Cimino v. Cimino , 174 Conn. App. 1 ( 2017 )

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GINA CIMINO v. JOSEPH CIMINO
(AC 38705)
DiPentima, C. J., and Prescott and Beach, Js.
Argued January 6—officially released June 20, 2017
(Appeal from Superior Court, judicial district of New
Haven, Gould, J. [judgment]; Goodrow, J. [motion to
open].)
Gina Cimino, self-represented, the appellant
(plaintiff).
Christopher T. Goulden, with whom, on the brief,
were Janis M. Laliberte and Margaret Sullivan, for the
appellee (defendant).
Opinion
DiPENTIMA, C. J. The plaintiff, Gina Cimino, appeals
from the judgment of the trial court denying her motion
to open and vacate the judgment dissolving her mar-
riage to the defendant, Joseph Cimino. On appeal, she
argues that (1) the dissolution court committed plain
error in its valuation of the defendant’s pension and
(2) the trial court abused its discretion in denying her
motion to open the judgment. We decline to address
the claim that the dissolution court committed plain
error and affirm the judgment of the trial court.
In a previous decision of this court, we set forth the
following facts. ‘‘In a memorandum of decision dated
July 25, 2013, the [dissolution] court found [that] . . .
[t]he parties’ twenty-nine year marriage had broken
down irretrievably and neither party was more at fault
than the other for the breakdown. The plaintiff was
fifty-four years old, in reasonably good health, and a
college graduate with a Master’s degree in business
administration. The parties stipulated the plaintiff’s
earning capacity to be $37,000 per year. Although she
had not worked outside of the home since 1990, the
plaintiff had a business making wreaths and ornaments.
‘‘The defendant has been employed by the Internal
Revenue Service for thirty years and, at the time of
trial, earned $119,548 per year. At the time of the memo-
randum of decision, the defendant had a thrift savings
plan with a balance of $124,377.16 and a [pension], in
lieu of social security, in the amount of $147,000. . . .
‘‘The court . . . ordered the defendant to pay ali-
mony in the amount of $600 per week for a period of
ten years to the plaintiff. The plaintiff was awarded the
thrift savings plan valued at approximately $124,000
and an individual retirement account valued at $11,216.
The defendant was awarded the [pension] fund.’’ Cim-
ino v. Cimino, 155 Conn. App. 298, 299–300, 109 A.3d
546, cert. denied, 316 Conn. 912, 111 A.3d 886 (2015).
On August 3, 2015, the plaintiff filed a motion to open
and vacate the July 25, 2013 dissolution judgment on
the bases of fraud, intentional misrepresentation and/
or mutual mistake.1 She argued, inter alia, that the
defendant had provided only the value of his contribu-
tions to the pension, approximately $147,000, rather
than its actual value, which was substantially higher,2
and that the defendant had failed to disclose approxi-
mately $50,000 in gifts from his family. The plaintiff
sought to conduct postjudgment discovery pursuant to
our decision in Oneglia v. Oneglia, 14 Conn. App. 267,
540 A.2d 713 (1988), and sought an order vacating the
judgment on the basis of either fraud or mutual mistake,
and any other equitable relief.3 The defendant filed an
opposition to the motion to open on September 16, 2015.
The trial court held a hearing on November 20, 2015.
Approximately three weeks later, the court issued a
memorandum of decision denying the plaintiff’s motion
to open. This appeal followed.4 Additional facts will be
set forth as necessary.
Before addressing the specific claims of the plaintiff,
we set forth our standard of review and the relevant
legal principles. ‘‘Our review of a court’s denial of a
motion to open [based on fraud] is well settled. We do
not undertake a plenary review of the merits of a deci-
sion of the trial court . . . to deny a motion to open
a judgment. . . . In an appeal from a denial of a motion
to open a judgment, our review is limited to the issue
of whether the trial court has acted unreasonably and
in clear abuse of its discretion. . . . In determining
whether the trial court abused its discretion, this court
must make every reasonable presumption in favor of
its action. . . . The manner in which [this] discretion
is exercised will not be disturbed so long as the court
could reasonably conclude as it did. . . .
