Opinion
FSTFA094016937S
08-07-2017
Gad Lavy v. Michele Brown Lavy
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON DEFENDANT'S AMENDED MOTION TO OPEN JUDGMENT, POSTJUDGMENT
Donna Nelson Heller, J.
The plaintiff Gad Lavy (Dr. Lavy) and the defendant Michele Brown Lavy, now known as Michele Brown (Dr. Brown), were divorced on June 14, 2011. The judgment of dissolution (Novack, J.T.R.) (#263.55) incorporated by reference the parties' separation agreement, dated June 14, 2011 (the June 2011 separation agreement) (#262.00).
On August 9, 2011, Dr. Brown filed a motion to open and reform the judgment, postjudgment (the original motion to open) pursuant to Article XXI of the June 2011 separation agreement, discussed more fully below (#266.01). She submitted a memorandum of law in support of the original motion to open on September 9, 2011 (#269.00). Dr. Brown sought to open the dissolution judgment on the ground that Dr. Lavy had failed to disclose a condominium in Israel on the financial affidavit that he provided to Dr. Brown on June 14, 2011, in advance of the uncontested hearing and the entry of the dissolution judgment (#258.00).
In response to the original motion to open, Dr. Lavy filed a motion to dismiss (#270.00), which was withdrawn on September 27, 2011 (#274.00). Dr. Lavy next filed a motion to strike (#275.00), which was denied on November 30, 2011 (Malone, J.) (#284.00). He also filed a request to revise (#277.00), which was denied on November 14, 2011 (Malone, J.).
On December 15, 2011, Dr. Brown filed an amended motion to open and reform the judgment, postjudgment (the amended motion to open) and a supporting memorandum of law (#285.00; #286.00). The amended motion to open incorporated the original motion to open and added allegations that, in addition to the condominium in Israel, Dr. Lavy failed to disclose an account at First Niagara Bank on his June 14, 2011 financial affidavit.
On November 5, 2012, the parties entered into a stipulation, which was approved and so ordered by the court (Emons, J.), to open the dissolution judgment for the limited purpose of conducting discovery (#292.00). The stipulation expressly provided that it was not an admission of any misrepresentation or fraud on the part of either party with respect to the representations made at the time the dissolution judgment was entered.
Subsection (a) of paragraph 21.2 of the June 2011 separation agreement provides that " [i]f either party is able to substantiate an allegation of fraud beyond mere suspicion that either of them failed to disclose assets on their financial affidavit, either domestic or international, then the Court shall open the judgment for the limited purpose of discovery . . ."
Dr. Brown sought attorneys fees in the original motion to open and in the amended motion to open. On June 15, 2016, Dr. Lavy filed a motion for counsel fees, postjudgment (#313.00) in connection with this proceeding.
The parties, both of whom were represented by counsel, were before the court on November 16 and 17, 2016 for a hearing on the original motion to open and the amended motion to open, including Dr. Brown's request for attorneys fees, and Dr. Lavy's motion for counsel fees, postjudgment. The court heard testimony from five witnesses: Dr. Brown; Dr. Lavy; Kimberly Groves (Ms. Groves), Dr. Brown's office manager; Eric Higgins, Esq. (Attorney Higgins), Dr. Brown's attorney; and John Ekberg, Esq. (Attorney Ekberg), Dr. Lavy's former counsel. Excerpts from the October 11, 2012 deposition testimony of Yoram Hacohen, Esq. (Attorney Hacohen), an Israeli real estate attorney retained as an expert on behalf of Dr. Brown, were also read into the record. The court reviewed the exhibits that were admitted into evidence, including the affidavits of attorneys fees submitted by both parties, took judicial notice of the contents of the court file, and reserved decision at that time.
The affidavits of attorneys fees submitted by Dr. Brown's counsel were admitted into evidence as Defendant's Exhibits P and Q. The fee affidavits of Dr. Lavy's attorneys and related billing statements were admitted into evidence as Plaintiff's Exhibits 4, 5, and 6.
The parties filed post-trial memoranda on January 19, 2017 (#320.00; #321.00). They submitted reply memoranda on February 3, 2017 (#323.00; #324.00). On February 2, 2017, Dr. Brown filed a motion for oral argument (#322.00), which was granted by the court (#322.01).
Dr. Brown renewed her motion for oral argument on February 14, 2017 (#325.00).
Counsel for the parties were before the court on April 11, 2017 for further argument on the pending motions and the parties' applications for attorneys fees. Dr. Brown was also present at that time. Her counsel submitted an updated affidavit of attorneys fees during the hearing. Dr. Lavy's counsel filed an updated affidavit of attorneys fees on April 24, 2017 (#326.00).
I
After considering all of the testimony and documentary evidence admitted and the contents of the court file judicially noticed, and having had the opportunity to observe the witnesses, the court makes the following findings of fact.
