Opinion
No. FA 04-4002471S
October 3, 2006
MEMORANDUM OF DECISION ON DEFENDANT'S POST-JUDGMENT MOTION TO OPEN AND MODIFY (#119)
The parties originally appeared before this court on June 13, 2006 for hearing on two post-judgment motions, plaintiff's motion for contempt #117 and defendant's motion to open #119. The plaintiff claims that the defendant owes alimony and child support payments between the date of judgment and when the court-ordered wage execution later went into effect and that he also stopped paying for her car insurance in violation of the judgment. The defendant, on the other hand, claims that the court should open judgment on the grounds of mutual mistake because the parties inadvertently failed to specify or divide certain assets in their separation agreement which the court, Harleston, J., incorporated into the dissolution decree. The court appointed counsel to represent the defendant on the contempt matter and the case was continued until July 11 of this year, when both parties again appeared. The court decided that it would hear evidence on defendant's motion first and defer hearing on the contempt matter. For the reasons stated below, the defendant's motion is granted, the judgment is opened, the financial orders therein are vacated, and a new trial is ordered as to financial orders.
The court must first address the question of its authority to open the judgment. The defendant seeks to modify orders concerning the division of property, which under Connecticut law are ordinarily not subject to modification after a judgment of dissolution. Little v. Little, 14 Conn.App. 195, 197-98 (1988); Bunche v. Bunche, 180 Conn. 285, 289 (1980); Gen. Stat. § 46b-86(a). Moreover, Connecticut law also provides that judgments may not be opened or set aside unless a motion to do so is filed within four months from the date of 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). None of these rules apply, however, when a party claims that a judgment must be opened because of mutual mistake of the parties. "[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); Lyman v. Lodrini, 78 Conn.App. 684, 687, 828 A.2d 681 (2003). "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." Hill v. Hill, 25 Conn.App. 452, 454-55, 594 A.2d 1041, cert. denied, 220 Conn. 917, 597 A.2d 333 (1991). The court thus concludes that it has jurisdiction to consider the defendant's claims.
The parties were married in 1999 and have three children, whose ages range from 9 to 14 years of age. The plaintiff brought this action for dissolution of marriage in August 2004, with a return date of September 14, 2004. Both parties appeared, and on November 4, 2004, they entered into a pendente lite agreement that plaintiff would have exclusive possession of the family home and that defendant would pay weekly alimony of $125 and child support of $162. Both parties again appeared on the case management date of December 14, 2004, for an uncontested dissolution before the Honorable Patricia Harleston. The separation agreement incorporated by reference into the judgment of dissolution states as follows:
9. As to division of property:
There is no property to divide except the Chevy Malibu in the defendant's name will remain in the possession of the plaintiff and defendant will continue to pay the insurance on said vehicle.
The parties will share use of the Silverleaf property and inform one another when they intend to use said property.
10. As to division of debts:
There are no debt to divide, except defendant will be responsible for the Silverleaf Resorts debt.
The defendant's motion to open claims that the judgment should be opened because the separation agreement and judgment "did not cover the distribution of the major assets of the parties, including the marital residence . . . or the time share vacation condo, or the automobile." (Def.'s Motion to Reopen and Modify, at 2.)
The original judgment was the product of a written stipulation between the parties. Construing that judgment requires interpretation of the parties' separation agreement in accordance with principles of contract law. Guille v. Guille, 196 Conn. 260, 265, 492 A.2d 175 (1985). This requires an inquiry into the intent of the parties at that time. Marsico v. Marsico, 195 Conn. 491, 493, 488 A.2d 1248 (1985). When a written contract contains the complete agreement between two parties, a court interpreting that contract is limited to the words of the contract and cannot consider additional evidence about the parties' intent or purposes. Ruscito v. F-Dyne Electronics Co., 177 Conn. 149, 160, 411 A.2d 1371 (1979). This principle, known as the parol evidence rule, does not apply to evidence offered to prove a collateral agreement that does not vary the terms of the contract. Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 503, 609-10, 746 A.2d 1277 (2000). Since the plaintiff claims that the reason the separation agreement did not refer to the pension or marital home was that the parties had already resolved use and ownership of these assets in a prior agreement between them, the parol evidence rule does not prevent her from introducing extrinsic evidence about that agreement.
The plaintiff testified that the reason the separation agreement did not mention the family home and pension is that the parties thought the only property matters the agreement had to address were those which the parties had not already resolved. She asks the court, in effect, to reform the separation agreement and judgment to conform to the parties' actual intent and agreement:
[R]eformation of a contract rests on the equitable theory that the instrument sought to be reformed does not conform to the real contract agreed upon and does not express the intention of the parties and that it was executed as the result of mutual mistake, or mistake of one party coupled with actual or constructive fraud, or inequitable conduct on the part of the other . . . Reformation is not granted for the purpose of alleviating a hard or oppressive bargain, but rather to restate the intended terms of an agreement when the writing that memorializes that agreement is at variance with the intent of both parties. Thus, the remedy of 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 both parties, the written instrument fails to express the real agreement or transaction . . . In short, the mistake, being common to both parties, effects a result which neither intended.
