Foisie v. Foisie ( 2020 )

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JANET H. FOISIE v. ROBERT A. FOISIE
(SC 20384)
D’Auria, Mullins, Kahn, Ecker and Vertefeuille, Js.
Syllabus
Pursuant to statute (§ 52-599 (b)), a civil action or proceeding, including a
dissolution action, shall not abate by reason of the death of any party
but may be continued by or against the executor or administrator of
the deceased party, and, if a defendant dies, the plaintiff, within one
year after receiving notification of the defendant’s death, may apply for
an order to substitute the defendant’s executor or administrator in the
place of the defendant.
Pursuant further to statute (§ 52-599 (c) (1)), substitution under § 52-599
(b) is precluded when the purpose or object of the civil action is defeated
or rendered useless by the death of a party.
The plaintiff appealed from the trial court’s denial of her motion to substitute
the coexecutors of the estate of R, the defendant and the plaintiff’s
former husband, pursuant to § 52-599 (b), in place of R. Approximately
four years after the marriage of the plaintiff and R had been dissolved,
and while R was still living, the plaintiff filed a motion to open the
judgment of dissolution on the ground of fraud, claiming that R wilfully
had failed to disclose assets he held in offshore accounts. The plaintiff
and R stipulated that the judgment could be opened for the limited
purpose of conducting discovery regarding the plaintiff’s allegations,
but, prior to complying with the court’s discovery orders, R died. At
the time of R’s death, the motion to open was pending and the dissolution
judgment remained open. In denying the plaintiff’s motion to substitute,
the trial court concluded that R’s death defeated or rendered useless
the underlying motion to open the dissolution judgment, and, thus,
substitution of the coexecutors as defendants was prohibited under
§ 52-599 (c) (1). The court reasoned that, if the plaintiff’s motion to
open were granted, the marriage would be reinstated but would have
automatically dissolved on the date of R’s death pursuant to statute
(§ 46b-40). Accordingly, the court determined, it could not again dissolve
the marriage and redistribute the financial assets, as the plaintiff had
requested in her motion to open. On appeal, the plaintiff claimed that
R’s death did not defeat or render useless her motion to open the
dissolution judgment and thereby prohibit substitution of the coexecu-
tors as defendants under § 52-599. Held that the trial court improperly
denied the plaintiff’s motion to substitute as defendants the coexecutors
of R’s estate: substitution of an executor or administrator for a deceased
defendant is permitted under § 52-599 (b) when the action or proceeding
to which the deceased defendant is a party is pending, and, in the present
case, the plaintiff’s motion to open was pending before the trial court
at the time of R’s death; moreover, when a motion to open a dissolution
judgment on the basis of financial fraud, such as the plaintiff’s motion,
seeks to open that judgment only for the purpose of reconsideration of
the financial orders, the granting of that motion does not reinstate the
marriage and, thus, does not defeat or render useless the underlying
divorce proceeding; in the present case, although the plaintiff did not
specifically request, in her motion to open, that the trial court open the
dissolution judgment for the limited purpose of reconsideration of the
financial orders, the allegations in that motion and the supporting memo-
randum of law made clear that the plaintiff was seeking to have the
court open the judgment for that limited purpose rather than for the
purpose of reinstating the marriage, and, therefore, contrary to the trial
court’s conclusion, substitution was not precluded under § 52-599 (c) (1).
Argued January 22—officially released April 27, 2020*
Procedural History
Action for the dissolution of marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of New London at Norwich and tried to the court,
Hon. Joseph J. Purtill, judge trial referee; judgment
dissolving the marriage and granting certain other relief;
thereafter, the court, Diana, J., granted the plaintiff’s
motion to open the judgment in accordance with the
parties’ stipulation; subsequently, the court, Car-
bonneau, J., denied the plaintiff’s motion to substitute
Sir Clare Roberts et al., coexecutors of the estate of
Robert A. Foisie, as the defendants, and the plaintiff
appealed. Reversed in part; further proceedings.
Campbell D. Barrett, with whom were Johanna S.
Katz and, on the brief, Jon T. Kukucka, for the appel-
lant (plaintiff).
Janet A. Battey and Aidan R. Welsh filed a brief for
the Connecticut Chapter of the American Academy of
Matrimonial Lawyers as amicus curiae.
Opinion
D’AURIA, J. In this appeal, we are asked to decide
for the first time whether a party to a dissolution of
marriage action may substitute the executor or adminis-
trator of the estate of a deceased party in the place of
the decedent under General Statutes § 52-599 when the
pending civil proceeding seeks to open a judgment of
dissolution on the basis of financial fraud. The plaintiff,
Janet H. Foisie, claims that the trial court improperly
denied her motion to substitute the coexecutors of the
estate of the defendant, Robert A. Foisie,1 her former
husband, in his place. Specifically, she argues that the
trial court incorrectly determined that, pursuant to § 52-
599 (c), the defendant’s death defeated and rendered
useless her underlying motion to open the judgment of
dissolution, thereby prohibiting substitution under § 52-
599 (b). The trial court ruled that granting the motion
to open would reinstate the parties’ marriage, the rein-
stated marriage automatically would be dissolved under
General Statutes § 46b-40 due to the defendant’s death,
and, thus, the reopened action for dissolution would
abate, preventing the court from granting the plaintiff
any relief. We disagree and therefore reverse in part
the judgment of the trial court.
