Gaary v. Gillis ( 2016 )


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    ELIZABETH A. GAARY v. PATRICK J. GILLIS
    (AC 37170)
    DiPentima, C. J., and Lavine and Alvord, Js.
    Argued October 26, 2015—officially released January 5, 2016
    (Appeal from Superior Court, judicial district of
    Stamford-Norwalk, Munro, J.)
    John R. Williams, for the appellant (defendant).
    Thomas M. Cassone, for the appellee (plaintiff).
    Opinion
    PER CURIAM. The defendant, Patrick J. Gillis,
    appeals from the postjudgment ruling of the trial court
    denying his motion to open prior postdissolution modi-
    fications of alimony and child support obligations on
    the ground of fraud.1 The defendant claims that the trial
    court abused its discretion in denying his motion to
    open because the plaintiff, Elizabeth A. Gaary, at the
    hearings on the prior postdissolution modification
    motions (1) ‘‘concealed . . . a lump sum payout of
    $700,000’’ in connection with the settlement of her pend-
    ing litigation in Michigan and (2) ‘‘concealed . . . the
    fact that her relationship with her Michigan partners
    was severed because of her intentional wrongdoing.’’
    We disagree and, accordingly, affirm the judgment of
    the trial court.
    The following facts and procedural history are rele-
    vant to our review of the defendant’s claims. The court,
    Munro, J., dissolved the parties’ fourteen year marriage
    on June 17, 2010. Various orders were entered at that
    time, including, inter alia, orders relating to alimony
    and child support for their two minor children. Approxi-
    mately one month after the dissolution judgment was
    rendered, the plaintiff, a radiologist, was terminated
    from her employment by Premier Medical Care, P.C.
    (Premier), a Michigan professional corporation.
    On August 6, 2010, the plaintiff filed a motion for
    modification to decrease the amount of alimony she
    was obligated to pay the defendant for the stated reason
    that her ‘‘employment [had been] involuntarily termi-
    nated.’’ On June 21, 2011, she filed a motion for modifi-
    cation to increase the defendant’s child support
    obligation, claiming a decrease in her employment
    income. A hearing on the plaintiff’s motion to modify
    her alimony obligation was held on June 7 and 8, 2011.
    At the conclusion of the hearing, the court ruled from
    the bench that alimony payments to the defendant were
    to be decreased from $1750 per week to $700 per week.
    As part of that ruling, the court stated: ‘‘I am going to
    provide for a second look after the litigation between
    the plaintiff and her former employer is concluded. . . .
    [T]he second look would have to occur after that trial
    is concluded, a result is obtained, and if no appeal
    is taken.’’
    On August 3, 2011, the court held a hearing on the
    plaintiff’s motion to increase the amount of child sup-
    port to be paid by the defendant. At the conclusion
    of the hearing, the court allowed the parties to file
    posthearing briefs. The court issued its memorandum
    of decision on February 8, 2012, in which it increased
    the amount of the defendant’s child support obligation
    for the minor children to $132 per week.
    In early January, 2012, the plaintiff’s attorneys in
    Michigan, who were representing her in the Michigan
    employment litigation, received a check in the amount
    of $700,000, payable jointly to the law firm and the
    plaintiff as settlement proceeds. On February 27, 2012,
    the defendant filed a postjudgment motion to modify
    the support and alimony orders entered on June 8, 2011,
    and February 8, 2012, claiming a substantial change in
    circumstances occasioned by the plaintiff’s receipt of
    $700,000 as ‘‘partial’’ settlement of the Michigan litiga-
    tion. On the same day, the defendant filed a motion to
    open the financial orders in the June 17, 2010 judgment
    of dissolution because, inter alia, the plaintiff ‘‘realized
    a $700,000 financial gain’’ from her business interests
    in Michigan even though she had claimed in 2010 that
    those interests had zero value. Those two motions were
    never pursued by the defendant or adjudicated by the
    trial court.
    On November 20, 2013, which was approximately
    twenty-two months after the defendant became aware
    of the receipt of the settlement proceeds, he filed his
    motion for an Oneglia hearing that is the subject of the
    present appeal. The defendant claimed that the June 8,
    2011 and February 8, 2012 rulings should be opened on
    the basis of fraud. Following the June 26, 2014 hearing
    on that motion, and the submission of posthearing
    briefs by the parties, the court issued its memorandum
    of decision on August 26, 2014, denying the defendant’s
    motion. The court found that ‘‘[t]he plaintiff had dis-
    closed the litigation pending in Michigan at the modifi-
    cation hearing. Therefore, there was no fraudulent
    representation.’’ This appeal followed.