The Jerusalem property : Dr. Lavy was the owner of record of a condominium apartment and storeroom located at 20 Gelber Street in Jerusalem, Israel (the Jerusalem property) on June 14, 2011, the date of entry of the dissolution judgment. The Jerusalem property was not disclosed as an asset on Dr. Lavy's June 14, 2011 financial affidavit. Dr. Lavy only reported the marital residence in Westport, Connecticut, which had an appraised value of $1,650,000; an apartment in Umbria, Italy, with an appraised value of $230,296; and an unimproved lot in Vieques, Puerto Rico, with an appraised value of $234,000, on his financial affidavit. Dr. Lavy testified that he did not include the Jerusalem property because he did not know that he owned the property at that time. The court does not credit Dr. Lavy's testimony in this regard.
The Jerusalem property had been conveyed to Dr. Lavy by his brother for no consideration. The title abstract that shows the conveyance of the Jerusalem property to Dr. Lavy was recorded in the Jerusalem land registry on January 27, 1999.
Attorney Hacohen, Dr. Brown's Israeli real estate expert, testified that a number of documents must be signed by the grantee in connection with a conveyance for no consideration in Israel, including an agreement between the parties, an affidavit, a transfer deed, and a tax declaration, before the conveyance is recorded. As he explained, conveyance taxes at a reduced rate are required to be paid on a sale of property for no consideration between relatives. The court credits Attorney Hacohen's testimony.
The title abstract reflects Dr. Lavy's Israeli identification number. The signatures on the title abstract are not dated. Dr. Lavy was in Israel in 1998, about six months before the title abstract was recorded. He was not in Israel on January 27, 1999, the date of recording.
Dr. Lavy testified that his signature was not on the document transferring the Jerusalem property from his brother's name to his name. He denied giving anyone a power of attorney to sign his name on the document. He said that he believed that his brother owned the Jerusalem property as of the date the dissolution judgment was entered.
Dr. Lavy was familiar with the Jerusalem property. He lived there while he was in medical school in the mid to late 1970s. Dr. Lavy believed that the Jerusalem property was worth approximately 500, 000 Israeli shekels in the 2011 time frame, based on an appraisal of the Jerusalem property that he had received about three months after the dissolution judgment was entered. He testified that he did not know whether the value of the Jerusalem property had changed significantly during that time. No other evidence was offered by either party as to the value of the Jerusalem property. Accordingly, the court credits Dr. Lavy's testimony with respect to the value of the Jerusalem property.
The exchange rate for converting Israeli shekels to United States dollars as of the date of the dissolution judgment was 3.41578 shekels per dollar. The fair market value of the Jerusalem property in United States dollars was $146,379 at that time.
Dr. Lavy's real estate assets were valued at $1,815,873, including the marital residence in Westport, with an appraised value of $1,650,000, on his June 14, 2011 financial affidavit. The Jerusalem property would have represented approximately 7.5 percent of the total real estate assets disclosed--and approximately 24 percent of the real estate assets exclusive of the marital residence--if it had been reflected on Dr. Lavy's June 14, 2011 financial affidavit. The court finds that Dr. Lavy's failure to disclose the Jerusalem property on his June 14, 2011 financial affidavit was a material omission.
The Jerusalem property came to Dr. Brown's attention as a result of her efforts to locate property that was owned by Dr. Lavy in Israel. Dr. Brown testified that in early 2011 she and her counsel in the dissolution action had retained an attorney in Israel to find out whether Dr. Lavy owned any property there. That attorney engaged a private investigator, who advised them that Dr. Lavy did not own any real property in Israel. Shortly before the uncontested dissolution hearing, however, Dr. Brown's boyfriend, who was also a lawyer, hired a different attorney in Israel. That attorney reported that Dr. Lavy owned a condominium in Jerusalem and forwarded a copy of a document from the land records.
Despite the conflicting, unverified reports that she had received regarding a possible asset belonging to Dr. Lavy that he had not disclosed, Dr. Brown determined to proceed with the uncontested dissolution hearing on June 14, 2011. She explained that she did so because of the tremendous distrust and acrimony that existed between the parties at that time. She was afraid that if she did not go ahead with the uncontested divorce in June 2011, that Dr. Lavy would deny her a get--a divorce under Jewish religious law--and thus prevent her from remarrying in the Jewish faith. She also believed that she would have recourse under Article XXI of the June 2011 separation agreement if she later established that Dr. Lavy owned property in Israel which was not reflected on his June 14, 2011 financial affidavit. The court credits Dr. Brown's testimony.
The First Niagara account : Dr. Lavy was the owner of account No. x_4068 at First Niagara Bank, formerly known as NewAlliance Bank (the First Niagara account) on June 14, 2011, the date of entry of the dissolution judgment. Dr. Lavy did not disclose the First Niagara account on his June 14, 2011 financial affidavit. He said that he did not know that the account existed. The court does not credit Dr. Lavy's testimony in this regard.