The following procedural history is relevant to our
review of the plaintiff’s claim. The trial court dissolved
the parties’ marriage in 2011. The judgment of dissolu-
tion incorporated a separation agreement entered into
by the parties, which included financial orders. Approxi-
mately four years later, the plaintiff moved to open and
set aside the judgment of dissolution on the ground of
fraud or, alternatively, on the ground of mutual mistake.
Specifically, the plaintiff alleged that the defendant had
failed to disclose assets totaling several million dollars
held in bank accounts in Switzerland.2 The plaintiff
requested that the court open and set aside the judg-
ment of dissolution and hold a new trial on all financial
issues. In her supporting memorandum of law, she
argued that ‘‘[t]he defendant wilfully and purposefully
misrepresented the value of marital assets by failing to
disclose the existence and value of his offshore holdings
and thereby secured the stipulated dissolution judg-
ment by means of direct and calculated fraud. . . .
Law and equity require that the stipulated dissolution
judgment be opened and vacated on such grounds, so
that a fair division of the parties’ assets may be had.’’
The parties stipulated that the judgment of dissolu-
tion could be opened for the limited purpose of conduct-
ing discovery regarding the plaintiff’s allegations of
fraud.3 Despite this stipulation, the defendant failed to
produce any discovery and failed to comply with the
trial court’s discovery orders, leading the court to hold
him in contempt and to issue multiple financial sanc-
tions. Prior to complying with the discovery orders, the
defendant died, nearly seven years after the judgment
of dissolution was rendered, while the motion to open
was pending and the dissolution judgment remained
open for the limited purpose of conducting discovery.
After the defendant’s death, the plaintiff moved to
substitute the coexecutors of the defendant’s estate in
place of the defendant pursuant to § 52-599.4 The trial
court denied the plaintiff’s motion to substitute. The
court explained that, pursuant to § 52-599 (c), to substi-
tute the executors of the estate of a deceased party in
place of the party, the pending civil action or proceeding
must not be defeated or rendered useless by the death
of the party. The trial court determined that, if the
plaintiff’s motion to open the dissolution judgment were
granted, the parties’ marriage would be reinstated.
Because the parties’ reinstated marriage would have
automatically dissolved on the date of the defendant’s
death, pursuant to § 46b-40,5 nearly seven years after
the dissolution judgment had been rendered, the court
reasoned that it could not again dissolve the parties’
marriage and redistribute the financial assets, as the
plaintiff requested in her motion to open. Thus, the trial
court concluded that the motion to open was defeated
or rendered useless, and, therefore, it had to deny the
motion to substitute.
The plaintiff appealed to the Appellate Court from
the trial court’s denial of the motion to substitute. The
appeal was transferred to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-2.
The plaintiff argues that the trial court incorrectly
concluded that opening the dissolution judgment would
reinstate the parties’ marriage, thereby defeating the
underlying motion to open and prohibiting substitution.
She argues that the granting of a motion to open a
judgment of dissolution for purposes of reconsidering
the financial orders does not reinstate the parties’ mar-
riage and, thus, does not abate upon the death of a party.
As a result, she contends, the exceptions enumerated
in § 52-599 (c) do not apply, but, rather, § 52-599 (b)
permits substitution in the present case.6
We agree that when a motion to open a dissolution
judgment on the basis of financial fraud seeks to open
the judgment only for the limited purpose of reconsider-
ation of the financial orders, granting the motion does
not reinstate the party’s marriage and, thus, does not
defeat or render useless the underlying civil proceeding
so that substitution is permitted under § 52-599. We also
agree with the plaintiff that her motion to open the
dissolution judgment in the present case sought to open
the judgment only for the limited purpose of reconsider-
ation of the financial orders. Therefore, we conclude
that the underlying civil proceeding was not defeated
or rendered useless by the defendant’s death, and, thus,
the trial court improperly denied the plaintiff’s motion
to substitute.
Although we generally review a trial court’s decision
whether to grant a motion for substitution of a party
for abuse of discretion, in the present case, because
the plaintiff’s claim requires us both to consider the
trial court’s legal authority to grant the motion to substi-
tute—whether there was a viable underlying civil pro-
ceeding—and to construe and gauge the applicability
of statutes, our review is plenary. See In re David B.,
167 Conn. App. 428, 439, 142 A.3d 1277 (2016).
Substitution of a deceased party in a civil action or
proceeding, including a dissolution action; see Charles
v. Charles, 243 Conn. 255, 257, 701 A.2d 650 (1997)
(‘‘[a]n action for dissolution of a marriage ‘obviously is
a civil action’ ’’), cert. denied, 523 U.S. 1136, 118 S. Ct.
1838, 140 L. Ed. 2d 1089 (1998); is governed by § 52-
599. Subsection (a) of § 52-599 provides that ‘‘[a] cause
or right of action shall not be lost or destroyed by the
death of any person, but shall survive in favor of or
against the executor or administrator of the deceased
person.’’ Subsection (b) of § 52-599 specifies that ‘‘[a]
civil action or proceeding shall not abate by reason of
the death of any party thereto, but may be continued
by or against the executor or administrator of the dece-
dent. . . . If a party defendant dies, the plaintiff, within
one year after receiving written notification of the
defendant’s death, may apply to the court in which
the action is pending for an order to substitute the
decedent’s executor or administrator in the place of
the decedent, and, upon due service and return of the
order, the action may proceed.’’ Subsection (c) of § 52-
599, however, prohibits substitution in three limited
circumstances: ‘‘The provisions of this section shall not
apply: (1) To any cause or right of action or to any civil
action or proceeding the purpose or object of which is
defeated or rendered useless by the death of any party
thereto, (2) to any civil action or proceeding whose
prosecution or defense depends upon the continued
existence of the persons who are plaintiffs or defen-
dants, or (3) to any civil action upon a penal statute.’’