    The defendant subsequently filed a motion for articu-
    lation that requested the trial court to articulate its
    holding regarding the defendant’s claim that the plaintiff
    had ‘‘fraudulently concealed the fact that the termina-
    tion of her prior employment was caused by her own
    actions.’’ In the court’s responsive articulation filed May
    26, 2015, it made the following factual findings: ‘‘The
    plaintiff had disclosed to the court and to the defendant
    that she had been terminated as an employee. . . . The
    plaintiff provided testimony about the termination on
    June 7, 2011. There was uncontroverted testimony that
    there was litigation pending between the plaintiff and
    [her former employer]. Testimony was elicited by the
    defendant’s legal counsel from the plaintiff that her
    termination was a surprise and that she had been placed
    on employment probation due to her poor perfor-
    mance.’’ For those reasons, the court concluded that
    there was no concealment as alleged by the defendant.
    We first set forth the applicable standard of review
    and legal principles that govern our analysis of the
    defendant’s claims. ‘‘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
    decision 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. . . .
    ‘‘Fraud consists in deception practiced in order to
    induce another to part with property or surrender some
    legal right, and which accomplishes 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 detriment.2 . . . A court’s determina-
    tions as to the elements of fraud are findings of fact
    that we will not disturb unless they are clearly errone-
    ous. . . . 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;3 (2) there must be clear proof of the fraud;
    and (3) there is a substantial likelihood that the result
    of the new trial will be different.’’ (Citation omitted;
    footnotes added; internal quotation marks omitted.)
    Spilke v. Spilke, 
    116 Conn. App. 590
    , 594–95, 
    976 A.2d 69
    , cert. denied, 
    294 Conn. 918
    , 
    984 A.2d 68
    (2009).
    ‘‘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.
    See Oneglia v. Oneglia, [
    14 Conn. App. 267
    , 269–70,
    
    540 A.2d 713
    (1988)] (approving trial court’s position
    that [i]f the plaintiff was able to substantiate her allega-
    tions of fraud beyond mere suspicion, then the court
    would open the judgment for the limited purpose of
    discovery, and would later issue an ultimate decision
    on the motion to open after discovery had been com-
    pleted and another hearing held).’’ (Citations omitted;
    internal quotation marks omitted.) Bruno v. Bruno, 
    146 Conn. App. 214
    , 231–32, 
    76 A.3d 725
    (2013).
    In the present case, the defendant was required to
    demonstrate that there was probable cause to believe
    that the court’s prior modifications of the parties’ ali-
    mony and child support obligations were obtained by
    fraud, i.e., that the plaintiff had concealed the receipt
    of settlement proceeds from her Michigan employment
    litigation and that she concealed that she was termi-
    nated from her previous employment ‘‘because of her
    intentional wrongdoing.’’
    The trial court determined, after the requisite hearing;
    see Bruno v. 
    Bruno, supra
    , 
    146 Conn. App. 232
    –33; that
    the defendant failed to demonstrate that the plaintiff
    had concealed these matters during the hearings on the
    prior modification hearings. The court’s findings in this
    regard are not clearly erroneous and are fully supported
    by the record. With respect to the settlement proceeds,
    it is apparent that the defendant was aware of the pend-
    ing Michigan litigation and the possibility that it would
    settle or proceed to trial at the time of those modifica-
    tion hearings. At the beginning of the June 7, 2011 hear-
    ing on the plaintiff’s motion to decrease her alimony
    obligation to the defendant, the defendant’s counsel
    requested a continuance because ‘‘there is litigation as
    [to] whether [the plaintiff] was wrongfully terminated’’
    and it was not known at that point ‘‘whether she has
    certain rights as to reinstatement, as to damages, [or]
    as to back pay . . . .’’4 For that reason, the defendant
    ‘‘object[ed] to her proceeding on the motion to modify
    at [that] time and respectfully request[ed] that any pros-
    ecution of this motion be continued or adjourned until
    such time as there is a final decision in the matter of—
    in the matters pending in the state of Michigan.’’