The First Niagara account was opened in July 2008 with an initial deposit of $89,146.50. Dr. Brown originally funded the First Niagara account with money from her office. She testified that she was concerned about bank failures during the 2008 financial crisis, so she moved money from her practice into several different bank accounts in order to keep the funds deposited in each account below the maximum amount insured by the FDIC. Dr. Brown did not deposit any money into the First Niagara account after she made the initial deposit in July 2008. She did not make any withdrawals or have anything to do with the account after it was opened.
The First Niagara account was opened in Dr. Lavy's name, in trust for the parties' son David Lavy. Dr. Lavy signed the original document to open the account in two places. He confirmed that the signature on the document was his, but he said that he did not recall the account being opened. The bank used Dr. Brown's office address, rather than Dr. Lavy's address, as the depositor's address when the account was opened in 2008. Dr. Lavy and Dr. Brown both had offices on Summer Street in Stamford at that time. The account opening document also contained the name of the parties' son and the address of the marital residence in Westport. Dr. Brown did not sign the document.
Dr. Lavy's name, but with Dr. Brown's office address, was also on the account statements. According to Dr. Brown and her office manager, Ms. Groves, statements for the First Niagara account were not received at Dr. Brown's office address. The bank also sent an Internal Revenue Service Form 1099 for the year 2011 to Dr. Lavy, at Dr. Brown's office address, which was not delivered to Dr. Brown's office.
From July 2008, when the First Niagara account was opened, through the parties' divorce in June 2011, Dr. Brown's office was at 999 Summer Street, Suite 302, and Dr. Lavy's office was two buildings away, at 1275 Summer Street, in Stamford. Counsel for Dr. Brown suggested that the First Niagara account statements and Form 1099s were simply delivered to Dr. Lavy at his office on the same street. Dr. Lavy denied receiving the First Niagara account statements or any Form 1099s from the bank.
As of the date of entry of the dissolution judgment, Dr. Brown was not aware that the First Niagara account still existed. She first learned that the First Niagara account remained open when an escheat letter from the bank arrived at her office in November 2011. The letter, dated November 14, 2011, was a letter to Dr. Lavy at Dr. Brown's office address. The court credits Dr. Brown's testimony.
The balance in the First Niagara account as of April 28, 2011 was $92,432. After Dr. Brown served the amended motion to open, Dr. Lavy withdrew all of the funds from the First Niagara account and transferred the money to his account. He closed the First Niagara account at that time.
Dr. Lavy disclosed three savings accounts, with a total balance of $60,224, and two checking accounts, with a total balance of $119,695, on his June 14, 2011 financial affidavit. If Dr. Lavy had included the First Niagara account on his financial affidavit, it would have represented 34 percent of the total value of the bank accounts that he reported at that time. The court finds that Dr. Lavy's failure to disclose the First Niagara account on his June 14, 2011 financial affidavit was a material omission.
II
In paragraph 21.1 of the June 2011 separation agreement, Dr. Lavy and Dr. Brown acknowledged that their respective June 14, 2011 financial affidavits were true and accurate, and that " [t]he terms and financial arrangements set forth in [the] Agreement were made based upon the representations made in said affidavits and both parties relied upon the facts set forth [therein]." Each of them represented that there had been no substantial change in circumstances since the date of his or her financial affidavit, and that the affidavit " fully, fairly and accurately [set] forth the existing assets, liabilities, and income of the [party]." Dr. Lavy and Dr. Brown further represented to each other that " they do not own any other assets nor are any assets being held by a third party for the benefit of either the Husband or the Wife, except those described and divided under the terms of this agreement and the parties' respective financial affidavits." They acknowledged that " each [had] a fiduciary duty to the other to make a full and fair disclosure of his or her financial circumstances, including all assets, to the other in connection with this proceeding."
The last sentence of paragraph 21.1 provides that " [i]n the event of a material omission or misstatement by either party in his or her affidavit, the other party shall have the right to rescind this Agreement and reopen and reform any judgment entered in the pending action incorporating the terms hereof." Dr. Brown contends that Dr. Lavy's June 14, 2011 financial affidavit did not accurately set forth his assets because it did not disclose the Jerusalem property or the First Niagara account. As a result of these omissions, Dr. Brown claims that she has the right to rescind the June 2011 separation agreement and reopen and reform the dissolution judgment pursuant to paragraph 21.1 of the agreement.