(Internal quotation marks omitted; internal alterations omitted.) Lopinto v. Haines, 185 Conn. 527, 531-33, 441 A.2d 151 (1981). The standard of proof for reformation of contracts is clear, substantial and convincing evidence. Id., 534. The court must consider the facts and circumstances of this case with this standard in mind.
This enhanced standard of proof, requiring greater proof than the "preponderance of the evidence" standard commonly used in civil actions, means that the facts found are highly probably true, or that the probability of their truth is substantially greater than the probability of their falsity. Clark v. Drska, CT Page 17962 1 Conn.App. 481, 487, 473 A.2d 325 (1984). In cases requiring 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." Dacey v. Connecticut Bar Assn., 170 Conn. 520, 537 (1976). "This standard of proof should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory." Lopinto v. Haines, supra, 185 Conn. 539.
At the hearing before this court, both parties testified and offered documentary evidence. The court also had available the financial affidavits they filed at the time of the dissolution. Neither of those financial affidavits listed the marital home or the Silverleaf Resorts timeshare as an asset, although the wife did list the mortgage debt of $99,429.74 owed on the marital home to Homecomings Financial and both listed the loan of approximately $5,000 for the timeshare. The husband listed "SBC Savings and Security 401K" as an asset with a value of $21,570.71. Evidence introduced at the hearing before this court shows that the 401K was actually worth about $4,000 more than that. Both financial affidavits listed vehicles having debt: the wife's financial affidavit listed a 2003 "Chevy Malibu" as an asset, but did specify any equity in it; and she listed a liability owned on the vehicle to "GUAC" of $13,994.55. The husband's financial affidavit listed a 1998 Ford Windstar as worth $2,000 and having a loan balance of $10,100, but did not list that loan as a liability.
The parties gave conflicting testimony to this court on what the home was worth in December 2004. The plaintiff testified that the parties had the property appraised then and that it was found to be worth $100,000 then and that it is now worth between $170,000 and $180,000. The defendant testified that it was worth about $250,000 at the time of the dissolution and "about the same" now.
In the year 2000 the parties purchased the marital home, a single-family dwelling located at 57 Ashford Street in West Haven, for $85,000. In November 2003 Mr. Doram vacated the family home and moved in with another woman. He returned to the marital home a short while later, but the parties did not resume marital relations. In April, they refinanced the marital home. The plaintiff used the bulk of the cash proceeds to pay off joint debt and renovate the home, including adding a fourth bedroom and a computer room in the basement and remodeling a bathroom, but she also gave approximately $7,000 of the proceeds to Mr. Doram when he again left the home later that spring. Just before he left the family home the second time, the parties agreed that Ms. Taveres would stay in the family home with the children and Mr. Doram could keep his pension for himself. Both parties initialed a writing stating that "I and the children stay in the house." Since then, the plaintiff has lived in the marital home with her children and paid the mortgage and all other expenses associated with the home and the plaintiff has spent approximately $15,000 of the funds in his 401K.
At the hearing before this court, the plaintiff testified that the reason the separation agreement did not mention ownership of the marital home and pension was that the parties believed the agreement only needed to address items the parties had not already resolved. She thought that the parties' earlier written agreement that they initialed in their kitchen on the day the husband left the marital home for the final time had already transferred ownership of the marital home to her. The defendant denied any such agreement, on the other hand, and testified that "[w]e would both still own it." (T. 14) Although the plaintiff testified that the marital home was only worth about $100,000 at the time of the dissolution, the defendant testified that it was worth two to three times that much. He also testified that he had no idea that a court could transfer part or all of his 401K to his wife and that, in his mind, "the pension was always mine." (T., at 44.)
THE COURT: Was there any kind of agreement between you and him at the time of the divorce about who would get ownership of the marital home?
MS. TAVERES-DORAM: I'm going to have to say, no, we did not talk about who would get ownership. It was just assumed.
THE COURT: . . . Was there any agreement about who would get ownership of [the pension]?
MS. TAVERES-DORAM: Well, we talked — that was one of the things that I didn't touch his 401K or pension . . . In the kitchen the day that we talked about the ho — I stay in the house . . . We discussed about the 401K and the pension. You know, I wasn't going to touch it, and I told him I wouldn't touch it since he, you know, left the house with me.
THE COURT: [A]t the time of the divorce was there any agreement between the two of you about what would happen to his pension and his 401k?
MS. TAVERES-DORAM: No, we didn't bring that up because of our mutual agreement in the kitchen that day . . .
