Eric P. Sousa v. Donna M. Sousa (2014)

MEMORANDUM OF DECISION RE MOTIONS # 132, # 143 AND # 146

Clear and convincing evidence must be presented to satisfy the burden of proof in an allegation of fraud.   The defendant, as the moving party, failed to meet this burden.   Therefore, her Motion to Open and Vacate Judgment (pleading # 132) is denied.   The Motion to Vacate (pleading # 143) and Motion for Counsel Fees (pleading # 146) are also denied for the reasons set forth below.

FACTS

After a 14–year marriage, the parties were divorced in an uncontested proceeding on December 19, 2001.   Both parties were represented by counsel.   The parties exchanged extensive discovery and participated in a Special Masters pre-trial.

A separation agreement was prepared and executed which, among other things, provided that plaintiff's Borough of Naugatuck police pension be divided equally via a Qualified Domestic Relations Order (QDRO).   The QDRO was prepared by the defendant's counsel, who received information about the pension from plaintiff's counsel (see plaintiff's exhibit 3 and 6).   A further provision in the agreement called for the plaintiff to pay periodic alimony of $130 per week, subject to termination at the end of five years, or earlier upon the wife's cohabitation or death of either party.

Approximately two years after the divorce, the defendant began cohabiting with Tom Spivak, now her husband.   Upon becoming aware of the situation, the plaintiff informed the defendant that she was in violation of their divorce agreement and that he would be seeking to terminate the alimony.   After some discussion, the defendant informed the plaintiff that she desired to finish her education leading to a teaching degree, higher income and a pension but would need the alimony payments in order to do so.   The defendant proposed to waive her right to her share of the plaintiff's pension in exchange for a continuation of the alimony for three years despite her admitted cohabitation.   The plaintiff agreed to the proposal and continued to pay the alimony.   Unfortunately, neither party went to court to seek a modification of the original judgment.

After the conclusion of the five year alimony period established by the terms of the separation agreement, the plaintiff filed a Motion to Modify Judgment in Accordance with Stipulation (pleading # 124) to have the full pension returned to him.   By agreement, his counsel prepared the motion and the accompanying stipulation which was signed by both parties and submitted to the court for approval.   Both parties appeared in court before Judge Robert Resha on January 2, 2007, the plaintiff with counsel and the defendant appeared as a self-represented litigant.¹

During the hearing, Judge Resha canvassed the defendant asking if she had reviewed the terms and conditions of the stipulation with a family relations officer, to which she replied in the affirmative.   The terms of the stipulation were then read into the record.   The judge then asked her why she was entering into this agreement which waived her right to receive any portion of the plaintiff's pension.   To her credit, the defendant truthfully replied that it was her idea, pursuant to an agreement entered into three years earlier that provided that the plaintiff would not cease alimony payments and she would relinquish her portion of his pension.

Judge Resha further asked the defendant if she understood that once she relinquishes any right to the pension it will not be able to be addressed by the court in the future—that it would be his from that point on.   She once again answered in the affirmative.   The judge then asked if she was comfortable entering into the agreement without the benefit of an attorney.   Again she answered in the affirmative.   The court then made a finding that the stipulation was warranted, accepted it and made it a final order of the court.   No appeal was ever taken.

Four years after the entry of the order (March 31, 2011), the defendant filed her Motion to Open and Vacate Judgment (pleading # 132) which is the subject matter of this memorandum.   In that motion, the defendant alleges that the modification was secured by fraud on the part of the plaintiff.   On November 2, 2011, the defendant filed a Motion to Vacate the January 2, 2007 Order (pleading # 143), this time claiming that the court lacked jurisdiction to enter such an order.   On November 9, 2011, the defendant filed a Motion for Counsel Fees Postjudgment (pleading # 146).   The matter was heard by the court on January 14, 2014.   Both parties were represented by competent counsel, who filed well written post-trial briefs and zealously represented their clients as required by the oath of their office.

