Jacqueline Pierson v. David Pierson (2012)

MEMORANDUM OF DECISION REGARDING DEFENDANT'S MOTION TO OPEN (108) AND PLAINTIFF'S MOTION FOR CONTEMPT (109)

A review of the record reveals that the parties were married on June 17, 1995 and dissolution entered, pursuant to a simple, four-page separation agreement on January 19, 2012.   Said agreement calls for the husband retaining the marital residence and an adjoining piece of real estate and in exchange, paying to the wife the sum of $80,000.   The husband now claims that the judgment should be opened pursuant to Practice Book § 17–4 due to a “mistake on value of said property.”   The wife's motion for contempt requests that the judgment be enforced.

FACTUAL FINDINGS

1. The parties were divorced, pursuant to a separation agreement, drafted by the wife's lawyer dated January 19, 2012.

2. Said agreement calls for the defendant husband to retain the marital residence and an adjoining parcel of real estate and that he pay to the wife the sum of $80,000.

3. During the pendency of the dissolution, the wife was represented by counsel and the husband was self represented.

4. During the pendency of the dissolution, the husband was suffering from a recurrence of cancer and from depression.

5. During the pendency of the dissolution, the husband was able to remain employed, go about most of his normal routines and at no time had been disabled from employment.

6. The husband does not claim that he was incompetent during the pendency of the dissolution nor does he claim that the wife perpetrated a fraud.

7. During the pendency of the dissolution, the wife's lawyer forwarded to the husband at least one proposed separation agreement for his review and comments.   One such version dated October 6, 2011 was admitted into evidence (Exhibit 1).   It reflected precisely the terms and conditions of the final agreement.

8. At the time of dissolution, the wife valued the marital residence at $187,000, subject to a $50,000 mortgage or $137,000 in equity.   She valued the adjacent building lot at $48,000 with no mortgage.   She arrived at these valuations, relying on a comparative market analysis showing a median sales price for the marital residence as $190,000 and a median price for the adjoining building lot of $45,000 (Exhibit 2).

9. The husband accepted these valuations being reflected as the same values on his financial affidavit which was executed by himself but prepared by the wife's attorney.

10. Thereafter, the husband attempted to refinance the marital residence to obtain the $80,000 called for in the judgment but was denied the loan.

11. Subsequently, the defendant obtained an appraisal of the two parcels of land which was admitted into evidence without objection.  (Exhibit G.) Said appraisal valued the marital residence at $166,000 and the adjacent building lot at $30,000 for a total of $196,000, which was $39,000 less than what he thought they were worth at the time of dissolution.   The wife did not agree that these valuations were accurate.

12. At the time of the dissolution, the wife listed her life insurance policy but neglected to list its cash surrender value.   Similarly, the husband listed his life insurance policy and neglected to list its cash surrender value.   Both parties were aware that the other had life insurance and, in fact, the husband testified that he often wrote the check for the premiums.

13. Subsequent to the dissolution, the husband learned that the wife's life insurance policy had a cash surrender value of $13,810 and that his life insurance had a cash surrender value of approximately $1,000.

14. The husband does not claim that the wife committed fraud but rather, that he was mistaken as to the valuation of the real estate and that she neglected to list the value of her life insurance policy or that he entered into the agreement under duress.

LEGAL DISCUSSION

“The principles that govern motions to open or set aside a civil judgment are well established.   Within four months of the date of the original judgment, practice book section 17–4 vests discretion in the trial court to determine whether there is a good and compelling reason for its modification or vacation.”  Dimmock v. Allstate Insurance Co., 84 Conn.App. 236, 241 (2004).   While practice book section 17–4 does not contain a precise list of what the moving party must show in order to prevail, a party wishing to open a judgment must nevertheless demonstrate that there is a good and compelling reason for the court to grant the motion.  Hirtle v. Hirtle, 217 Conn. 394, 398 (1991).

“A motion to open a stipulated judgment, when grounded in mistake or duress, necessarily requires the court to make a factual determination before it can exercise its discretion to grant or deny the motion ․ In making its factual determination whether a stipulated judgment should be opened, the court must inquire into whether the decree itself was obtained by fraud, duress, accident or mistake ․” Jenks v. Jenks, 232 Conn. 750, 753 (1995).

“For a party to demonstrate duress, it must prove a wrongful act or threat, that left the victim no reasonable alternative and to which the victim in fact acceded and that the resulting transaction was unfair to the victim.”  Cox v. Burdick, 98 Conn.App. 167, 177–78 (2006).   There was simply no evidence that the wife pressured or in any way subjected her husband to duress under these circumstances

There is ample authority for the proposition that a judgment may be opened when it is shown that the judgment was obtained by fraud.  Hill v. Hill, 25 Conn.App. 452, 455 (1991), Weinstein v. Weinstein, 275 Conn. 671 (2005), Gregor v. Gregor, 22 Conn.App. 596 (1990), and Terry v. Terry, 102 Conn.App. 215 (2007).   But in this case, there is no evidence that the wife perpetrated a fraud on her husband or on the court.   At best, it can be argued that she utilized valuations which she obtained from a legitimate real estate market analysis.   It is also not clear that the appraisal obtained by the husband, postjudgment, accurately reflects the value of the real estate at the time of dissolution.   The husband had every opportunity, prior to and at the time of dissolution, to obtain his own valuations of the marital assets;  he chose not to.   It is not as if the wife concealed the existence of assets from the husband;  she simply utilized evaluations that were available to her.

“Our Supreme Court has ․ recognized ․ that the government has an interest in encouraging private agreements that have been incorporated into decrees for dissolution, separation or annulment.”  Billington v. Billington, 220 Conn. 212, 221 (1991).   Negotiated settlement of these affairs conserves judicial resources and encourages private resolution of family issues.

“Additionally, the government has an interest in preserving and enforcing orders that were entered by the courts in dissolution proceedings after a determination that the judgment is fair and equitable.”  Dougan v. Dougan, 114 Conn.App. 379, 385 (2009).   Moreover, the “private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine.”  Hayes v. Berseford, 184 Conn. 558, 568 (1981).

For the foregoing reasons the motion to open is denied and the motion for contempt is granted, the court finding that the defendant neglected or refused to pay to the wife the sum of $80,000 as called for in the judgment.   The husband is ordered to take all steps necessary to pay to the wife the $80,000 as court ordered.   The parties are to appear before the undersigned on September 10 so the court may monitor compliance of that order.

Shluger, J.

Shluger, Kenneth L., J.