Opinion
No. FA 02 0465583
February 24, 2005
MEMORANDUM OF DECISION
This matter is before the court on a Motion to Open and Correct judgment. Judgment entered in this dissolution of marriage case by stipulation on February 1, 2004. The motion before the court was filed on April 8, 2004. After hearing on November 4, 2004, memoranda of law were filed on December 2, 2004. For the reasons stated hereinafter, the motion is granted in part and denied in part.
I. Facts
The following facts are found.
At the time of the parties' uncontested dissolution hearing, each party submitted a financial affidavit and they jointly submitted an executed Agreement. The defendant's financial affidavit on form JD-FM-6, under G. Deferred Compensation Plans, stated in form substantially displayed here, as follows:
Name of Plan (Individual, I.R.A., 401K, Keough, Etc.) and approximate value:
Connecticut Carpenter's Pension $1,495/mo at age 65 Annuity (est.) $132,234.00
The Agreement between the parties, in relevant portions provided:
12. PENSION:
A. The estimated present value of the Husband's pension with the Connecticut Carpenter's Fund is One Hundred Thirty-two thousand, two hundred and thirty-four Dollars ($132, 234.00). The Husband shall transfer to the Wife one half (1/2) of the present value of his Connecticut Carpenter's Fund by Qualified Domestic Relations Order (QDRO) or any other appropriate means, with appreciation or loss thereon accumulated through and until the assignment.
The defendant's financial affidavit has no value listed for the pension; it lists an expected monthly payout for the pension. The financial affidavit lists an annuity and ascribes a value of $132,234.00 to the annuity. Nowhere in the Agreement between the parties is an annuity listed as an asset or assigned to either party.
The agreement also provided:
28. JURISDICTION:
Connecticut and the Courts therein shall retain jurisdiction over all issues related to this Agreement and all of the provisions contained herein. The laws of the State of Connecticut shall control any and all post-judgment matters.
The motion before the court was preceded by a "motion to correct language re pension and annuity fund" dated March 3, 2004 and filed March 5, 2004. That motion, while filed, was not pursued before the court.
In the present motion to open and correct the judgment, the plaintiff asserts that the Agreement as written is ambiguous as to the disposition of the pension and annuity. The motion also asserts the judgment must be opened `to correct a mutual drafting mistake of the parties.' The motion, by way of relief, seeks the court to open and correct the judgment `to reflect the parties' true intention.'
The plaintiff, her counsel at the time of the dissolution and the defendant testified in this proceeding. Defendant's counsel at the time of the dissolution did not testify in this proceeding but was present in the courtroom for the proceeding. Exhibits placed into evidence disclosed that the parties, in their negotiation, discussed the disposition of both the defendant's pension interest and his annuity. Negotiations were documented back to June 23, 2003. The major items negotiated were the marital residence, the retirement funds and pension, child support, alimony and health insurance, debt and life insurance. Throughout those offers to compromise put forth by the plaintiff through counsel, she sought, inter alia, an equal split of the defendant's annuity and pension interest. Consistent in responsive negotiation, the defendant argued over alimony term and amount and property settlement while otherwise agreeing repeatedly to give the plaintiff 50% of the pension and annuity. Negotiation between the parties disclosed a difference of opinion as to the value of their home and the length and amount of alimony.
A draft of the present agreement was reviewed by the defendant's counsel. The modifications sought to the draft did not in any way reference the silence of the agreement about the fact that the defendant had two assets, a pension and an annuity, nor that the agreement erroneously recited the annuity value as the pension value.
The defendant has two different benefits: a defined benefit pension plan with the Connecticut Carpenter's Pension Fund and an annuity with the Connecticut Carpenter's Pension Supplemental Pension Annuity Fund. The pension payout projected of $1,495.00 per month at age 65 cannot be reached by the defendant until he retires.
Plaintiff and defendant both testified credibly, though each had inconsistencies in their testimony about critical issues. Plaintiff understood from that she was getting half of both assets through the negotiations though she could not explain why she accepted apparently only one in the Agreement and acknowledged that in the canvas of her understanding of the agreement at the time of the final hearing. At the uncontested hearing for the dissolution, the plaintiff under oath was questioned by her attorney as follows:
Q Do you understand that with respect to his pension or annuity at the Connecticut Carpenter's Fund in the approximate value of $132,000 that Mr. Hubbell is agreeing to transfer half of that asset to you by a Qualified Domestic Relations Order?