III
" Courts have an inherent power to open, correct and modify judgments . . . A civil judgment of the Superior Court may be opened if a motion to open or set aside is filed within four months of the issuance of judgment." (Citation omitted; internal quotation marks omitted.) Martin v. Martin, 99 Conn.App. 145, 155, 913 A.2d 451 (2007). " 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." (Citations omitted; internal quotation marks omitted.) Fitzsimons v. Fitzsimons, 116 Conn.App. 449, 454-55, 975 A.2d 729 (2009).
" The provisions of § 52-212a do not operate to strip the court of its jurisdiction over its judgments, but merely operate to limit the time period in which a court may exercise its substantive authority to adjudicate the merits of a case." (Citation omitted.) Bridgeport v. Triple 9 of Broad Street, Inc., 87 Conn.App. 735, 744, 867 A.2d 851 (2005). The purpose of this limitation stems " from the common-law rule concerning jurisdiction over the parties. In the interest of the public as well as that of the parties there [must] be fixed a time after the expiration of which the controversy is to be regarded as settled and the parties freed of obligations to act further by virtue of having been summoned into or having appeared in the case . . . Without such a rule, no judgment could be relied on. Such uncertainty and instability in legal relations which have apparently been finally adjudicated does not commend itself as orderly judicial procedure." (Citations omitted; internal quotation marks omitted.) R.S. Silver Enterprises, Inc. v. Pascarella, Superior Court, judicial district of Stamford/Norwalk, Docket No. FST-CV-06-5002499-S, (Sept. 24, 2015, Lee, J.).
" Section 52-212a does not abrogate the court's common-law authority to open a judgment beyond the four month limitation upon a showing that the judgment was obtained by fraud, duress or mutual mistake . . . The common-law reasons for opening a judgment seek to preserve fairness and equity." (Internal quotation marks omitted.) Bruno v. Bruno, 146 Conn.App. 214, 230, 76 A.3d 725 (2013). The parties may also waive the four-month time limitation or otherwise submit to the court's jurisdiction. General Statutes § 52-212a; Practice Book § 17-4(a).
Whether the court has subject matter jurisdiction to open a judgment, however, " is a question of law and cannot be waived or conferred by consent . . ." (Internal quotation marks omitted.) Tooley v. Metro-North Commuter Railroad Co., 58 Conn.App. 485, 493, 755 A.2d 270, 275 (2000). " [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The subject matter jurisdiction requirement may not be waived by any party . . ." (Citation omitted; internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 531-32, 46 A.3d 102 (2012).
Dr. Brown filed the original motion to open on August 11, 2011, less than four months after the dissolution judgment was entered and thus within the time period set forth in General Statutes § 52-212a and Practice Book § 17-4(a). Dr. Lavy does not contest the timeliness of the original motion to open. Dr. Brown filed the amended motion to open on December 15, 2011, which was outside the four-month time limitation. Dr. Lavy contends that the court lacks subject matter jurisdiction to open the dissolution judgment with respect to the First Niagara account unless Dr. Brown is able to demonstrate that the judgment was the result of fraud, duress or mutual mistake.
In response, Dr. Brown maintains that the amended motion to open simply added another claim for relief to the original motion to open-Dr. Lavy's failure to disclose the First Niagara account-after the parties had stipulated to open the judgment in order to conduct discovery. She also claims that Dr. Lavy waived any objection to the court's authority by actively contesting the original motion to open and the amended motion to open. The court will address each of these arguments below.
A
Before turning to the merits of the parties' claims, the court must first determine whether the amended motion to open implicates the court's subject matter jurisdiction. " Connecticut's case law is in conflict regarding whether the modification of a property distribution postdissolution implicates the court's subject matter jurisdiction or merely its statutory authority." (Internal quotation marks omitted.) Sousa v. Sousa, 322 Conn. 757, 777, 143 A.3d 578 (2016). The issue of whether the court has subject matter jurisdiction to open a dissolution judgment after the expiration of the four-month time period, absent a finding of fraud, is now before our Supreme Court. On May 4, 2016, the court granted a petition for certification to appeal from the Appellate Court's decision in Reinke v. Sing, 162 Conn.App. 674, 133 A.3d 501 (2016) (per curiam), limited to the following issue: " Did the Appellate Court correctly determine that, in the absence of a finding of fraud, the trial court lacked subject matter jurisdiction to open the parties' judgment of dissolution of their marriage?" Reinke v. Sing, 321 Conn. 911, 912, 136 A.3d 644 (2016); see also Sousa v. Sousa, 322 Conn. 757, 780 n.16, 143 A.3d 578 (2016).
