Opinion
NNHFA166061997
10-05-2017
Mohan Sreenivasan v. Alicia Sreenivasan
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO OPEN (#202)
Karen Goodrow, J.
I. Procedural History
This dissolution action went to judgment on March 7, 2017. The Court (Emons, J.) incorporated the parties' separation agreement into the judgment. The parties were represented at the dissolution hearing by counsel. Multiple postjudgment motions have been filed. On September 26, 2017, a hearing was held on the defendant's Motion to Open (#202). The parties were represented by counsel, and each party presented evidence.
The defendant moves the judgment be opened based on good cause, and alternatively, based on fraud. The essence of the defendant's claim is that the plaintiff failed to disclose on his financial affidavit his then-pending civil lawsuit, and failed to value same. Defendant argues that good cause exists to open the judgment because the dissolution court was unable to make an accurate determination of whether or not the parties' dissolution agreement was fair and equitable based on the fact that the plaintiff's financial affidavit was not accurate in that it did not reflect the pending lawsuit or its value. Alternatively, the defendant argues that the motion to open should be granted based on fraud in that the plaintiff intentionally failed to include the pending lawsuit on his financial affidavit. The plaintiff objects to the judgment being opened. He asserts, in essence, that his failure to include the civil lawsuit on his financial affidavit was a mistake or inadvertent oversight, and that the defendant was aware of the existence of the lawsuit prior to the dissolution judgment.
II. Facts
Based upon a careful consideration of all of the evidence, and a review of the file and record, having afforded appropriate weight and credibility to the testimony of the witnesses and to the evidence, the court finds the following facts by a preponderance of the evidence.
The parties entered into a written dissolution agreement on March 7, 2017, the day the dissolution judgment entered. The initial agreement (Pleading #150) was originally rejected by the Court (Emons, J.); the subsequent agreement (Pleading #151) was accepted by the Court (Emons, J.). This Court takes judicial notice of the uncontested dissolution proceeding on March 7, 2017 (Emons, J.). The parties were represented by counsel at the dissolution hearing, both signed the dissolution agreement, and both submitted financial affidavits. Plaintiff's financial affidavit is pleading #154; defendant's financial affidavit is #155. At the dissolution hearing, both parties testified under oath that they believed the agreement was fair. The court reviewed the financial affidavits and agreement (#151), including the parenting plan. The court found the agreement and parenting plan to be fair and equitable to the parties, and in the best interest of the minor child, and incorporated the agreement into the dissolution judgment.
The parties consented to this Court listening to the proceeding before the dissolution court on March 7, 2017 through the use of the program For The Record (FTR).
Paragraph 7.2 of the parties' dissolution agreement states that " the parties shall retain their respective interest in their pending third-party civil suits free of any claims from each other." Although the plaintiff was questioned during the dissolution proceeding by his attorney about the salient portions of the agreement, he was not asked specifically about Paragraph 7.2. The defendant was asked by her attorney essentially whether she would have answered the questions put to the plaintiff in the same manner as plaintiff had answered, and she responded affirmatively. She was not specifically questioned about Paragraph 7.2. At the time of the dissolution, the plaintiff had a civil lawsuit pending. The plaintiff did not list his then-pending civil suit on his financial affidavit.
The plaintiff testified credibly at the hearing on the Motion to Open Judgment that at the time of the dissolution, he did not know the value of the lawsuit. He ultimately received a total settlement of approximately $105,000 after the dissolution entered, sometime between April and June 2017. The plaintiff paid the bulk of his outstanding medical bills from the settlement, which bills totaled approximately $50,000 to $60,000. The plaintiff testified credibly that the defendant was aware of plaintiff's 2014 civil lawsuits in which plaintiff was seeking money damages, one arising from a motor vehicle accident, and one arising from a fall on premises. The plaintiff testified credibly that the defendant helped the plaintiff draft demand letters, and took the plaintiff to the hospital for surgery related to the premises case, which case was pending at the time of the dissolution. The plaintiff received a settlement prior to the dissolution on the case involving the motor vehicle. The defendant also had her own civil lawsuit, which she settled prior to the dissolution. The Court shall set forth additional facts as is necessary to its analysis.
The fact that the defendant did not reveal the value of the lawsuit to the Court or to the defendant, Defendant's Exhibit B at page 30, does not negate the plaintiff's credible testimony that he did not know the value of the lawsuit at the time of the dissolution.
The civil suit was withdrawn shortly after the dissolution judgment.