A Yes.
Defendant testified that after a court negotiation session and prior to the date of the parties' hearing (approximately two weeks later), he agreed to give his wife an additional $5,000.00, resulting in a payout of $85,000 from the marital home in exchange for her not touching his pension. The defendant asserted that he discussed this negotiation with his wife and she agreed; she denied ever having such a conversation. She pointed to advice she had received from her attorney not to speak with her husband at that point, and said that is exactly the advice she followed. The defendant insisted the agreed to bargain for the $5,000 was the pension, not the reduction in the term and amount of alimony. An examination of the consequences of each suggests that the plaintiff would have entered into a bad bargain if the defendant's version of the deal were correct; if the plaintiff's version were correct the trade-off would have been more approximately for equal value.
Nowhere else in the uncontested proceedings are the controversial assets or their disposition mentioned. The Agreement between the parties is devoid of any reference to the defendant's pension except when the annuity is called a pension, or, to look at in the alternative, the Agreement is devoid of any reference to the annuity except when its value is attached to the pension. One way or the other that provision is confusing because of the apparent mix of the two assets into one asset division provision.
II. Law and Discussion
The plaintiff asserts that the judgment should be opened as a result of mutual mistake of the parties, or unilateral mistake or based upon equitable principles. "[C]ourts have intrinsic powers, independent of statutory provisions authorizing the opening of judgments, to vacate any judgment obtained by fraud, duress or mutual mistake." (Internal quotation marks omitted.) In re Salvatore P., 74 Conn.App. 23, 27, 812 A.2d 70 (2002), cert. denied, 262 Conn. 934, 815 A.2d 135 (2003). Tyler B. Lyman v. Lodrini, 78 Conn.App. 684, 687, 828 A.2d 681 (2003).
The motion before the court was filed well within four months of the judgment. "The judgment rendered in an action for dissolution of a marriage is final and may not be opened or set aside unless a motion to do so is filed, pursuant to Practice Book 326 [now § 17-4], within four months from the date of its rendition. Daly v. Daly, 19 Conn.App. 65, 67, 561 A.2d 951 (1989). After that period, absent waiver, consent or other submission to jurisdiction, a court lacks the power to modify or correct a judgment other than for clerical reasons. Misinonile v. Misinonile, 190 Conn. 132, 134, 459 A.2d 518 (1983). A judgment rendered may be opened after the four-month limitation if it is shown that the judgment was obtained by fraud, in the absence of actual consent, or because of mutual mistake. See Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 466, 440 A.2d 159 (1981); Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980); see also Sparaco v. Tenney, 175 Conn. 436, 437-38, 399 A.2d 1261 (1978)." Hill v. Hill, 25 Conn.App. 452, 454-55, 594 A.2d 1041, cert. denied, 220 Conn. 917, 597 A.2d 333 (1991).
It is well recognized that our courts have inherent power to open, correct and modify judgments, but that authority is restricted by statute and the rules of practice. Batory v. Bajor, 22 Conn.App. 4, 8, 575 A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541 (1990). A motion to open a judgment is governed by General Statutes § 52-212a and Practice Book § 17-4. Section 52-212a provides in relevant part: "Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, 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 . . ."
Practice Book § 17-4 states essentially the same rule. Richards v. Richards, 78 Conn.App. 734, 739-40, 829 A.2d 60 (2003).
The motion before the court was timely, filed less than two months after the date of judgment. The four-month limitation does not apply. All of the grounds raised by the plaintiff as bases to open the judgment are within the jurisdiction of the court and must be considered.
Sec. 52-212a. Civil judgment or decree reopened or set aside within four months only.
Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, 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 continuing jurisdiction conferred on the court in preadoptive proceedings pursuant to subsection (o) of Section 17a-112 does not confer continuing jurisdiction on the court for purposes of reopening a judgment terminating parental rights. The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court, provided the filing of an amended petition for termination of parental rights does not constitute a waiver of the provisions of this section or a submission to the jurisdiction of the court to reopen a judgment terminating parental rights.
It is also noteworthy that the agreement expressly provided and reserved continuing jurisdiction to the court over "all issues pertaining to the Agreement."
a. Mutual Mistake
For the court to open the judgment based upon mutual mistake, the court would have to find that both parties were mistaken in the results achieved by their stipulated judgment. "A mutual mistake is one that is common to both parties and effects a result that neither intended." Regis v. Connecticut Real Estate Investors Balanced Fund, Inc., 28 Conn.App. 760, 765, 613 A.2d 321, cert. denied, 224 Conn. 907, 615 A.2d 1048 (1992), citing CT Page 3627 Lopinto v. Haines, 185 Conn. 527, 532, 441 A.2d 151 (1981). Magowan v. Magowan, 73 Conn.App. 733, 739, 812 A.2D 30 (2002).