General Statutes § 52-599 (c).
In interpreting § 52-599, we are guided by our well
established legal principles regarding statutory con-
struction: ‘‘Because the issue presents a question of
statutory interpretation, our analysis is guided by Gen-
eral Statutes § 1-2z, the plain meaning rule. In seeking
to determine the meaning of a statute, § 1-2z directs us
first to consider the text of the statute itself and its
relationship to the broader statutory scheme. If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratex-
tual evidence of the meaning of the statute shall not
be considered. General Statutes § 1-2z. The test to deter-
mine ambiguity is whether the statute, when read in
context, is susceptible to more than one reasonable
interpretation.’’ (Internal quotation marks omitted.)
State v. Dudley, 332 Conn. 639, 645, 212 A.3d 1268
(2019).
The language of subsections (a) and (b) of § 52-599
is broad. Subsection (a) permits any ‘‘cause or right
of action’’ to survive in the event of a party’s death.
Subsection (b) specifies the procedure for seeking sub-
stitution and explicitly allows substitution in any ‘‘civil
action or proceeding . . . .’’ Under subsection (b),
when a plaintiff seeks to substitute the executor of the
estate for the deceased defendant, the plaintiff must
file the motion in the court in which the action is pend-
ing within one year of receiving notice of the defen-
dant’s death. We infer from this language that, to permit
substitution, there must be a pending action or proceed-
ing. Because, at the time of the defendant’s death, the
plaintiff’s motion to open was pending before the trial
court, which already had granted the motion in part for
discovery purposes, we have no trouble concluding that
there was a pending action and that substitution was
permissible under the unambiguous language of subsec-
tion (b). See Fairfield Merrittview Ltd. Partnership v.
Norwalk, 320 Conn. 535, 559–60, 133 A.3d 140 (2016)
(civil action is pending when either action has been
commenced, but there is no judgment, or judgment
has been rendered, then opened); Bank of Stamford v.
Schlesinger, 160 Conn. App. 32, 44 n.9, 125 A.3d 209
(2015) (same).
This is consistent with our prior cases interpreting
§ 52-599, in which this court has described subsection
(a) as having a ‘‘broad sweep,’’ limited only by the three
narrow exceptions enumerated in subsection (c). Com-
mission on Human Rights & Opportunities v. Green-
wich Catholic Elementary School System, Inc., 202
Conn. 609, 614, 522 A.2d 785 (1987). This broad applica-
tion of this provision reflects ‘‘the general policy
favoring the continuation and timely resolution of
actions on the merits whenever possible.’’ In re David
B., supra, 167 Conn. App. 442. We have explained that
the purpose of § 52-599 was to abrogate ‘‘[the common-
law rule that] the death of a sole plaintiff or defendant
abated an action . . . .’’ (Citation omitted; footnote
omitted.) Burton v. Browd, 258 Conn. 566, 570–71, 783
A.2d 457 (2001); see also In re David B., supra, 441
(rejecting common law’s overtechnical formal require-
ments in favor of substitution and recognizing policy
that ‘‘[t]he addition or substitution of parties to legal
proceedings generally is favored in order to permit
courts to make timely and complete determinations on
behalf of parties with genuine interests in the outcome
of controversies brought before them’’). Thus, as long
as all filing requirements are satisfied, permitting substi-
tution is the rule, unless one of the three exceptions in
subsection (c) applies.
The trial court in the present case determined that
the first exception applied—that the plaintiff’s motion
to open was defeated or rendered useless by the defen-
dant’s death.7 This exception focuses on whether a par-
ty’s death affects the continuing vitality of the proceed-
ings. See Groton v. Commission on Human Rights &
Opportunities, 169 Conn. 89, 100–101, 362 A.2d 1359
(1975) (analyzing whether party’s death affected contin-
uing vitality of proceedings); id., 103–104 (Cotter, J.,
concurring) (same). Under this exception, courts have
looked to the remedy sought in determining the viability
of the underlying action. For example, this court has
permitted substitution in cases in which the death of
the party had no effect on the continuing vitality of the
proceeding because the estate could fill the shoes of the
decedent, such as when the pending civil case sought
monetary damages, which could be awarded to or
against the estate just as damages could be awarded
to or against the deceased party had the party survived.
See Commission on Human Rights & Opportunities
v. Greenwich Catholic Elementary School System,
Inc., supra, 202 Conn. 614 (recovery of monetary losses
in connection with age discrimination claim would
enhance value of decedent’s estate); Groton v. Commis-
sion on Human Rights & Opportunities, supra, 103–
104 (Cotter, J., concurring); see also Hillcroft Partners
v. Commission on Human Rights & Opportunities,
205 Conn. 324, 331, 533 A.2d 852 (1987) (§ 52-599 (b)
is applicable when ‘‘executor has entered the adminis-
trative proceeding by filing an amended complaint seek-
ing any remedy to which the deceased complainant
may have been entitled’’ (emphasis omitted; internal
quotation marks omitted)); In re David B., supra, 167
Conn. App. 446 (‘‘the applicability of § 52-599 [when a
party seeks to substitute the estate of a deceased plain-
tiff] reasonably can be viewed as limited to those civil
cases in which, despite a party’s death, the continuation
of the litigation arguably could benefit the decedent’s
estate, typically in some pecuniary manner’’). In con-
trast, courts have prohibited substitution in cases in
which the action sought specific relief that was unique
to the parties, such as seeking an injunction for specific
performance. See Groton v. Commission on Human
Rights & Opportunities, supra, 100–101.