THE COURT: Was there any agreement between the two of you at the time of the divorce about these things, about the pension and 401k?
MS. TAVERES-DORAM: Just the fact that, you know, I have the house, he has his 401K and his pension.
THE COURT: So you're saying to me that the things that were written up in the separation agreement dealt with things that hadn't been previously decided between you and your husband?
MS. TAVERES-DORAM: Right. They haven't been talked about until that day.
THE COURT: And that's why they get it written down because those were new things?
MS. TAVERES-DORAM: Yes. Trans., at 37-39.
THE COURT: So at the time of the divorce you thought the property was already in your name because of the agreement from before?
MS. TAVERES-DORAM: Yes
THE COURT: But you didn't know that for property to get transferred from one ownership to another there would have to be some papers signed?
MS. TAVERES-DORAM: No, I didn't. I did not know that until I spoke to someone at my mortgage company.
Trans., at 73.
The initial words of the portion of the separation agreement concerning "division of property" states that "There is no property to divide, except the Chevy Malibu in the defendant's name will remain in possession of the plaintiff, and defendant will continue to pay the insurance on said vehicle." The fact that the wife's financial affidavit listed the Malibu car loan as a debt of hers and that the husband did not list it as his debt is sufficient evidence to show that the parties intended she would be responsible for that debt after the dissolution; and the provision that would defendant would continue to be responsible to pay for the car insurance also clearly assigns that responsibility. But the language is somewhat ambiguous as to title to the vehicle. It acknowledges that the vehicle, prior to the dissolution, had been in the husband's name but the wife's possession, and that, after dissolution, the wife would continue to possess the vehicle, but the agreement does not specifically assign ownership of the vehicle after the dissolution. Nothing in the evidence before this court provides any basis for determining what the parties' agreement was as to ownership.
The second sentence of the property division portion of the separation agreement provides that "the parties will share use of the Silverleaf property and inform one another when they intend to use said property." The first sentence of the section on "division of debts" states that "defendant will be responsible for the Silverleaf Resorts debt." The agreement thus expressly provided that the parties would share use of the Silverleaf resort and that defendant would be the one responsible for paying off the loan. The court finds that this language, although not expressly conferring an ownership interest in the property, shows the intent of the parties for both to remain joint owners of that property. Both parties testified before this court that they had intended for the timeshare to remain jointly-owned property, and the language of the separation agreement, considered on its own and without reference to their testimony here, confirms that intent.
It is not unusual for pro se parties in a dissolution of marriage proceeding to assume that property and liabilities listed on their respective financial affidavits but not expressly assigned to the other party as part of the separation agreement will remain their own property or debt. From the evidence presented to this court, however, the court finds too many matters to be uncertain or ambiguous for it to reform the separation agreement. Appearing pro se, the parties were operating on legally unfounded assumptions — on the plaintiff's part, for example, that the marital home had become hers by virtue of a writing that she and the children could "stay" there, and on defendant's part that his wife had no claim whatsoever to his deferred compensation. Her belief that the family home would become hers was based on an assumption rather than an express or implied agreement between the parties. The court can find with complete confidence that both parties intended that the plaintiff would continue to reside in that home with the children. But the court cannot find, with the necessary level of confidence sufficient to meet the standard for clear and convincing evidence, that the parties had agreed as to ownership of that home.
Although there is insufficient evidence to meet the standard of proof for reformation of the separation agreement, the defendant has satisfactorily proven that the agreement failed, by mutual mistake of the parties, to assign ownership of the marital home, the husband's 401K, or either of the motor vehicles. Such a mutual mistake requires the court to open the judgment and set the matter down for a new hearing on financial issues.
When a court sets aside one financial order contained in dissolution judgment, it must then decide whether to set them all aside. That determination depends on whether the various financial orders are "interdependent." Smith v. Smith, 249 Conn. 265, 277, 752 A.2d 1023 (1999) (holding that a "financial order is severable when it is not in any way interdependent with other orders and is not improperly based on a factor that is linked to other factors"). Here, however, the plaintiff's testimony makes clear that the marital home and pension were linked together, as were title and ownership to the two motor vehicles. The requirement in the agreement that the husband pay for the timeshare debt, car insurance, and plaintiff's health insurance are all linked to the alimony and support orders.
The court thus concludes that the financial orders in this case comprised an "interrelated mosaic" in which various elements depend on the other, and that the court must set aside all financial orders entered at the time of dissolution and set the matter down for a new hearing. The orders dissolving the marriage, changing plaintiff's name, and relating to custody and visitation are unaffected by this decision and remain in effect. Pending a new hearing on financial issues, the court orders reinstatement of the pendente lite financial orders entered October 4, 2004. The court orders both parties to appear for a status conference on October 17, 2006.
SO ORDERED.