The court cannot find with certainty what the defendant intended by his signature on the Agreement between the parties. It is the defendant's position that he had swapped his pension for giving up $5,000 in the house equity and that is what his intentions were in regard to the Agreement. Such a proposition may be what he meant but it is an obviously bad deal for the plaintiff. It does not take the expert testimony of an actuary to determine that the plaintiff would not likely take $5,000 in real estate equity in exchange for arguably 50% of a monthly pension payment of $1,495 for the defendant's lifetime starting when he is 65 years old. From that myopic rendering of the Agreement the court cannot then, however, go on to conclude that the defendant in fact agreed to what the plaintiff argues: that the disputed provision of the Agreement was both parties' intent to divide both retirement asserts equally. Indeed negotiations back and forth between the parties suggest they were heading that way, but those were, at that point, only negotiations. Right until the day of trial the parties had no agreement. It would be imprudent for the court to infer that all the pieces that were in place so absolutely that it can conclude to the standard of clear and convincing evidence that a mutual mistake was present and therefore a reformation is needed. That said, a mistake did occur.
b. Unilateral Mistake
Unilateral mistake by one party is not normally grounds for opening a judgment. However, under certain circumstances, as best discussed in the Restatement (Second) of Contracts, a unilateral mistake may give rise to the opening of a judgment. "The comments to § 153 of 1 Restatement (Second) state that the party seeking to avoid a contract on the basis of a unilateral mistake must be the party that was mistaken. `In order for a party to have the power to avoid a contract for a mistake that he alone made, he must at least meet the requirements that he would have had to meet had both parties been mistaken (§ 152) . . . The mistaken party must in addition show that enforcement of the contract would be unconscionable.' 1 Restatement (Second), Contracts § 153 comments (b) and (c)." Gebbie v. Cadle Company, 49 Conn.App. 265, 276, 714 A.2d 678 (1998).
In Connecticut, unilateral mistake may be a basis for an opening of a judgment if the moving party proves by clear and convincing evidence that she, in this case, the plaintiff, was mistaken as a result of inequitable or fraudulent conduct of the other party, here the defendant. "We now turn to the question whether this case is one of a unilateral mistake coupled with actual or constructive fraud or inequitable conduct on the part of the plaintiff. See Greenwich Contracting Co. v. Bonwit Construction Co., supra. The defendant makes no claim of actual or constructive fraud, but does claim unilateral mistake coupled with inequitable conduct by the plaintiff.8 "The burden of persuasion in an ordinary civil action is sustained if evidence `induces in the mind of the trier a reasonable belief that it is more probable than otherwise that the fact in issue is true.' Darrow v. Fleischner, 117 Conn. 518, 520, 169 A. 197; Mead v. Husted, 52 Conn. 53, 50-61. In certain extraordinary circumstances a higher degree of belief has been required." Dacey v. Connecticut Bar Assn., 170 Conn. 520, 534, 368 A.2d 125 (1976). This case presents one "extraordinary circumstance" where that "higher degree of belief" is required.
"The phrase `clear, substantial and convincing evidence' fairly characterizes that degree of belief that lies between the belief that is required to find the truth or existence of the issuable fact in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution.9 See also Dacey v. Connecticut Bar Assn., supra, 536-37. In cases such as this which require such a showing of proof, the burden of persuasion is sustained if the evidence `induces in the mind of the trier 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.' See Dacey v. Connecticut Bar Assn., supra, 537; see also McBaine, " Burden of Proof: Degrees of Belief," 32 Cal.L.Rev. 242, 246-47, 254, 262-64 (1944). This is the quality of the evidence required in cases of this type." Lopinto v. Haines, 185 Conn. 527, 533-35, 441 A.2d 151 (1981).
The plaintiff was mistaken in believing that the language of the Agreement granted her a one-half interest in both the pension and the annuity funds. The financial affidavit filed by the defendant, however, inevitably contributed to the lack of clarity at the time of the final judgment. The negotiations were clear that, indeed if there were two funds, the plaintiff asserted the right to one-half of each. On the day of judgment, the defendant's affidavit was so unclear that it appeared to provide only one value, that recited in the agreement, $132,000, for a pension which would pay out in a way akin to an annuity, at $1,495.00 per month. Certainly, the plaintiff when questioned by her attorney had the right to rely on defendant's financial affidavit in her answers.