‘‘In considering a motion to open the judgment on the
basis of fraud, then, the trial court must first determine
whether there is probable cause to open the judgment
for the limited purpose of proceeding with discovery
related to the fraud claim. . . . This preliminary hear-
ing is not intended to be a full scale trial on the merits
of the [moving party’s] claim. The [moving party] does
not have to establish that he will prevail, only that there
is probable cause to sustain the validity of the claim.
. . . If the moving party demonstrates to the court that
there is probable cause to believe that the judgment
was obtained by fraud, the court may permit discovery.’’
(Internal quotation marks omitted.) Gaary v. Gillis, 162
Conn. App. 251, 255–57, 131 A.3d 765 (2016); see also
Spilke v. Spilke, 116 Conn. App. 590, 594–95, 976 A.2d
69, cert. denied, 294 Conn. 918, 984 A.2d 68 (2009).
I
The plaintiff first claims that the dissolution court
committed plain error in its valuation of the defendant’s
pension. Specifically, she argues that the dissolution
court valued the pension by using the defendant’s con-
tributions of $147,000, and that it should have used a
different method to determine its actual value, which,
she claims, exceeds $1 million. We decline to consider
this claim because it is an untimely collateral attack on
the judgment of the dissolution court and, therefore,
outside the purview of this appeal taken from the denial
of the motion to open the judgment.
The plaintiff failed to challenge the valuation of the
pension in her prior appeal. See Cimino v. Cimino,
supra, 155 Conn. App. 299. A challenge to the propriety
of findings and determinations of the dissolution court
should have been made within twenty days of the disso-
lution judgment, and not nearly two years later via a
motion to open. See, e.g., Berzins v. Berzins, 105 Conn.
App. 648, 649 n.1, 938 A.2d 1281, cert. denied, 289 Conn.
932, 958 A.2d 156 (2008). The present appeal is thus
limited to whether the trial court acted unreasonably
or in a clear abuse of its discretion in denying the
plaintiff’s motion to open the judgment on the basis of
fraud. Gaary v. Gillis, supra, 162 Conn. App. 255–56;
see also Chapman Lumber, Inc. v. Tager, 288 Conn.
69, 94–95, 952 A.2d 1 (2008); Farren v. Farren, 142
Conn. App. 145, 152, 64 A.3d 352, cert. denied, 309 Conn.
903, 68 A.3d 658 (2013). Simply stated, the plaintiff’s
claim of plain error by the dissolution court is an
untimely and impermissible collateral attack of that
judgment. See CUDA & Associates, LLC v. Smith, 144
Conn. App. 763, 766, 73 A.3d 848 (2013). The plaintiff’s
claim regarding the valuation of the pension by the
dissolution court is not properly before us in this appeal
and, therefore, we are unable to consider the propriety
of the court’s valuation.
II
The plaintiff next claims that the trial court abused
its discretion in denying her motion to open the judg-
ment on the basis of fraud. Specifically, she argues that
the defendant misrepresented the value of his pension
and failed to include monetary gifts from his family in
his financial affidavits. We conclude that the court did
not abuse its discretion in denying the plaintiff’s motion.
A
We first consider the plaintiff’s argument that the
defendant misrepresented the value of his pension in
his financial affidavit. Specifically, she contends that
he failed to disclose the actual value of his pension, or
to provide her with a ‘‘pension booklet’’ that contained
the information necessary to calculate its actual value.
With respect to this issue of the pension, the court
found that ‘‘[a]t the time of the dissolution trial, the
defendant disclosed on his financial affidavit the details
[that] he knew [regarding] his pension.’’ The court fur-
ther noted that the plaintiff had obtained a copy of the
pension benefits statement dated January 2, 2011. This
statement, which was admitted into evidence at both
the dissolution trial and the hearing on the motion to
open, listed the defendant’s expected monthly annuity
if he retired at age fifty-five, sixty or sixty-two. The
statement also provided the estimated monthly annuity
for the defendant’s thrift savings plan.
The court further found that the defendant credibly
had testified at both the dissolution trial and the hearing
on the motion to open that ‘‘he had no knowledge of
the value of the pension. He relied instead on [the state-
ment] for the anticipated monthly payout under the
[pension]. . . . The defendant also credibly testified at
the hearing that he complied with all discovery requests.