Whether this exception applies in the present case
requires us to determine whether the plaintiff’s motion
to open the dissolution judgment on the basis of fraud
was defeated or rendered useless by the defendant’s
death. In so doing, we are guided by the following legal
principles regarding motions to open judgments of dis-
solution. Although, under General Statutes § 52-212a,8
generally, a motion to open must be filed within four
months following the date on which judgment was ren-
dered, a judgment in a civil action, including ‘‘[a] marital
judgment based upon a stipulation may be opened if
the stipulation, and thus the judgment, was obtained
by fraud. . . . The power of the court to vacate a judg-
ment for fraud is regarded as inherent and independent
of statutory provisions authorizing the opening of judg-
ments; hence judgments obtained by fraud may be
attacked at any time.’’ (Citation omitted; internal quota-
tion marks omitted.) Billington v. Billington, 220 Conn.
212, 217–18, 595 A.2d 1377 (1991); see also Reville v.
Reville, 312 Conn. 428, 441, 93 A.3d 1076 (2014) (‘‘[a]n
exception to the four month limitation applies, how-
ever, if a party can show, inter alia, that the judgment
was obtained by fraud’’).
‘‘There are three limitations on a court’s ability to
grant relief from a dissolution judgment secured by
fraud: (1) there must have been no laches or unreason-
able delay by the injured party after the fraud was
discovered; (2) there must be clear proof of the fraud;
and (3) there is a [reasonable probability] that the result
of the new trial will be different.’’ (Footnote omitted;
internal quotation marks omitted.) Reville v. Reville,
supra, 312 Conn. 442. Additionally, ‘‘the granting of such
relief must not unfairly jeopardize interests of reliance
that have taken shape on the basis of the judgment.’’
(Internal quotation marks omitted.) Billington v. Bill-
ington, supra, 220 Conn. 218 n.6.
This court has not expressly addressed the present
issue—whether a motion to open a dissolution judg-
ment on the basis of fraud abates after a party’s death.
The determination of this issue turns on the relief
requested in the motion to open. Our trial courts have
entertained motions to open dissolution judgments,
which sought, on the basis of fraud, to set aside the
dissolution of the marriage and, thereby, to reinstate
the parties’ marriage.9 See Bonilla v. Bonilla, Superior
Court, judicial district of Hartford, Docket No. FA-12-
4063256-S (August 5, 2014) (60 Conn. L. Rptr. 778, 779–
80) (court granted motion to open dissolution judgment,
vacated dissolution judgment and financial orders and
reinstated validity of original marriage, where plaintiff
alleged that defendant had tricked her into defaulting
in dissolution proceedings, then remarried her); Lev-
esque v. Levesque, Docket No. FA-96-007L336, 1996 WL
521167, *1 (Conn. Super. September 3, 1996) (court
granted motion to open dissolution judgment on ground
that ‘‘[n]o harm would come to anyone if [the] judgment
were vacated, and it would foster the preservation and
stability of the family, which is the public policy of the
[s]tate,’’ where defendant had alleged that dissolution
was mistake and both parties wanted to reconcile and
continue marriage). In these cases, because granting
the motion to open would reinstate the marriage, a
party’s death while the motion was pending would have
defeated and rendered useless the underlying civil pro-
ceeding, as the reinstated marriage would automatically
be dissolved as of the date of the deceased party’s death.
See General Statutes § 46b-40.
Although a motion to open, if granted, may vacate
the dissolution of the marriage and thereby reinstate
the marriage, that does not mean that the granting of
every motion to open necessarily vacates the dissolu-
tion of the marriage. Not every motion to open seeks
to vacate the dissolution of the marriage. Rather, courts
in this state consistently have granted motions to open
dissolution judgments on the basis of fraud for the
limited purpose of reconsidering the financial orders.10
See, e.g., Reinke v. Sing, 186 Conn. App. 665, 667 n.1,
201 A.3d 404 (2018) (trial court granted motion to open
dissolution judgment in accordance with parties’ stipu-
lation for limited purpose of permitting court to recon-
sider financial orders); see also Lavy v. Lavy, 190 Conn.
App. 186, 192, 210 A.3d 98 (2019) (same); Forgione v.
Forgione, 186 Conn. App. 525, 528, 200 A.3d 190 (2018)
(same); cf. Jenks v. Jenks, 232 Conn. 750, 752, 657 A.2d
1107 (1995) (‘‘trial court . . . granted the motion to
open and set aside that part of the stipulated judgment
that dealt with the disposition of the marital property’’).
When courts have granted motions to open dissolu-
tion judgments on the basis of fraud for the limited
purpose of reconsidering the financial orders, courts
have used the date of the original dissolution judgment
as the valuation date for the marital property. We infer
from this that courts in those cases have considered
the original judgment of dissolution to remain intact
despite the granting of the motion to open to reconsider
the financial orders. See Lavy v. Lavy, supra, 190 Conn.
