Shelisa R. Boxley v. Elizabeth P. Boxley (2013)

MEMORANDUM OF DECISION REGARDING MOTION TO VACATE ORDERS OF PROBATE COURT GRANTING ADOPTIONS (# 136)

A review of the record reveals that the parties entered into a same-sex marriage on November 13, 2009.   At the time, the plaintiff (hereinafter “biological mother”) was the parent of four minor children;  Jonathan Boxley born August 25, 2000, Charisma Boxley born August 20, 2002, Dylan Boxley born November 24, 2004 and Kiersten Boxley born May 30, 2006.   A fifth child, Lukas Boxley was born on May 22, 2010, during the marriage.   On July 11, 2012, the Probate Court, district of Norwich, granted decrees of adoption regarding each of the four oldest children in favor of the defendant (hereinafter “adoptive mother”).   The plaintiff instituted proceedings for dissolution of marriage on July 20, 2012.   The plaintiff filed this motion to vacate those Probate Court decrees of adoption on March 20, 2013, alleging that the adoptive mother perpetrated a fraud on the biological mother and/or on the Probate Court.   The parties appeared, together with counsel and the Guardian ad litem, before the undersigned on May 30, 2013.

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

1. The parties lived together for approximately one year before marrying on November 13, 2009.

2. Until July 2012, the parties lived as a family and the children bonded closely with both of their mothers.

3. The biological mother was essentially the “breadwinner” of the family, working as a school bus driver.

4. The adoptive mother was essentially a “stay-at-home mom” for the children when the biological mother was working.

5. The parties described their relationship as having the “normal ups and downs of any marriage,” punctuated by normal disagreements and arguments.

6. Early on in their relationship, the parties attempted to terminate the parental rights of the father of the children and have the adoptive mother adopt the children, which was initially denied by the Probate Court, presumably because the relationship was still somewhat new.

7. The parties reapplied for the adoption which was begun on or about March 22, 2012, which was finalized on July 11, 2012.

8. DCF had completed an investigative report on or about June 12, 2012 recommending the adoption.   Both parties reported to the DCF investigator that their marriage was “rock solid” and “stable.”

9. Neither party informed the Probate Court that they were fighting or that their marriage was anything but stable and, rather, both reported to the Probate Court that their marriage was stable and happy.

10. In a somewhat unusual appearance, the Honorable Chuck Norris, probate judge, district of Norwich, testified that at the time of the adoption, neither party brought to his attention that their marriage was anything but stable and happy.

11. Both parties concur that they were fighting or arguing on July 10, 2012 which continued through July 11, 2012.   Neither party described the disagreement as “a marriage ender” but rather, an argument about one of them receiving text messages from a third party.

12. The biological mother testified that the adoptive mother informed her on the courthouse steps after the adoptions were granted by the Probate Court that she would never return to their home again and that she wanted a divorce.

13. The adoptive mother testified that she informed the biological mother one or two days after the adoption that she considered the marriage over.

14. The adoptive mother testified credibly that she always has and continues to consider herself to be the mother of these children.

15. The adoptive mother testified credibly that at the time of the adoption and while leaving the courthouse, she did not consider the relationship over but rather that they were having a normal fight which would blow over.

16. The adoptive mother testified credibly that as they were leaving the courthouse, they were arguing and that she told the biological mother that she was not coming home “just now.”   The parties then discussed how the children would be picked up from their babysitter.

17. It was the biological mother who instituted the proceedings for dissolution of marriage, nine days after the adoption.

18. The court is unable to conclude by clear and convincing evidence or even by the lesser standard of a fair preponderance of the evidence that the adoptive mother, at the time of the adoption, intended to divorce the biological mother or that she perpetrated a fraud.

19. The court is unable to conclude by clear and convincing evidence or even by the lesser standard of a fair preponderance of the evidence that the adoptive mother, at the time of the adoption, intended anything but to adopt the children which she had been co-parenting together with the biological mother.

Legal Discussion

Connecticut General Statutes § 45a–24 states:

“Every order, judgment or decree of a court of probate rendered after notice and from which no appeal is taken, shall be conclusive and shall be entitled to full faith, credits and validity and shall not be subject to collateral attack, except for fraud.”

A judgment based on fraud may be vacated at any time.  Billington v. Billington, 220 Conn. 212, 218 (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.

To prevail on a theory of fraud, the burden is on the movant to prove by clear and convincing evidence that the other party knowingly misrepresented material facts.   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.

“The essential elements of an action in common law fraud ․ are that:  (1) a false representation was made as a statement of fact;  (2) it was untrue and known to be untrue by the party making it;  (3) it was made to induce the other party to act upon it;  and (4) the other party did so act upon that false representation to his injury ․ [T]he party to whom the false representation was made [must claim] to have relied on that representation and to have suffered harm as a result of the reliance.”  Simms v. Seaman, 308 Conn. 523, 548, 551 (2013).  “ ‘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.’  “ Alexander v. Church, 53 Conn. 561, 562, 4 A. 103 (1886), quoting T. Cooley, Torts p. 474.   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.  Maturo v. Gerard, 196 Conn. 584, 587, 494 A.2d 1199 (1985);  Miller v. Appleby, 183 Conn. 51, 54–55, 438 A.2d 811 (1981) ․ The power of the court to vacate a judgment for fraud is regarded as inherent and independent of statutory provisions authorizing the opening of judgments;  hence judgments obtained by fraud may be attacked at any time.”  Billington v. Billington, 220 Conn. 212, 217–18 (1991).

The plaintiff argues that the defendant perpetrated a fraud on herself and on the court in failing to disclose to the Probate Court, at the time of the adoption, that their marriage was not stable and was, in fact, on the verge of dissolution.   This argument presupposes that in fact, the marriage was on the verge of dissolution at the time of the Probate Court hearing and that all the while, the defendant was conspiring to “kidnap” these children via the adoption process.   The evidence before the court does not support such a conclusion.   The argument or disagreement which was occurring during the period of the adoption appears to be a minor one which unfortunately spiraled out of control into something much larger thereafter.   The court is unable to conclude that the breakdown of the marriage had already occurred at the time of the adoption and, in fact, both parties testified credibly that there was at least one effort at reconciliation during the pendency of the divorce which was almost successful.

The court finds that the plaintiff has not sustained her burden of proof and for the foregoing reasons, the motion to vacate is denied.   This case shall proceed to a fully contested trial as scheduled before the undersigned unless the parties resolve their differences before that time themselves.

Shluger, J.

Shluger, Kenneth L., J.