Neither of the plaintiff’s two trial attorneys made any
request for the pension booklet, nor did either request
an opportunity to obtain the value of the pension prior
to the completion of the dissolution trial. This court
infers that said nonaction by [the] plaintiff’s attorneys
was a tactical decision. Further, there is no credible
evidence that the plaintiff relied to her detriment on
any alleged failure to disclose. The defendant met his
obligation of disclosing what he understood about his
pension. There was no fraud, intentional misrepresenta-
tion or mutual mistake regarding the value of the pen-
sion or the pension booklet.’’ (Citation omitted.)
The plaintiff claims that the court improperly denied
her motion to open with respect to her claim that the
defendant committed fraud and/or intentionally misrep-
resented the value of his pension. Specifically, she
argues that the defendant failed to provide documents
regarding the ‘‘salient details’’ or the ‘‘total worth’’ of
the pension, that she was unable to obtain a copy of
the pension booklet on her own, and that information
regarding the pension was readily available and accessi-
ble by the defendant. The plaintiff also claims that the
defendant’s failure to provide her the information
regarding his pension runs counter to the requirement
set forth in several decisions from our Supreme Court
of a ‘‘full and frank’’ disclosure of financial information.
Finally, she argues that several of the court’s findings
were clearly erroneous. We are not persuaded by
these contentions.
We first identify the applicable legal principles. In
Reville v. Reville, 312 Conn. 428, 441, 93 A.3d 1076(2014), our Supreme Court discussed the elements of
an action for fraud, as well as the principles related to
fraud by nondisclosure. ‘‘Fraud consists in deception
practiced in order to induce another to part with prop-
erty or surrender some legal right, and which accom-
plishes the end designed. . . . The elements of a fraud
action are: (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 detri-
ment. . . . A marital judgment based upon a stipula-
tion may be opened if the stipulation, and thus the
judgment, was obtained by fraud. . . .
‘‘Fraud by nondisclosure, which expands on the first
three of [the] four elements [of fraud], involves the
failure to make a full and fair disclosure of known
facts connected with a matter about which a party has
assumed to speak, under circumstances in which there
is a duty to speak. . . . A lack of full and fair disclosure
of such facts must be accompanied by an intent or
expectation that the other party will make or will con-
tinue in a mistake, in order to induce that other party
to act to her detriment. . . . In a marital dissolution
case, the requirement of a duty to speak is imposed by
Practice Book § [25-30], requiring the exchange and
filing of financial affidavits . . . and by the nature of
the marital relationship.’’ (Citation omitted; internal
quotation marks omitted.) Id.
Additionally, our Supreme Court has noted the impor-
tance of the disclosure of financial information between
the parties in a dissolution proceeding. ‘‘Our [rules of
practice have] long required that at the time a dissolu-
tion of marriage, legal separation or annulment action
is claimed for a hearing, the moving party shall file a
sworn statement . . . of current income, expenses,
assets and liabilities, and pertinent records of employ-
ment, gross earnings, gross wages and all other income.
. . . The opposing party is required to file a similar
affidavit at least three days before the date of the hear-
ing . . . .
‘‘Our cases have uniformly emphasized the need for
full and frank disclosure in that affidavit. A court is
entitled to rely upon the truth and accuracy of sworn
statements required by . . . the [rules of practice], and
a misrepresentation of assets and income is a serious
and intolerable dereliction on the part of the affiant
which goes to the very heart of the judicial proceeding.
. . . These sworn statements have great significance
in domestic disputes in that they serve to facilitate the
process and avoid the necessity of testimony in public
by persons still married to each other regarding the
circumstances of their formerly private existence. . . .
‘‘Moreover . . . [l]awyers who represent clients in
matrimonial dissolutions have a special responsibility
for full and fair disclosure, for a searching dialogue,
about all of the facts that materially affect the client’s
rights and interests.’’ (Citation omitted; internal quota-
tion marks omitted.) Weinstein v. Weinstein, 275 Conn.
671, 686–87, 882 A.2d 53 (2005); see also Ramin v.