Attorney Schulze was present on the date of the final hearing. He is a colleague in the office of Attorney Vavra, who negotiated on behalf of the plaintiff throughout the months preceding the final uncontested hearing date.
Further, it is illogical, after examining the agreement, that it was intended to leave to the defendant all of the pension and the agreement then to failure to so state it. Further, the agreement itself is ambiguous because it assigns the annuity value to the language purporting to divide the pension. Finally, the agreement expressly referenced even the smallest assets of the parties; the drafters of the agreement could not have intended to be silent as to a substantive asset such as the pension. The defendant did not undertake to correct the reliance by the plaintiff on the language of his financial affidavit at the time of the final hearing. After the plaintiff's counsel asked her, "Do you understand that with respect to his pension or annuity at the Connecticut Carpenter's Fund in the approximate value of $132,000 that Mr. Hubbell is agreeing to transfer half of that asset to you by a Qualified Domestic Relations Order?," it was patently clear that plaintiff was relying on the defendant's financial affidavit. The court finds by clear and convincing evidence that the plaintiff's mistake resulted from the ambiguity occasioned by the defendant's conduct. "Unilateral mistake, while never a ground for reformation, may under certain circumstances justify the rescission of a contract." Milford Yacht Realty Co. v. Milford Yacht Club, 136 Conn. 544, 549, 72 A.2d 482 (1950).
c. Equitable Principles
Mistake doctrines are principles of equity. Equitable principles result in the court concluding that, the mistake in drafting occasioned by the ambiguous financial affidavit of the defendant, it caused the plaintiff to be harmed by a result she did not bargain for.
d. Remedies
The plaintiff seeks the remedy of reformation of the agreement to find and order that it provides for a 50% division of both the pension and the annuity. "Reformation is appropriate in cases of mutual mistake — that is where, in reducing to writing an agreement made or transaction entered into as intended by the parties thereto, through mistake, common to both parties, the written instrument fails to express the real agreement or transaction . . . [R]eformation is also available in equity when the instrument does not express the true intent of the parties owing to the mistake of one party . . . (Internal quotation marks omitted.) [Citations omitted.]" Richards v. Richards, 78 Conn.App. 734, 746, 829 A.2d 60 (2003).
An action for reformation rests on the equitable theory that the instrument sought to be reformed does not express the intention of the parties because it was executed as the result of mutual mistake or unilateral mistake coupled with fraud or inequitable conduct on the part of the other party. Greenwich Contracting Co. v. Bonwit Construction Co., 156 Conn. 123, 126, 239 A.2d 519 (1968). "In many instances, words used by the parties in their writing are not particularly suitable to express their meaning, but they are nevertheless capable of being interpreted, even without an actual physical reformation of the contract . . . In such a case no equity power is required." D. Dobbs, Law of Remedies (2d Ed. 1993) § 11.6(3). If the word in question appears to be an error, the trial court may, by looking at the contract as a whole, interpret the word so it is more logically suited to the agreement. See Roth v. Phillips Petroleum Co., 739 S.W.2d 598, 600 (Mo.App. 1987)." Shawmut Bank Connecticut v. Conn. Limousine Serv., 40 Conn.App. 268, 273, 670 A.2d 880 (1996). While it is likely that both of the parties intended the result sought by the plaintiff, the court cannot find that by clear and convincing evidence. In this case, reformation does not lie.
The court having found unilateral mistake must consider alternative remedies. "Unilateral mistake, while never a ground for reformation, may under certain circumstances justify the rescission of a contract." Bascetta v. Bascetta, 1 Conn.App. 256, 259, 470 A.2d 1232 (1984). It would be inequitable to leave the plaintiff in the position that the agreement has left her, the owner apparently of half of only one of the retirement vehicles. If the court rescinds the contract, the parties are left where they were immediately before signing the ambiguous agreement. They would then have the choice of a trial on the merits or coming to an agreement that, hopefully with clarity, expresses the intent and agreement of both parties.
The court grants the Motion to Open and rescinds the agreement between the parties. The parties are ordered to appear at a status conference in Courtroom 3E on March 11, 2005 at 9:30 a.m. It is so ordered.
Monro, J.