Opinion
No. FA 85 0044275 S
September 9, 2003
MEMORANDUM OF DECISION RE MOTION #120 OBJECTION TO MOTION TO DISMISS AND REQUEST FOR HEARING
On February 8, 2002, the defendant in the instant action moved this court to "Open Judgment of Divorce Due to Fraud Perpetrated on the Court by the Plaintiff."
The parties to this action were originally married in 1963, but that marriage ended in a divorce in 1966. The parties subsequently remarried later in 1966 and this marriage was dissolved by way of a judgment that was entered by the Superior Court, Judicial District of Middlesex, at Middletown on May 29, 1986. It is the latter marriage and dissolution that is the subject of the instant action.
The defendant asserts that the plaintiff filed a financial affidavit from which he intentionally omitted information concerning his pension fund. The defendant further asserts that had the plaintiff made a full and fair disclosure of his assets, she would have received a portion of said pension at the time that judgment was entered.
On March 20, 2002, the plaintiff filed a Motion to Dismiss and Objection to the Defendant's Motion to Reopen, Postjudgment The plaintiff asserts that this matter was sixteen (16) years postjudgment at the time that the defendant filed her motion. The plaintiff further asserts that due to the passage of time, plaintiff's former counsel has destroyed the file concerning this matter.
"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, CT Page 10642 196 Conn. 584, 587, 494 A.2d 1199 (1985); Miller v. Appleby, 183 Conn. 51, 54-55, 438 A.2d 811 (1981). A marital judgment based upon a stipulation may be opened if the stipulation, and thus the judgment, was obtained by fraud. Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980). "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 (1991).
This court notes that judgment entered in this matter on May 29, 1986. The court further notes that the defendant in the instant action did not meet her burden of proof to show that the omission in the disclosure was made with the intent to induce reliance on said omission, or that she had indeed relied upon said omission.
In Varley v. Varley, 180 Conn. 1 (1980), our State Supreme Court established a four-prong test concerning reopening a judgment of dissolution on the basis of fraud. The Court held that:
Such relief will only be granted if the unsuccessful party is not barred by any of the following restrictions: (1) There must have been no laches or unreasonable delay by the injured party after the fraud was discovered. (2) There must have been diligence in the original action, that is, diligence in trying to discover and expose the fraud. (3) There must be clear proof of the perjury or fraud. (4) There must be a substantial likelihood that the result of the new trial will be different.
Varley, supra at page 4.
A hearing was held on July 21, 2003, although both parties were represented by counsel, only the defendant physically appeared at the hearing and testified.
The plaintiff worked at Stop Shop since 1971 and had accrued about fifteen years of his pension before the marriage of the parties was dissolved.
It was not until about a year ago, when the defendant thought that it was about time for the plaintiff to start receiving pension benefits that she sought to receive a portion of said benefits and discovered that she did not have rights in the plaintiff's pension.
The plaintiff did not disclose his pension on his financial affidavit during the dissolution proceedings. It further indicates that the defendant herself reviewed the plaintiff's financial affidavit.
The credible and convincing evidence produced at the hearing of this matter indicates that although the plaintiff did not disclose his pension information on the financial affidavit, the defendant was fully aware that the plaintiff had an employment position wherein he would be eventually be receiving pension benefits. The defendant offered credible and convincing testimony that when she thought it was time for the plaintiff to start receiving his pension payments she sought to get what she believed to be her share of said payments. She could not have done this without the knowledge that said pension benefit existed. As to the issue as to when she became aware of the pension, i.e., before, during or after the dissolution action, the defendant did not offer any credible and convincing evidence as to when this event occurred. There was no credible evidence that the defendant only recently obtained information about the pension. She therefore has failed to prove that there was not an unreasonable delay after the alleged fraud was discovered.
As to the issue of diligence in the original action in trying to discover or expose the alleged fraud, the defendant offered no credible and convincing evidence that any action was taken to investigate, discover or to even inquire into the issue of the plaintiff's pension or the possible existence of a pension.
Although the evidence indicates that the plaintiff omitted the pension from his financial disclosure, there is no credible and convincing evidence that shows "clear proof" that the omission was due to fraud or perjury. Without said evidence this court would merely be speculating as to whether the omission was fraudulent as opposed to negligent. Although this defendant desires this court to draw inferences concerning the nature of the omission of the plaintiff's pension information from the financial disclosure made some thirteen (13) years ago, there must be some factual basis to support said inferences.
"An inference must have some definite basis in the facts. See Latham v. Hankey, 117 Conn. 5, 10-11, 166 A. 400 (1933)." Boehm v. Kish, 201 Conn. 385, 389, 517 A.2d 624 (1986); see also Kuczon v. Tomkievicz, 100 Conn. 560, 567-68, 124 A. 226 (1924) ("if [the evidence is a mere speculation and a mere probability and uncertainty, why, no court's decision] should be found upon it").
Service Road Corporation v. Quinn, 241 Conn. 630, 647 (1997).
As to the remaining issue, i.e., the court finds that if the pension information is presented at a new trial there is a substantial likelihood that there would be a different financial result due to the inclusion of the pension information, however, based on the fact that the plaintiff has failed to meet her burden of proof as to the three other factors outlined in Varley, the conclusion reached by this court is not altered.
For all of the foregoing reasons the Motion to Dismiss is granted.
Richard Allan Robinson, J.
September 2, 2003