In Reinke, supra, the trial court granted the motion to open by agreement of the parties, without making a finding of fraud. Reinke v. Sing, Superior Court, judicial district of Stamford/Norwalk, Docket No. FST-FA-06-4008927-S, (Aug. 23, 2013, Shay, J.), reversed, 162 Conn.App. 674, 133 A.3d 501, cert. granted, 321 Conn. 911, 912, 136 A.3d 644 (2016). Following a trial, the court found that the defendant's income had been twice the amount disclosed when the original dissolution judgment was entered; the defendant had underreported the value of his investment and retirement funds, his life insurance, and an anticipated tax refund; and the defendant had underreported the value of the plaintiff's interest in a condominium. As a result of these findings, the court modified the alimony award and the property distribution set forth in the original dissolution judgment. The court changed the amount and term of the alimony award, altered the amounts that the defendant was to pay to the plaintiff with respect to marital assets and retirement accounts, and awarded attorneys fees to the plaintiff. Our Appellate Court reversed the trial court, and our Supreme Court granted certification thereafter.
The court issued corrections to its memorandum of decision on September 27, 2013.
In this case, as in Reinke, one party is claiming that the other party failed to fully and fairly disclose his assets at the time the dissolution judgment was entered. Here, however, Dr. Lavy is alleged to have failed to disclose his assets fully and fairly because he omitted two assets entirelym--he did not simply misrepresent their value, as the defendant was found to have done in Reinke . This is an important distinction, because the June 2011 separation agreement, incorporated by reference in the dissolution judgment, does not specifically reference either the Jerusalem property or the First Niagara account or include them in the equitable distribution of the marital estate. Instead, the undisclosed assets of either party are addressed in Article XXI of the June 2011 separation agreement, which provides a specific process for distributing any assets that are discovered after the entry of the dissolution judgment.
" Although the court does not have the authority to modify a property assignment, a court, after distributing property, which includes assigning the debts and liabilities of the parties, does have the authority to issue postjudgment orders effectuating its judgment." (Citations omitted; footnote omitted; internal quotation marks omitted.) Roos v. Roos, 84 Conn.App. 415, 421-22, 853 A.2d 642, cert. denied, 271 Conn. 936, 861 A.2d 510 (2004). " [I]t is . . . within the equitable powers of the trial court to fashion whatever orders [are] required to protect the integrity of [its original] judgment." (Internal quotation marks omitted.) Santoro v. Santoro, 70 Conn.App. 212, 217, 797 A.2d 592 (2002). As our Appellate Court explained, " [a] modification is [a] change; an alteration or amendment which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact . . . In contrast, an order effectuating an existing judgment allows the court to protect the integrity of its original ruling by ensuring the parties' timely compliance therewith." (Internal quotation marks omitted.) Callahan v. Callahan, 157 Conn.App. 78, 89, 116 A.3d 317, cert. denied, 317 Conn. 913, 914, 116 A.3d 812, 813 (2015). See also Lawrence v. Cords, 165 Conn.App. 473, 485, 139 A.3d 778, 783, cert. denied, 322 Conn. 907, 140 A.3d 221 (2016) (" The defendant contends that because he chose to pay the plaintiff from the proceeds of the sale of the property, the court improperly modified the property distribution by requiring him to pay the plaintiff from his personal assets, which the judgment of dissolution awarded to him and him alone, prior to the sale of the property. We conclude, however, that the court's consideration of, and decision on, the plaintiff's motion for contempt did not alter the terms of the judgment of dissolution, but rather fashioned a remedy appropriate to protect the integrity of its original judgment"). The amended motion to open is not seeking a postjudgment modification of the property distribution--as to which, absent a finding of fraud, the court would lack subject matter jurisdiction under controlling appellate authority; Reinke v. Sing, supra, 162 Conn.App. at 677-78; Forgione v. Forgione, 162 Conn.App. 1, 6-8, 129 A.3d 766 (2015)--but rather an effectuation of the provisions of Article XXI of the June 2011 separation agreement. Therefore, the court finds that the amended motion to open does not implicate the court's subject matter jurisdiction.
B
Dr. Brown contends that the amended motion to open is properly before the court, despite being filed more than four months after the date of entry of the dissolution judgment, because Dr. Lavy waived any objection to the court's authority by actively contesting the original motion to open and the amended motion to open. General Statutes § 52-212a expressly provides that " [t]he parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court . . ." General Statutes § 52-212a; Practice Book § 17-4(a).
The court has taken judicial notice of the contents of the court file in this case. Dr. Brown moved by order to show cause when she filed the original motion to open--entry #266.01 in the court file--on August 9, 2011. The amended motion to open, filed December 15, 2011, was entry #285.00 in the court file. The parties filed thirty-five more pleadings before they submitted their post-hearing memoranda on January 19, 2017.
The court file also reflects that the parties had several court appearances, entered into two stipulations relating to discovery, conducted discovery in the United States and in Israel, and otherwise vigorously litigated the original motion to open and the amended motion to open. It does not appear that Dr. Lavy challenged the timeliness of Dr. Brown's claim relating to the First Niagara account at any time prior to the hearing on November 16, 2016. Accordingly, Dr. Lavy has waived the four-month time limitation set forth in General Statutes § 52-212a and Practice Book § 17-4(a).