DISCUSSION

IMotion to Open

“Although generally a motion to open must be filed within four months of entry of the judgment ․ a motion to open on the basis of fraud is not subject to this limitation but should be presented promptly after the discovery of the alleged fraud.”  (Citation omitted.)  Konefal v. Konefal, 107 Conn.App. 354, 359 n.5, 945 A.2d 484, cert. denied, 288 Conn. 902, 952 A.2d 810 (2008).   “[A] judgment rendered by the court with consent of the parties may be subsequently opened if it is shown that the stipulated settlement was obtained by fraud or intentional material misrepresentation.”  Jucker v. Jucker, 190 Conn. 674, 677, 461 A.2d 1384 (1991).  “A motion to open and vacate a judgment ․ is addressed to the [trial] court's discretion ․” (Internal quotation marks omitted.)  Reiner, Reiner & Bendett, P.C. v. Cadle Co., 278 Conn. 92, 107, 897 A.2d 58 (2006).  “[O]nce a judgment is rendered it is to be considered final ․ and should be left undisturbed by post-trial motions except for a good and compelling reason.”  (Citations omitted.)  Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 713, 462 A.2d 1037 (1983).²

In the present matter, the defendant claims that the plaintiff failed to fully and accurately disclose the value of his defined benefit pension plan in his financial affidavit.   The defendant asserts that this failure constitutes fraud by the plaintiff, and that the modification was obtained through such fraud.   The plaintiff argues in response that his actions did not constitute fraud.

“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 ․” (Internal quotation marks omitted.)  Weinstein v. Weinstein, 275 Conn. 671, 685, 882 A.2d 53 (2005).  “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.”   (Internal quotation marks omitted.)  Id.

In this case, while laches was not specifically pleaded, it is worthy of note that approximately four years passed after the parties entered into the stipulation which the defendant now claims was the product of fraud.   No clear and convincing evidence was introduced in support of that allegation.   In fact, some of the defendant's testimony was conflicting and lacked credibility.   Lastly, there was no evidence whatsoever that had the facts been known as the defendant claims, the result of a new hearing would have been different.

“The party alleging fraud bears the burden of proving it with clear, precise, and unequivocal evidence.”  (Internal quotation marks omitted.)  Aksomitas v. Aksomitas, 205 Conn. 93, 100, 529 A.2d 1314 (1987).   The standard of proof is “[c]lear and convincing evidence ․ This burden is sustained if the evidence convinces the trier of fact of a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.”  (Internal quotation marks omitted.)   Lavouge–Sinatro v. Sinatro, Superior Court, judicial district of Hartford, Docket No. FA–05–4008647–S (September 12, 2008, Epstein, J.).

The defendant, as the party moving to open the judgment, has the burden of proving fraud by clear and convincing evidence.   The defendant has failed to carry this burden of demonstrating that the elements of fraud are satisfied.

The plaintiff's financial affidavit lists the value of the pension in question as $32,698.82.  (See exhibit 2.) The defendant has failed to present clear and convincing evidence that the value of the pension as of the date in question was other than this amount.   Notably, the defendant failed to present actuarial testimony as to the value of the pension.   See Weinstein v. Weinstein, supra, 275 Conn. 696–97 (“[t]he value of the parties' assets must be determined as of the time the judgment of dissolution is rendered”);  Bender v. Bender, 258 Conn. 733, 754, 785 A.2d 197 (2001) (“[c]alculating [a pension's] value may require taking actuarial testimony”).

The Appellate Court has held that when the plaintiff's financial affidavit reflected his honest opinion of his assets at that date, it was not error for the trial court to deny a motion to open claiming fraud.  Terry v. Terry, 102 Conn.App. 215, 227–28, 925 A.2d 375, cert. denied, 284 Conn. 911, 931 A.2d 934 (2007).   The defendant in the present matter has not shown clear and convincing evidence to the court that the plaintiff's pension is valued at an amount other than what was demonstrated in the affidavit, or that the plaintiff knew the amount stated in the affidavit was untrue.   Accordingly, the defendant has failed to demonstrate clear proof of the fraud as required by Weinstein.   The motion to open is denied.