III. Discussion
The defendant requests that the judgment be opened pursuant to Practice Book 17-4, which allows for the judgment to be set aside when a motion to open is filed within four months of the date on which judgment was rendered. The defendant's Motion to Open was filed within four months of the judgment. The defendant argues that the judgment should be opened for good cause based on the plaintiff's failure to disclose and value his then-pending civil lawsuit. Alternatively, the defendant argues that the judgment should be opened based on fraud. The Court denies the Motion to Open Judgment, finding good cause does not exist to open the judgment. The Court further finds that the defendant has not proven fraud by clear and convincing evidence, therefore, the Motion to Open Judgment based on fraud is also denied.
C.G.S. 52-212a also provides authority for opening judgments when a motion to open is filed within four months of judgment, and mirrors the essential language of P.B. 17-4.
" 'Pursuant to General Statutes Section 52-212a, 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 . . . An exception to the four month limitation applies, however, if a party can show, inter alia, that the judgment was obtained by fraud.' (Internal quotation marks omitted.)" Sousa v. Sousa, 173 Conn.App. 755, 164 A.3d 702 (2017), citing Zilkha v. Zilkha, 159 Conn.App. 167, 174, 123 A.3d 439 (2015).
The moving party alleging fraud bears the burden of proving fraud by clear and convincing evidence. In order to establish fraud, the plaintiff must prove that: (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. Reville v. Reville, 312 Conn. 428, 441, 93 A.3d 1076 (2014), citing Weinstein v. Weinstein, 275 Conn. 671, 685, 882 A.2d 53 (2005). This Court credits the testimony of the plaintiff and finds that his inadvertent failure to include and/or value his then-pending civil suit on his financial affidavit was not intended as a false representation. Further, the inadvertent failure to include the civil suit on the financial affidavit was not made with the intent of inducing the defendant's reliance thereon. Additionally, the evidence did not support a finding that the defendant relied on the representation to her detriment.
In Terry v. Terry, 102 Conn.App. 215, 925 A.2d 375 (2007), the Appellate Court affirmed the trial court's denial of a Motion to Open Judgment under circumstances similar to this case. The court rejected the defendant's Motion to Open based on fraud or mutual mistake where the plaintiff received a postjudgment award for a civil suit which was pending at the time of the dissolution, but which was not included in the plaintiff's financial affidavit. Similar to the instant case, the circumstances which led to the civil suit in Terry v. Terry arose after the marriage but before the dissolution judgment. The court rejected the argument of fraud or mistake, in essence, because the defendant was aware of the civil suit prior to the entry of the dissolution judgment. The court reasoned that " [a]lthough this lawsuit was instituted [prior to judgment] and was not listed as an asset on the plaintiff's financial affidavit . . . the defendant had knowledge of the pending lawsuit and although no value could be ascribed to the lawsuit at the time, [the] defendant could have requested an order for a percentage of any proceeds that might be recovered." (Internal quotations omitted.) Terry v. Terry, 102 Conn.App. at 221.
In Terry v. Terry, although the plaintiff believed at the time of dissolution judgment that the civil lawsuit had no value, she ultimately received an award of $2.5 million through a stipulated judgment.
This Court credited the testimony of the plaintiff that he made the defendant aware of the pending lawsuit prior to the dissolution judgment. The Court finds that the defendant was aware of the civil suit in spite of the fact that it was not listed on the plaintiff's affidavit, and finds that on the date of dissolution, the plaintiff was not aware of the value of the suit. Moreover, the dissolution agreement provided that the parties would retain their interest in their respective lawsuits. As in Terry, the defendant could have requested an order for a percentage of any proceeds that might be recovered. Instead, the defendant entered into a written dissolution agreement with the assistance of counsel, which agreement provided that the parties would retain their interest in their civil suits, free of any claim from the other. Similarly, in Sousa v. Sousa, supra, the Connecticut Supreme Court found that the party's failure to list accurately his pension amount on his financial affidavit did not constitute fraud. 173 Conn.App. 755, 164 A.3d 702.
The defendant further argues that the failure of the plaintiff to include the lawsuit on his financial affidavit prevented the dissolution court from complying with its statutory obligation under C.G.S. 46b-66(a) to determine whether or not the agreement of the parties was fair and equitable. This Court does not agree. The record from the uncontested dissolution proceeding demonstrates that the defendant entered into the agreement knowingly, understood the terms of the agreement, was canvassed by her lawyer as well as the court, and had had the opportunity to thoroughly review the terms of the agreement with her lawyer. In a decision released today, the Appellate Court rejected a related argument that the trial court's canvass regarding an oral agreement of the parties was inadequate pursuant to C.G.S. 46b-66. Puff v. Puff, 177 Conn.App. 103, (2017).
IV. Order
The Court has considered the evidence and the applicable law. The Motion to Open Judgment is denied.