C
Dr. Lavy also contends that Dr. Brown's claim regarding the First Niagara account is not an amendment of the original motion to open but an entirely new claim, asserted more than four months after the dissolution judgment was entered. Therefore, according to Dr. Lavy, the amended motion to open cannot stand, absent a showing of fraud, unless it relates back to the original motion to open. The court does not agree.
Dr. Lavy's reliance on the relation back doctrine is misplaced. As our Supreme Court recently explained, " [o]ur relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . . ." (Internal quotation marks omitted.) Briere v. Greater Hartford Orthopedic Group, P.C., 325 Conn. 198, 207, 157 A.3d 70 (2017). The relation back doctrine has no bearing on whether the amended motion to open is properly before the court.
Even if the court were to entertain Dr. Lavy's relation back doctrine argument, it would find that Dr. Brown's First Niagara account claim relates back to the original motion to open and is properly before the court. In the original motion to open, Dr. Brown alleged that " [t]he plaintiff's ownership of the [Jerusalem property], combined with his failure to disclose any means to pay the costs or collect the revenue relating to owning the [Jerusalem property] and the substantial portion of the plaintiff's life that he has lived overseas, establishes a likelihood beyond mere suspicion that the plaintiff has failed to disclose additional assets as yet unknown to the defendant." Dr. Brown asked the court to open the dissolution judgment " in order to allow discovery related to the [Jerusalem property] and any additional assets that the plaintiff failed to disclose and for further proceedings consistent with Oneglia v. Oneglia, 14 Conn.App. 267, 540 A.2d 713 (1988) and Article XXI of the Separation Agreement, including the distribution of previously undisclosed property and an award to the defendant of her reasonable counsel fees and costs." The First Niagara account identified in the amended motion to open was well within the scope of the " additional assets" and " previously undisclosed property" referenced in the original motion.
IV
" Our courts, recognizing the important consideration of finality of judgments, have limited the circumstances in which a court may open a judgment within four months of its rendering to where there is a good and compelling reason for its modification or vacation." (Internal quotation marks omitted.) Callahan v. Callahan, supra, 157 Conn.App. at 88. General Statutes § 52-212a and Practice Book § 17-4 vest discretion in the trial court to determine whether a good and compelling reason exists to modify or vacate a judgment. As the motion to open is an equitable remedy vested in the discretion of the trial court, circumstances that constitute a good and compelling reason will vary depending on the grounds for the motion. See, e.g., Fitzsimons v. Fitzsimons, supra, 116 Conn.App. at 455-56 (" In light of the court's finding, upon reconsideration, that the defendant's conduct in causing the irretrievable breakdown of the parties' marriage should be taken into consideration in the division of the equity in the marital home, we cannot say that awarding the plaintiff an additional 10 percent of that equity was an abuse of the court's discretion").
Dr. Lavy maintains that no good and compelling reason exists to open the dissolution judgment, and the original motion to open and the amended motion to open should be denied, because he did not know that he owned the Jerusalem property or the First Niagara account on June 14, 2011, the date of the dissolution judgment. As discussed above, however, the court does not find Dr. Lavy credible regarding his lack of knowledge of these assets at the time of the parties' divorce. Dr. Lavy also contends that Dr. Brown has " unclean hands, " because she did not alert Dr. Lavy to her suspicion that he had concealed property in Israel prior to entry of the dissolution judgment. According to Dr. Lavy, Dr. Brown is the party who failed to provide the full and frank disclosure mandated in a dissolution proceeding. See Billington v. Billington, 220 Conn. 212, 219-21, 595 A.2d 1377 (1991).
In response, Dr. Brown points out that Article XXI of the June 2011 separation agreement places the risk of nondisclosure on the party who fails to disclose an asset on his or her financial affidavit and provides a remedy for the other party in the event of such a failure to disclose. The court agrees. Dr. Brown was entitled to rely on the truth and accuracy of Dr. Lavy's June 14, 2011 financial affidavit. She had no obligation to exercise due diligence to confirm that Dr. Lavy's representations were indeed as honest and complete as he warranted they would be in the June 2011 separation agreement. See Billington v. Billington, supra, 220 Conn. at 220 (" Thus, the requirement of diligence in discovering fraud is inconsistent with the requirement of full disclosure because it imposes on the innocent injured party the duty to discover that which the wrongdoer already is legally obligated to disclose").
Dr. Brown and Dr. Lavy agreed in Article XXI, paragraph 21.1 of the June 2011 separation agreement that a party would have the right to rescind the agreement and open and reform any judgment in the event of a material omission or misstatement by either party in his or her financial affidavit. Effectuating the provisions of Article XXI of the June 2011 separation agreement is a good and compelling reason to grant the original motion to open and the amended motion to open. The June 14, 2011 dissolution judgment is hereby opened for the purpose of dividing the undisclosed assets--i.e., the Jerusalem property and the First Niagara account--pursuant to paragraph 21.2(b) of the June 2011 separation agreement.