App. 204–205 (using value of marital property on date
of dissolution to determine whether plaintiff was
harmed by defendant’s financial fraud despite opening
dissolution judgment to reconsider financial award);
see also Reville v. Reville, supra, 312 Conn. 433 (trial
court used date of dissolution judgment as valuation
date for marital property when reconsidering financial
award); Forgione v. Forgione, supra, 186 Conn. App.
529 (same); Taveres-Doram v. Doram, Docket No. FA-
XX-XXXXXXX-S, 2007 WL 155155, *6 (Conn. Super. January
2, 2007) (court’s opening of dissolution judgment for
limited purpose of reconsidering financial award did
not affect dissolution of marriage or custodial orders
but determined new financial award based on value
of marital assets as of date of dissolution decree); cf.
Weinstein v. Weinstein, 275 Conn. 671, 708 n.28, 882
A.2d 53 (2005) (‘‘[t]he result of this case [reversal of
the denial of the motion to open the judgment of dissolu-
tion on the ground of fraud and remanding for further
proceedings regarding assets] essentially is no different
[from] any other reversal of judgment in a dissolution
action requiring a new trial, affording the trial court
enormous discretion, as to valuation and division of
the marital assets and other attendant financial
orders’’). The granting of these motions to open for the
limited purpose of reconsidering the financial orders
did not reinstate the parties’ marriages. Allowing parties
to open dissolution judgments, when financial fraud
has been alleged, for the limited purpose of reconsid-
ering the financial orders without reinstating the par-
ties’ marriage, is both equitable and sound public policy.
If the granting of a motion to open a judgment of dissolu-
tion on the basis of financial fraud, regardless of the
relief requested, led to the reinstatement of the mar-
riage, parties who have suffered from financial fraud
but have since remarried would be stuck between the
proverbial rock and a hard place—they would have to
choose between redress for the financial fraud and the
validity of their subsequent marriage. See Bonilla v.
Bonilla, supra, 60 Conn. L. Rptr. 779 (voiding subse-
quent remarriage of parties after granting motion to
open dissolution judgment and reinstating dissolved
marriage because, ‘‘ ‘[i]f a marriage is contracted before
the prior marriage of one of the parties is dissolved and
while the spouse from that prior marriage is still living,
the subsequent marriage is void’ ’’); see also footnote
9 of this opinion. Additionally, if the parties have remar-
ried, this result also would be inequitable and unfair to
the spouse of either party, who had the reasonable
expectation that the prior marriage had been dissolved.
Additionally, this is consistent with how we have
valued marital property when a dissolution judgment
has been reversed for reconsideration of the financial
orders. In Sunbury v. Sunbury, 216 Conn. 673, 583 A.2d
636 (1990), this court was asked to determine how, on
remand, to value marital assets after financial orders
contained in a judgment of dissolution were set aside
on appeal. Id., 674–75. Relying on General Statutes (Rev.
to 1985) § 46b-81 (a)11 and General Statutes § 46b-82,12
we determined that property that is the subject of finan-
cial orders in dissolution proceedings ordinarily must
be valued as of the date of dissolution: ‘‘In the absence
of any exceptional intervening circumstances occurring
in the meantime, [the] date of the granting of the divorce
would be the proper time as of which to determine the
value of the estate of the parties upon which to base
the division of property.’’ (Internal quotation marks
omitted.) Id., 676. Despite the financial orders contained
within the dissolution judgment having been set aside,
the dissolution judgment date remained intact and, thus,
was the proper date by which to determine the value
of the marital property. Id. Setting aside a limited por-
tion of the dissolution judgment—the financial orders—
did not open the entire judgment of dissolution or rein-
state the parties’ marriage. Although Sunbury did not
involve a motion to open, it is instructive that, in grant-
ing the relief sought on appeal and setting aside the
financial orders, we did not contemplate or order the
reinstatement of the parties’ marriage.
The Appellate Court, relying on Sunbury, came to a
similar conclusion in LaBorne v. LaBorne, 189 Conn.
App. 353, 207 A.3d 58 (2019), in which it held that,
when a trial court grants a motion to open a dissolution
judgment on the basis of fraud for the limited purpose
of reconsidering the financial award, in reconsidering
the financial award, ‘‘the appropriate date of valuation
of the parties’ marital assets, for purposes of the distri-
bution of those assets, was the date of its original decree
. . . .’’ (Internal quotation marks omitted.) Id., 362. The
Appellate Court reasoned that, because marital prop-
erty ordinarily must be valued as of the date of the
dissolution judgment, the marital property had to be
valued as of the date of the original decree, not as of
the date that the financial orders were reconsidered.
Id., 362–63. Implicit in this analysis and in the relief
orders was a recognition that opening the dissolution
judgment for the limited purpose of reconsidering the
financial orders did not reinstate the parties’ marriage.
Because granting a motion to open the judgment of
dissolution for the limited purpose of reconsidering the
financial orders does not reinstate the parties’ marriage,
a party’s death would not necessarily defeat such a
motion or render it useless. If the granting of the motion
served to reinstate the marriage, the party’s death would
defeat and render useless the motion, because, once
granted, the reinstated marriage would automatically
be dissolved as of the date of the deceased party’s death;
General Statutes § 46b-40; and, thus, the court could
not then reconsider the financial award and redissolve
the marriage.13 Rather, despite the defendant’s death in
the present case, and in light of the relief sought, the
motion to open could be granted for the limited purpose
of reconsidering the financial orders, which would not
affect the status of the marriage and therefore would
not defeat or render useless the motion. Accordingly,
this exception to substitution under § 52-599 (c) did not
apply in the present case.
