederquist v. Michael Chederquist (2011)

MEMORANDUM OF DECISION REGARDING DEFENDANT'S MOTION TO OPEN AND MODIFY (147) AND DEFENDANT'S MOTION FOR ATTORNEYS FEES (151)

PROCEDURAL BACKGROUND

A review of the record reveals that the parties, married on May 22, 2004, are the parents of two minor children.   On March 31, 2010, dissolution of marriage entered pursuant to a marital settlement agreement of that date.   The agreement called for, inter alia, joint legal custody of the minor children, that the wife would pay child support to the husband in the amount of $125 per week, that they would share equally the value of the wife's 401(k) plan and that both would retain significant debt.   In fact, the addendum to the marital settlement agreement stated “the parties shall continue to be responsible equally for their joint debts and liabilities.   Each party is at liberty to seek to discharge their responsibility for those debts vis à vis a petition in bankruptcy.”

The parties appeared together with counsel on March 3, 2011 regarding these postjudgment motions.

LEGAL DISCUSSION

It is well held that “a judgment rendered may be opened after the four month limitation if it is shown that the judgment was obtained by fraud ․” Hill v. Hill, 25 Conn.App. 452, 455 (1991).   As the court held in Weinstein v. Weinstein, 275 Conn. 671 (2005):

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 ․ A court's determinations as to the elements of fraud are findings of fact that we will not disturb unless they are clearly erroneous ․ 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.

Id., 685.

The burden is on the movant to prove by clear and convincing evidence that the other party knowingly misrepresented his income on his financial affidavit.   Weinstein at 694.

The court in Greger v. Greger, 22 Conn.App. 596 (1990), found that the husband had committed fraud when he had represented on his financial affidavit that his closely held insurance business had no value although he knew at the time the affidavit was filed exactly how much the business was worth.   In the instant case, there was no evidence that the husband knew, at the time the financial affidavit was filed, what his income would be once the business tax return was prepared.

FINDINGS OF FACT

The court finds proven by a fair preponderance of the evidence the following facts:

1.  The parties, married on May 22, 2004, are the parents of two minor children.

2. On March 31, 2010, dissolution of marriage entered pursuant to a marital settlement agreement.

3. The agreement called for, inter alia, joint legal custody of the minor children, that the wife would pay to the husband the sum of $125 per week as child support, that they would share equally the value of the wife's 401(k) plan and that both would retain significant debt.

4. Early in February 2010, during the pendency of the divorce, the wife, who managed the marital finances, informed the husband that they would be receiving a tax refund of approximately $9,000.   She suggested to her husband that they should repay her father a loan in the amount of $7,500 and the husband vehemently refused.

5. On or about February 18, 2010, the wife informed the husband that the tax refund in the amount of $9,096.76 had arrived and that she had repaid her father approximately $7,000 and that there was $2,000 left for him.

6. The evidence was inconclusive as to whether the husband thereafter acquiesced or protested further.   In any event, he took the $2,000 and it has been spent.

7. Unbeknownst to the husband, to the court where the parties were divorced and to the bankruptcy court where the wife ultimately discharged her debts, the wife had secreted said funds with her father who continues to hold them to this date.

8. The court finds that the wife perpetrated a fraud on her husband when she told her husband that the money had been spent on the repayment of a loan and neglected to list it as an asset on her financial affidavit on the date of dissolution.

9. The court finds that the wife perpetrated a fraud on this court when she neglected to list a significant asset in the approximate amount of $7,000 on her financial affidavit, particularly when there were no other assets but for her modest 401(k) plan.

10. The Court finds that had this asset been properly preserved pursuant to the automatic orders and disclosed on the wife's financial affidavit at the time of dissolution, the parties would have shared this asset equally.   Instead, the husband got $2,000 and the wife got $7,096.76 and the husband was forced to expend thousands of dollars in legal fees to unearth those facts.

11. The court finds that the wife should pay to the husband the entire $7,096.76 and that said sum should be characterized as lump sum alimony so as to make it non-dischargeable in any modification of her bankruptcy.

12. The plaintiff filed a number of postjudgment motions on July 1, 2010, approximately 90 days after judgment entered regarding the co-parenting, custody and access for the children.   Those motions include plaintiff's motion to open and modify (139–sole custody rather than joint custody), motion for contempt (140–that the husband makes disparaging remarks and creates a hostile environment), motion for referral to family services (141–for a study and report), motion to appoint GAL (142), and motion for order (143–child psychologist).

13. The parties appeared on August 2, 2010 relative to these postjudgment motions.   On August 2, 2010, a GAL was appointed, the defendant was found to not be in contempt and the court ordered a new drop off and pick up location for the minor children in a public place.

14. The parties appeared on October 4, 2010 relative to these postjudgment motions and the court, Goldberg, J., ordered the GAL to continue her investigation in regards to the motion to modify.

15. The court finds that the plaintiff was and still is understandably and legitimately concerned with her ex-husband's parenting and attempts to alienate the children from her.   The court finds that the filing of these post judgment motions was made in good faith, grounded in what she believed to be in the children's best interest.

ORDERS:

1.  The motion to open and modify is granted.

2. The wife shall pay to the husband the sum of $7,096.76 by way of a lump sum alimony payment within 30 days.

3. The defendant's motion for attorneys fees is denied.

Shluger, J.

Shluger, Kenneth L., J.