V
Article XXI, paragraph 21.2(b) of the June 2011 separation agreement provides that " [i]n the event there is a court decision to open the judgment after discovery is completed, then all undisclosed asset(s) shall be divided such that the party who failed to disclose shall receive 25% of the value thereof as of the date of the dissolution of marriage and the other party shall receive 75% of the value thereof as of the date of dissolution of marriage." The Jerusalem property had a fair market value of $146,379 on June 14, 2011, the date that the dissolution judgment was entered. The First Niagara account had a balance of $92,432 at or around that time. Dr. Lavy, the party who failed to disclose the Jerusalem property and the First Niagara account at the time of the parties' divorce, is entitled to 25 percent of the value of the Jerusalem property and the First Niagara account as of the date of entry of the dissolution judgment, and Dr. Brown is entitled to 75 percent of the value of the Jerusalem property and the First Niagara account, valued as of that date.
Accordingly, pursuant to paragraph 21.2(b) of the June 2011 separation agreement, Dr. Lavy shall pay to Dr. Brown $109,785, representing 75 percent of the value of the Jerusalem property as of the date of the dissolution judgment, and $69,324, representing 75 percent of the value of the First Niagara account, also as of the date of the dissolution judgment. The total amount due to Dr. Brown from Dr. Lavy under paragraph 21.2(b) of the June 2011 separation agreement is $179,109.
VI
Both parties have sought attorneys fees in connection with the motion to open and the amended motion to open. Under Article XXI, paragraph 21.2(c) of the June 2011 separation agreement, " [i]n the event it is determined by a Court that there was a material omission or misstatement by a party in his or her financial affidavit, then the party who failed to disclose the asset shall be liable for the other party's reasonable legal fees, expert fees, and court costs." Where a contract provides for recovery of attorneys fees by a prevailing party, those fees are recoverable solely as a contract right and not as damages. Litton Industries Credit Corp. v. Catanuto, 175 Conn. 69, 76, 394 A.2d 191 (1978). " A contract clause providing for reimbursement of 'incurred' fees permits recovery [of such fees] upon the presentation of an attorney's bill, so long as that bill is not unreasonable upon its face and has not been shown to be unreasonable by countervailing evidence or by exercise of the trier's own expert judgment." (Internal quotation marks omitted.) Vespoli v. Pagliarulo, 212 Conn. 1, 5-6, 560 A.2d 980 (1989).
As discussed above, the court has found that Dr. Lavy's failure to disclose the Jerusalem property and the First Niagara account as assets on his June 14, 2011 financial affidavit were material omissions from his financial affidavit. Therefore, Dr. Lavy is liable for Dr. Brown's reasonable attorneys fees, expert fees, and court costs under paragraph 21.2(c) of the June 2011 separation agreement.
While he does not contest the reasonableness of the hourly rates charged by Dr. Brown's counsel, Dr. Lavy contends that the attorneys fees incurred by Dr. Brown were unreasonably high, given the nature of the dispute and the amount in controversy. The court does not agree. The court has carefully considered the fee affidavits submitted by counsel for both parties, the contents of the court file, and the arguments of counsel in the parties' post-trial memoranda and Dr. Brown's motions for oral argument (#322.00; #325.00), as well as during the hearing on November 16 and 17, 2016 and April 11, 2017, in awarding attorneys fees and costs to Dr. Brown.
Dr. Brown has been represented by the law firm of Wofsey, Rosen, Kweskin & Kuriansky, LLP (the Wofsey, Rosen firm) since June 22, 2011, following the entry of the dissolution judgment. The Wofsey, Rosen firm devoted 495.80 hours to this matter during the time period June 22, 2011 to February 15, 2017. The court finds the billing rates charged by the Wofsey, Rosen firm between June 2011 and February 2017 to be reasonable. The court also finds that the attorneys fees and costs charged to Dr. Brown, in the amount of $180,718.11 and $13,405.65, respectively, to be reasonable in view of the claims asserted and the defenses raised in this highly contested postjudgment proceeding. Accordingly, Dr. Brown is entitled to recover these fees and costs from Dr. Lavy pursuant to paragraph 21.2(c) of the June 2011 separation agreement.
Dr. Lavy filed a motion for attorneys fees on June 15, 2016 (#313.00). He provided affidavits from his counsel for the fees and expenses he incurred from and after April 25, 2012. The court finds that Dr. Lavy is not entitled to recover any of his attorneys fees and costs from Dr. Brown under paragraph 21.2(c) of the June 2011 separation agreement. Dr. Lavy's motion for attorneys fees, postjudgment is, therefore, denied.