In the absence of the applicability of one of the three
exceptions enumerated in § 52-599 (c), when a party
seeks to open a dissolution judgment on the basis of
fraud for the limited purpose of reconsidering the finan-
cial orders, we discern no reason to prohibit substitu-
tion of the executor or the administrator of the estate
in the event of a party’s death.14 Not only, as explained,
would granting the motion to open not affect the status
of the parties’ marriage, but, also, this is the kind of
matter in which the executor or administrator of the
estate can step into the role of the deceased party. As
in other cases in which substitution has been permitted
under § 52-599, the granting of the motion to open for
this limited purpose and the resulting reconsideration
of the financial orders would do no more than enhance
or diminish the estate the same as it would have
enhanced or diminished the deceased defendant’s
assets if he had lived. See Commission on Human
Rights & Opportunities v. Greenwich Catholic Elemen-
tary School System, Inc., supra, 202 Conn. 614 (‘‘claim
of the deceased complainant before the [Commission
on Human Rights and Opportunities] for monetary
losses resulting from the termination of her employ-
ment is not ‘defeated or rendered useless’ by her death,
because a recovery upon such a claim would enhance
the value of her estate’’). Additionally, the executor or
administrator of the estate would have access to the
defendant’s financial records and assets, which are the
subject of the motion to open. See id. (deceased com-
plainant’s continued existence was not necessary to
prosecution of claim because estate and defendant had
access to prior testimony and other evidence).
Moreover, permitting a party to substitute the execu-
tor or administrator of the estate of the deceased party
and to open a dissolution judgment for the limited pur-
pose of reconsidering the financial orders when fraud
has been alleged is consistent with the general principle
that, ‘‘[i]n family matters, the court exercises its equita-
ble powers.’’ Oneglia v. Oneglia, 14 Conn. App. 267,
271, 540 A.2d 713 (1988). ‘‘While an action for divorce
or dissolution of marriage is a creature of statute, it
is essentially equitable in its nature.’’ Pasquariello v.
Pasquariello, 168 Conn. 579, 584, 362 A.2d 835 (1975).
The trial court has considerable discretion to balance
equities in a dissolution proceeding. See Sunbury v.
Sunbury, 210 Conn. 170, 174, 553 A.2d 612 (1989) (‘‘ ‘The
power to act equitably is the keystone to the court’s
ability to fashion relief in the infinite variety of circum-
stances which arise out of the dissolution of a marriage.
Without this wide discretion and broad equitable power,
the courts in some cases might be unable fairly to
resolve the parties’ dispute . . . .’ ’’). ‘‘For that reason,
equitable remedies are not bound by formula but are
molded to the needs of justice.’’ Oneglia v. Oneglia,
supra, 272. ‘‘[I]n some situations, the principle of protec-
tion of the finality of judgments must give way to the
principle of fairness and equity.’’ (Internal quotation
marks omitted.) Brody v. Brody, 153 Conn. App. 625,
632, 103 A.3d 981 (quoting Kim v. Magnotta, 249 Conn.
94, 109, 733 A.2d 809 (1999)), cert. denied, 315 Conn.
910, 105 A.3d 901 (2014).
As a result, we must determine whether the plaintiff
in the present case requested that the court open the
dissolution judgment in its entirety or for the limited
purpose of reconsidering the financial orders. The plain-
tiff’s motion to open was labeled simply as ‘‘Motion to
Open, Postjudgment.’’ She requested that the trial court
‘‘open and set aside its September 8, 2011 judgment of
dissolution of marriage, which incorporated a separa-
tion agreement entered into by the parties, and atten-
dant financial orders.’’ On the basis of the labeling of
her motion, the plaintiff did not specifically request that
the court open the dissolution judgment for the limited
purpose of reconsidering the financial orders. Rather,
the motion could fairly be read to seek to open the
dissolution judgment in its entirety, affecting the status
of her marriage (or rather, of her divorce).
Even when a motion to open does not expressly seek
to have the court open the dissolution judgment only
for the limited purpose of reconsidering the financial
award, however, we have looked to the substance of
the motion and the relief sought in determining the
extent to which a party seeks the opening of the dissolu-
tion judgment. For example, in Reville v. Reville, supra,
312 Conn. 428, the plaintiff filed a motion to open and
set aside the dissolution judgment on the ground of
financial fraud four years after the judgment of dissolu-
tion, arguing that the court should reconsider the finan-
cial award because the defendant had failed to disclose
certain marital property. Id., 432–33. Although the
motion to open was broadly labeled, seeking to open
and set aside the judgment of dissolution, on the basis
of the allegations and the relief requested, the trial court
and this court treated the motion as a request to open
the judgment for the limited purpose of reconsidering
the financial award. See id. Similarly, in Kenworthy v.