II

Motion to Vacate

The defendant further argues that the court was without subject matter jurisdiction to enter the January 2, 2007 modification order because more than four months had passed since the dissolution judgment was entered on December 19, 2001.  General Statutes § 52–212 states in relevant part that “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.”   The same section also states, however, that “[t]he parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court ․” See also Practice Book § 17–4 (same).

In the instant case, the parties submitted to the jurisdiction of the court by submitting a signed stipulation which they asked the court to approve on January 2, 2007.   See exhibit 8. At that time, the court canvassed the plaintiff as to the stipulation, and the plaintiff stated that it was her intention to relinquish her claim to the pension, that it was her idea to do so, and that she was comfortable entering into the agreement without the benefit of an attorney.   Accordingly, this court finds that both parties effectively waived the four-month requirement of § 52–212.   The motion to vacate (pleading # 143) is therefore also denied.

III

Mutual Mistake

In the defendants post-hearing brief, she further claims that the January 2, 2007 order should be opened and vacated based on the presence of a mutual mistake.   Mutual mistake was not included in any pleading submitted to the court, nor was any evidence introduced at the hearing concerning mutual mistake.   Nevertheless, in the interest of judicial economy should the issue arise again, the court will address the claim.

“A mutual mistake is one that is common to both parties and effects a result that neither intended.”  Megowan v. Magowan, 73 Conn.App. 733, 739, 812 A.2d 30 (2002).   See also Witcraft v. Witcraft, Superior Court, Judicial District of New London, Docket No. 518209 (October 14, 1993, Teller, J.) (10 Conn. L. Rptr. 201) (mutual mistake exists “where the written instrument fails to express the real agreement or transaction and effects a result which neither [party] intended”).  “The standard of proof in a mutual mistake claim is clear, substantial and convincing evidence.”   Visconti v. Pepper Partners Ltd. Partnership, Superior Court, Judicial District of Waterbury, Complex Litigation Docket, Docket No. X06–CV–99–0170072–S, (May 8, 2003, McWeeny, J.) (34 Conn. L. Rptr. 645), citing Lopinto v. Heines, 185 Conn. 527, 441 A.2d 151 (1981).   The burden of proof is on the party claiming mutual mistake.   See Coombs v. Phillips, 5 Conn.App. 626, 626, 501 A.2d 395 (1985).

In the present matter, as discussed above, the defendant has failed to present clear and convincing evidence regarding the value of the pension.   Accordingly, the defendant failed to prove that either party could have been mistaken as to the value of the pension.   In view of the fact that sufficient evidence was not produced regarding any mistake, much less mutual mistake, the claim must be denied.

IV

Motion for Counsel Fees

The defendant further moves that the plaintiff be ordered to pay her counsel fees.   The defendant's motion omits any reference to the authority on which the defendant is relying in seeking an order for the award of attorneys fees.   “[T]he common law rule in Connecticut, also known as the American Rule, is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception.”   (Internal quotation marks omitted.)  Berzins v. Berzins, 306 Conn. 651, 661, 51 A.3d 941 (2012).  “This rule does not apply, however, where the opposing party has acted in bad faith ․ It is generally accepted that the court has the inherent authority to assess attorneys fees when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons.”  (Internal quotation marks omitted.)  Munro v. Munoz, 146 Conn.App. 853, 858, 81 A.3d 252 (2013).   The award of any attorneys fees is at the discretion of the trial court.  Id.

In the present matter, the court finds no bad faith on the part of the plaintiff.   The motion for counsel fees (pleading # 146) is therefore also denied.

CUTSUMPAS, J.T.R.

FOOTNOTES

FN1. Plaintiff's exhibit 8 is the transcript of the January 2, 2007 hearing..  FN1. Plaintiff's exhibit 8 is the transcript of the January 2, 2007 hearing.

FN2. The civil rules for opening a judgment are applicable to family matters.  Practice Book § 25–38..  FN2. The civil rules for opening a judgment are applicable to family matters.  Practice Book § 25–38.

Cutsumpas, Lloyd, J.T.R.