VII
Dr. Brown seeks an award of prejudgment interest at an annual rate of 10 percent pursuant to General Statutes § 37-3a from June 14, 2011 to date for Dr. Lavy's wrongful detention of Dr. Brown's share of the undisclosed assets-the Jerusalem property and the First Niagara account. " The allowance of prejudgment interest as an element of damages is an equitable determination and a matter lying within the discretion of the trial court . . . Before awarding interest, the trial court must ascertain whether the defendant has wrongfully detained money damages due the plaintiff . . . Interest on such damages ordinarily begins to run from the time it is due and payable to the plaintiff . . . The determination of whether or not interest is to be recognized as a proper element of damage, is one to be made in view of the demands of justice rather than through the application of an arbitrary rule." (Internal quotation marks omitted.) Killion v. Davis, 69 Conn.App. 366, 375, 793 A.2d 1237, cert. denied, 260 Conn. 931, 799 A.2d 295 (2002). " [P]rejudgment interest is to be awarded if, in the discretion of the trier of fact, equitable considerations deem that it is warranted." (Internal quotation marks omitted.) Hoye v. DeWolfe Co., 61 Conn.App. 558, 564, 764 A.2d 1269 (2001).
" [U]nder § 37-3a, proof of wrongfulness is not required above and beyond proof of the underlying legal claim . . . In other words, the wrongful detention standard of § 37-3a is satisfied by proof of the underlying legal claim, a requirement that is met once the plaintiff obtains a judgment in his favor on that claim . . . In fact, an award of interest under § 37-3a . . . is discretionary with the trial court. Interest is awarded . . . when the court determines that such an award is appropriate to compensate the plaintiff for the loss of the use of his or her money. Basically, the question is whether the interests of justice require the allowance of interest as damages for the loss of use of money." (Internal quotation marks omitted.) DiLieto v. County Obstetrics & Gynecology Group, P.C., 310 Conn. 38, 52-54, 74 A.3d 1212 (2013). " [P]rejudgment interest is awarded in the discretion of the trial court to compensate the prevailing party for a delay in obtaining money that rightfully belongs to him." (Internal quotation marks omitted.) Northrop v. Allstate Insurance Co., 247 Conn. 242, 254-55, 720 A.2d 879 (1998).
Dr. Lavy represented to Dr. Brown in the June 2011 separation agreement that he had fully and fairly disclosed all of his assets on his June 14, 2011 financial affidavit. That statement was untrue, because Dr. Lavy did not disclose the Jerusalem property or the First Niagara account at that time. Thus, from June 14, 2011, the date of entry of the dissolution judgment, to date, Dr. Lavy has wrongfully detained Dr. Brown's share of these undisclosed assets, in the total amount of $179,109.
Dr. Brown asks that the court award her prejudgment interest on her share of the undisclosed assets at an annual rate of 10 percent. The court has taken judicial notice that the current prime rate, according to the Wall Street Journal, is 4.25 percent. The court finds that an award of prejudgment interest at an annual rate of 5 percent is fair and equitable here.
Accordingly, the court awards prejudgment interest pursuant to General Statutes § 37-3a on the principal amount of the award against Dr. Lavy at an annual rate of 5 percent from June 14, 2011 to the date of this decision. At a per diem of $24.54 for a period of 2, 247 days, the total amount of prejudgment interest awarded is $55,141.
VIII
The court has fully considered the applicable statutes and Practice Book rules, the relevant case law, the evidence, the demeanor and the credibility of the witnesses, and the contents of the court file, in making the findings set forth above and in reaching the decisions reflected in the orders that issue below.
1. The motion of the defendant Michele Brown Lavy to open and reform the judgment, postjudgment (#266.01) is hereby GRANTED;
2. The amended motion of the defendant Michele Brown Lavy to open and reform the judgment, postjudgment (#285.00) is hereby GRANTED; and
3. It is further ORDERED that the plaintiff Gad Lavy shall pay to the defendant Michele Brown Lavy the amount of $179,109 pursuant to Article XXI of the June 2011 separation agreement.
4. Prejudgment interest is awarded to the defendant Michele Brown Lavy pursuant to General Statutes § 37-3a on the principal amount of the award against the plaintiff Gad Lavy at the annual rate of 5 percent from June 14, 2011 to the date of this decision. At a per diem of $24.54 for a period of 2, 247 days, the total amount of prejudgment interest awarded is $55,141.
5. Attorneys fees and costs are awarded to the defendant Michele Brown Lavy pursuant to paragraph 21.2(c) of the June 2011 separation agreement in the amount of $180,718.11 and $13,405.65, respectively.
6. The motion of the plaintiff Gad Lavy for attorneys fees (#313.00) is hereby denied.