Kenworthy, 180 Conn. 129, 130, 429 A.2d 837 (1980),
despite labeling the motion as a motion to open the
dissolution judgment, ‘‘the defendant expressed dissat-
isfaction only with that portion of the judgment which
involved the disposition of the family residence,’’ and,
thus, the motion was granted only as to the financial
orders, leaving the portion of the judgment dissolving
the marriage intact. These cases are consistent with
our judicial policy of construing pleadings broadly and
realistically. See Byrne v. Avery Center for Obstetrics &
Gynecology, P.C., 314 Conn. 433, 462, 102 A.3d 32 (2014)
(pleadings should be construed ‘‘broadly and realisti-
cally, rather than narrowly and technically’’ (internal
quotation marks omitted)); see also Fairfield Merritt-
view Ltd. Partnership v. Norwalk, supra, 320 Conn.
554–55 (courts must look to substance of motion rather
than to its form).
We now turn to the allegations in the plaintiff’s
motion to open and supporting memorandum of law,
from which it is clear that the plaintiff sought to have the
court open the judgment of dissolution for the limited
purpose of reconsidering the financial orders, not for
the purpose of reinstating the parties’ marriage. In her
motion to open, the plaintiff ‘‘assert[ed] that the dissolu-
tion judgment was secured by fraud . . . specifically,
the defendant failed to disclose funds that he was hold-
ing in offshore bank accounts . . . .’’ As a result, the
plaintiff requested that the trial court ‘‘hold a new trial
as to all financial issues.’’ Similarly, in her memorandum
of law in support of her motion to open, the plaintiff
argued that the fraud was premised on nondisclosure
of certain offshore bank accounts and that, in light of
this financial fraud, ‘‘[l]aw and equity require[d] that
the stipulated dissolution judgment be opened and
vacated on such grounds, so that a fair division of the
parties’ assets may be had.’’
It is clear that the alleged fraud involved the defen-
dant’s assets alone. It is also clear that the plaintiff,
in filing the motion to open, requested that the court
reconsider the financial orders in response to this finan-
cial fraud. She did not request that the court open and
set aside that portion of the dissolution judgment dis-
solving the marriage. She specified that she wanted a
new trial as to the financial orders. She was not
attempting to have the marriage reinstated. Rather, she
was seeking ‘‘a fair division of the parties’ assets.’’
Although the plaintiff perhaps could have been more
explicit by stating specifically that she was requesting
that the judgment of dissolution be opened for the lim-
ited purpose of reconsidering the financial orders,
under Reville and Kenworthy, construing her pleadings
realistically, as we must, the substance of her motion
and supporting memorandum of law dispels any confu-
sion that she was requesting that the dissolution judg-
ment be opened for the limited purpose of reconsidering
the financial orders.
Because the plaintiff sought the opening of the disso-
lution judgment only for the limited purpose of recon-
sidering the financial orders, the granting of the motion
would not have reinstated the parties’ marriage, and
the coexecutors of the defendant’s estate could have
been substituted as defendants and stepped into the
deceased defendant’s shoes. Thus, the defendant’s
death did not defeat and render useless the underlying
civil proceeding. Therefore, the trial court improperly
denied the plaintiff’s motion to substitute the coexecu-
tors of the defendant’s estate in place of the defendant.
The judgment is reversed only as to the denial of
the plaintiff’s motion to substitute as defendants the
coexecutors of the defendant’s estate and the case is
remanded with direction to grant the motion and for
further proceedings according to law; the judgment is
affirmed in all other respects.
In this opinion the other justices concurred.
* April 27, 2020, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
Neither the defendant nor the coexecutors of his estate participated in
this appeal.
2
The plaintiff subsequently amended her motion to open to include allega-
tions that the defendant, in addition to failing to disclose the funds held in
Switzerland, also failed to disclose the existence of loans he had made in
excess of ten million dollars.
3
The defendant stipulated that he was waiving his right to a hearing under
Oneglia v. Oneglia, 14 Conn. App. 267, 270, 540 A.2d 713 (1988), which
requires a party seeking to open a judgment of dissolution on the ground
of fraud to substantiate the allegations of fraud beyond mere suspicion to
be entitled to open the judgment for the limited purpose of conducting
discovery. The defendant further stipulated that the plaintiff would have
been able to sustain her burden of establishing ‘‘ ‘beyond a mere suspicion’ ’’
that he had engaged in fraud.
4
In the plaintiff’s motion to substitute, she originally sought to substitute
the defendant’s son, Michael R. Foisie, the curator of the estate, in place
of the defendant. She subsequently amended her motion to substitute the
coexecutors of the defendant’s estate, Sir Clare Roberts and C. Kamilah
Roberts, in place of the defendant.
5
General Statutes § 46b-40 (a) provides: ‘‘A marriage is dissolved only by
(1) the death of one of the parties or (2) a decree of annulment or dissolution
of the marriage by a court of competent jurisdiction.’’
6
Although no brief was filed in opposition to the plaintiff’s brief, the
Connecticut chapter of the American Academy of Matrimonial Lawyers filed
a brief as amicus curiae, in which it argued that, if the granting of a motion
to open dissolves the divorce, thereby reinstating the parties’ marriage, we
should affirm the trial court’s judgment because, otherwise, there would be
serious consequences in cases in which a party subsequently has remarried.
If granting the motion, however, would affect only the financial orders, the
amicus argues, we should reverse the trial court’s judgment.