Ramin, 281 Conn. 324, 353–54, 915 A.2d 790 (2007);
Billington v. Billington, 220 Conn. 212, 219–20, 595
A.2d 1377 (1991). Our Supreme Court also compared
the duty of full disclosure between parties seeking to
terminate their marriage to that owed to a beneficiary
by a fiduciary. Weinstein v. Weinstein, supra, 687.
In the present case, the court found that the defen-
dant credibly testified that he had disclosed all of the
information that he had about his pension in his finan-
cial affidavits during the dissolution proceedings. ‘‘[A]s
a general rule, appellate courts do not make credibility
determinations. [I]t is within the province of the trial
court, when sitting as the fact finder, to weigh the evi-
dence presented and determine the credibility and
effect to be given the evidence. . . . Credibility must
be assessed . . . not by reading the cold printed
record, but by observing firsthand the witness’ conduct,
demeanor and attitude. . . . An appellate court must
defer to the trier of fact’s assessment of credibility
because [i]t is the [fact finder] . . . [who has] an oppor-
tunity to observe the demeanor of the witnesses and
the parties; thus [the fact finder] is best able to judge
the credibility of the witnesses and to draw necessary
inferences from them.’’ (Internal quotation marks omit-
ted.) Zilkha v. Zilkha, 167 Conn. App. 480, 487–88, 144
A.3d 447 (2016); see also McTiernan v. McTiernan, 164
Conn. App. 805, 829, 138 A.3d 935 (2016) (not province
of appellate court to find facts or make credibility deter-
minations); Hendricks v. Haydu, 160 Conn. App. 103,
109 n.7, 124 A.3d 554 (2015) (exclusive function of trier
of fact to determine credibility of witnesses).
The court also found, based on the defendant’s testi-
mony during both the dissolution trial and the hearing
on the motion to open, that he lacked any knowledge of
the actual value of the pension aside from the monthly
annuities for three different retirement ages. Finally,
the court found that the plaintiff never requested the
pension booklet nor sought a valuation of the pension
during the dissolution proceedings.
The plaintiff bases her claims regarding the pension
on her interpretation of the facts. In her view, the defen-
dant either knew the true value of the pension or knew
of the existence of the pension booklet, which con-
tained the essential details necessary to calculate the
actual value, and that he intentionally failed to furnish
this information in violation of the obligation of full
and frank disclosure.
The factual findings made by the court with respect
to the defendant’s conduct do not support the plaintiff’s
‘‘interpretation of the facts.’’ We have no basis to con-
clude that the court’s findings were improper. Aside
from speculation and conjecture, there is no evidence
that the defendant had knowledge of either the total
value of the pension or the details in the pension booklet
that would allow for a calculation of said value. Addi-
tionally, the plaintiff failed to demonstrate that the
defendant should have known that the information con-
tained in the pension booklet was something that he
should have disclosed. Furthermore, we disagree with
the plaintiff’s supposition that the defendant engaged
in ‘‘gamesmanship’’ to deceive both the trial court and
the plaintiff with respect to this financial information.
On the basis of its subordinate factual findings regard-
ing the conduct of the defendant,5 the court properly
determined that there was no probable cause to justify
opening the judgment for the limited purpose of discov-
ery. See, e.g., Sousa v. Sousa, 173 Conn. App. 755,
A.3d (2017). We cannot conclude that the court
abused its discretion in denying the plaintiff’s motion
to open with respect to the issue of the defendant’s
pension.
B
The plaintiff also argues that the court improperly
denied her motion to open with respect to the claim
that the defendant fraudulently failed to list $50,000 in
gifts from his family in his financial affidavit. Specifi-
cally, she claims that the defendant’s father gave $25,000
to the defendant’s brother in both 2011 and 2012, during
the pendency of the dissolution proceeding, and the
brother then distributed that $50,000 to the defendant
after the judgment of dissolution had been rendered.
In other words, the manner in which the gifts were
made was done for a fraudulent purpose, i.e., to avoid
inclusion in the defendant’s financial affidavits and divi-
sion as marital property. We disagree.
The court found that it had been customary for the
defendant’s parents to give their children and their chil-
dren’s spouses significant monetary gifts each Decem-
ber. It credited the defendant’s testimony that he was
not promised this money and that his parents did not
want to give him a gift during the pendency of the
dissolution action. Additionally, the court credited the
testimony of the defendant’s brother that the $50,000
he gave to the defendant after the dissolution judgment
was from him and not their parents.
The plaintiff makes several arguments in support of
her contention that the defendant knew that his parents
had given his annual gift in 2011 and 2012 to his brother
to hold until the judgment had been rendered in the
dissolution action. These arguments, however, must fail
in light of the court’s finding that ‘‘[a]t the time of the
dissolution, the defendant had no present interest in
the postjudgment gifts from his brother. Any hope that
the defendant may have had that he would receive gifts
of money from the defendant’s family was merely specu-
lative.’’ This finding, based on the court’s credibility
determinations of the defendant’s brother and the
defendant, defeats the plaintiff’s claims regarding the
fraudulent nature of the $50,000 gift. As we previously
noted, it is the province of the trial court to act as the
finder of fact and to make determinations regarding the
credibility of the witnesses. See Zilkha v. Zilkha, supra,
167 Conn. App. 487–88; see also McTiernan v. McTier-
nan, supra, 164 Conn. App. 829; Hendricks v. Haydu,
supra, 160 Conn. App. 109 n.7. We conclude, therefore,
that the court did not abuse its discretion in denying
the motion to open the judgment on the basis of fraud
with respect to the family gifts.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff entitled her motion a ‘‘Motion to Reopen,’’ which was not
technically correct because the judgment had not been opened previously.
‘‘Although the motion was entitled a motion to reopen, we note that because
the motion had not been opened previously, the use of that term is both
improper and misleading. . . . The appropriate phrase is motion to open,
and we reference it in this opinion accordingly.’’ (Internal quotation marks
omitted.) State v. Wahab, 122 Conn. App. 537, 539 n.2, 2 A.3d 7, cert. denied,
298 Conn. 918, 4 A.3d 1230 (2010).
2
In the motion to open, the plaintiff argued that the pension had a value
of $1,269,888.
3
We have stated that ‘‘[u]ntil a motion to open has been granted, the
earlier judgment is unaffected, which means that there is no active civil
matter. See Oneglia v. Oneglia, supra, 14 Conn. App. 269. In this postjudg-
ment posture, discovery is not available to the moving party for the simple
reason that discovery is permitted only when a cause of action is pending.
See id., 270 n.2 (For us to say that [the discovery] provisions [of General
Statutes § 52-197 [a] and Practice Book § 13-2] apply only when there is a
cause of action currently pending is to state the obvious. Until and unless
the trial court opened the previous judgment, there would be no civil action
within the meaning of General Statutes § 52-197 or Practice Book § [13-2].).
In short, there is no such thing as postjudgment discovery in a vacuum. . . .
‘‘In considering a motion to open the judgment on the basis of fraud,
then, the trial court must first determine whether there is probable cause
to open the judgment for the limited purpose of proceeding with discovery
related to the fraud claim. . . . This preliminary hearing is not intended to
be a full scale trial on the merits of the [moving party’s] claim. The [moving
party] does not have to establish that he will prevail, only that there is
probable cause to sustain the validity of the claim. . . . If the moving party
demonstrates to the court that there is probable cause to believe that the
judgment was obtained by fraud, the court may permit discovery.’’ (Citations
omitted; footnote omitted; internal quotation marks omitted.) Bruno v.
Bruno, 146 Conn. App. 214, 230–31, 76 A.3d 725 (2013).
4
‘‘The denial of a motion to open is an appealable final judgment.’’ (Internal
quotation marks omitted.) Worth v. Korta, 132 Conn. App. 154, 158, 31 A.3d
804 (2011), cert. denied, 304 Conn. 905, 38 A.3d 1201 (2012).
5
We iterate that the court credited the testimony of the defendant and
expressly found that ‘‘he had no knowledge of the value of the pension . . .
that he complied with all discovery requests . . . [and] met his obligation
of disclosing what he understood about his pension. There was no fraud,
intentional misrepresentation or mutual mistake regarding the value of the
pension or the pension booklet.’’