7
The trial court did not address the other two exceptions in § 52-599 (c)—
whether the motion to open depended on the continued existence of the
defendant, or whether the motion to open involved a civil action on a penal
statute. We determine that neither of these other exceptions applies in the
present case. As to whether the motion to open depends on the defendant’s
continued existence, for the same reason that the first exception does not
apply, this exception also does not apply—the defendant’s estate can take
the place of the defendant because granting the motion to open would not
reinstate the parties’ marriage but, rather, would affect only the financial
orders of the dissolution judgment. As to the third exception, this case does
not involve a civil action on a penal statute.
8
General Statutes § 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. . . .’’
9
We note that, although parties have filed motions to open dissolution
judgments seeking reinstatement of the dissolved marriage, the granting of
these motions ‘‘must not unfairly jeopardize interests of reliance that have
taken shape on the basis of the judgment.’’ (Internal quotation marks omit-
ted.) Billington v. Billington, supra, 220 Conn. 218 n.6. Even if a stipulated
judgment of dissolution were obtained by fraud and one of the parties would
not have agreed to the dissolution of the marriage in the absence of the
fraud, a court would have to consider whether reliance on the dissolution
judgment, for example, the subsequent remarriage of the parties to different
people, should prohibit the opening of the judgment and the reinstating of
the dissolved marriage.
10
Additionally, dissolution judgments may be opened for other limited
purposes, such as conducting discovery regarding a claim of fraud. See
Oneglia v. Oneglia, 14 Conn. App. 267, 270, 540 A.2d 713 (1988). Opening
dissolution judgments for this limited purpose might never lead to the rein-
statement of the underlying marriage.
11
General Statutes (Rev. to 1985) § 46b-81 (a) provides in relevant part:
‘‘At the time of entering a decree . . . dissolving a marriage . . . the supe-
rior court may assign to either the husband or wife all or any part of the
estate of the other . . . .’’
12
General Statutes § 46b-82 (a) provides in relevant part: ‘‘At the time of
entering the decree, the Superior Court may order either of the parties to
pay alimony to the other . . . .’’
13
In support of its conclusion that the plaintiff’s motion to open in the
present case was defeated and rendered useless by the defendant’s death,
the trial court relied on a series of Superior Court cases that held that, if
a party dies during the pendency of a dissolution proceeding before judgment
of dissolution has been rendered, the marriage is automatically dissolved
under § 46b-40, and, thus, substitution of the deceased party is prohibited
because the dissolution proceeding is defeated and rendered useless. See
Diana v. Diana, Superior Court, judicial district of Tolland, Docket No. FA-
99-69335 (September 14, 2001) (30 Conn. L. Rptr. 402, 403) (‘‘[t]he death of
a spouse automatically dissolves the marriage, and once the marriage is
dissolved by the death of one of the parties, the purpose for continuing an
action seeking to dissolve the marriage becomes meaningless’’); Dalton v.
Dalton, Superior Court, judicial district of Waterbury, Docket No. FA-95-
126681 (March 7, 1997) (19 Conn. L. Rptr. 169, 169) (‘‘the death of the
plaintiff has ended the court’s jurisdiction over the parties with regard to
the [pending] divorce’’); Misheff v. Misheff, Docket No. FA-XX-XXXXXXX, 1995
WL 781428, *2 (Conn. Super. December 12, 1995) (‘‘ ‘if an action for divorce
is commenced, and one of the parties dies thereafter, but before the entry
of a final decree, the action abates’ ’’).
All of these cases, however, are distinguishable because they involved
the death of a party prior to the rendering of a judgment of dissolution. In
those cases, the party’s death automatically dissolved the marriage under
§ 46b-40, and, thus, the action for dissolution abated because the trial court
could not dissolve an already dissolved marriage. These cases would apply
to the present case only if the granting of the motion to open reinstated the
parties’ marriage because, then, the defendant’s death would automatically
dissolve the reinstated marriage. These cases, however, do not shed any
light on whether granting a motion to open a dissolution judgment in fact
reinstates the marriage.
14
The Appellate Court has reached a similar conclusion, albeit sub silentio.
In Berzins v. Berzins, 122 Conn. App. 674, 998 A.2d 1265 (2010), rev’d, 306
Conn. 651, 51 A.3d 941 (2012), the defendant husband filed a motion to open
the judgment of dissolution, which the trial court denied. Id., 676. The
defendant husband appealed to the Appellate Court but died during the
pendency of the appeal. Id. The Appellate Court stayed the appeal until
there was compliance with § 52-599. Id., 676–77. The plaintiff wife subse-
quently filed a motion to substitute the administrator of the defendant’s
estate as the defendant, which the trial court granted. Id., 677. The adminis-
trator did not object to the motion to substitute. Id., 680.
As the proceedings progressed, the plaintiff wife filed, and the trial court
granted, a motion for sanctions and attorney’s fees against the administrator,
who then appealed to the Appellate Court, arguing that the trial court lacked
subject matter jurisdiction to sanction him on the ground that he had been
improperly substituted as a defendant because the motion to open abated
with the defendant husband’s death. Id., 678, 680. The Appellate Court
determined that the administrator was barred from raising this claim on
the basis of the principles of collateral estoppel; id., 681; because the Appel-
late Court, in deciding the motion to substitute, already had ‘‘determined
that the administrator was the proper party to be substituted in [the] action
and that the [plaintiff wife’s] action did not abate upon the death of [the
defendant husband]. See General Statutes § 52-599.’’ Berzins v. Berzins,
supra, 122 Conn. App. 680.