    After the court denied the motion for a continuance,
    the two day hearing proceeded with the plaintiff’s testi-
    mony. On cross-examination, the defendant’s counsel
    focused on the pending employment litigation. In
    responding to his questions, and the questions of her
    own counsel, the plaintiff testified that she was sur-
    prised by her termination from employment, that her
    employer had filed a lawsuit against her immediately
    after she had received the notice of termination, that
    she could not use her former employer as a reference
    for future employment because of the ‘‘contentious’’
    nature of their relationship, and that her employer had
    contested her right to any unemployment compensa-
    tion. The notice of termination, at the request of the
    defendant’s counsel, was marked as a full exhibit. Refer-
    ring to the exhibit, the defendant’s counsel stated:
    ‘‘[T]he reason for your termination was for cause, cor-
    rect?’’ The plaintiff responded: ‘‘That’s what they
    allege, yes.’’
    The hearing was continued to the next day, June 8,
    2011. At that time, the plaintiff continued to respond
    to the defendant’s questions regarding her termination
    of employment. The plaintiff testified: ‘‘[T]heir alleged
    cause for firing me was regarding outside activities as
    an assistant clinical professor at Columbia and teach-
    ing.’’ She also acknowledged that her former employer
    was ‘‘asking me to resign or take some kind of admission
    of fault.’’ Additionally, when asked by the defendant’s
    counsel, ‘‘what do you think your case is worth,’’ the
    plaintiff stated that she did not know because the matter
    still was being litigated.5
    After witness testimony had concluded, the parties’
    counsel made closing arguments to the court. The
    defendant’s counsel stated: ‘‘[I]t appears from the plead-
    ings and it appears from the exhibit, which is the admin-
    istrative law judge’s decision upholding [the plaintiff’s]
    award of unemployment compensation . . . it appears
    that—which, according to [the plaintiff], was not
    appealed—it appears that she has a pretty good case,
    that she was wrongfully terminated in Michigan, and
    that—you, know, she is going to be entitled to some
    kind of an award or some kind of a settlement. We
    don’t know what that is going to be.’’6 For that reason,
    the defendant’s counsel requested that the court include
    a provision in its ruling for a ‘‘second look’’ after the
    litigation concluded: ‘‘I would think, at the very least,
    that we would have a second look to any decision Your
    Honor might make after that decision comes down in
    Michigan to see how it would impact on [the plaintiff’s]
    income since her termination . . . .’’ The court agreed
    with the request of the defendant’s counsel and, in its
    ruling made at the end of the hearing, stated: ‘‘I am
    going to provide for a second look after the litigation
    between the plaintiff and her former employer is con-
    cluded.’’
    At the August 3, 2011 hearing on the plaintiff’s motion
    to increase the defendant’s child support obligation,
    again there were questions addressed to the status of
    the ongoing Michigan employment litigation. The defen-
    dant’s counsel asked the plaintiff whether she had
    retained an expert to value her interest in Premier. She
    responded in the affirmative, and counsel then asked:
    ‘‘Didn’t your expert render an opinion that your interest
    in Premier had a fair value in excess of $1.6 million.’’
    She stated that her expert had reached that conclusion.
    The defendant became aware of the settlement, or
    partial settlement, of the Michigan employment litiga-
    tion and the amount of the settlement proceeds in Janu-
    ary, 2012. On February 27, 2012, the defendant filed a
    postjudgment motion to modify the support and ali-
    mony orders entered on June 8, 2011, and February 8,
    2012, that was based on the plaintiff’s receipt of the
    settlement proceeds, and a motion to open the financial
    orders in the June 17, 2010 judgment of dissolution on
    the ground that the plaintiff had claimed in 2010 that
    her interest in Premier had zero value. The defendant,
    however, did not pursue those motions, and did not
    seek adjudication of these issues by the court. Instead,
    the defendant filed the present motion for an Oneglia
    hearing on November 20, 2013, claiming fraud through
    the plaintiff’s alleged concealment of the amount of the
    settlement proceeds and the reason for her termination
    from employment.
    After the defendant’s presentation of evidence at the
    June 26, 2014 hearing, the court concluded that ‘‘there
    was no fraudulent representation’’ because ‘‘[t]he plain-
    tiff had disclosed the litigation pending in Michigan at
    the modification hearing,’’ and ‘‘[t]he plaintiff provided
    testimony about the termination on June 7, 2011 [such
    that the court] does not find . . . a concealment as
    alleged by the defendant.’’ The court’s findings and con-
    clusions are amply supported by the record, as evi-
    denced by the quoted excerpts from the transcripts of
    the hearings on the prior motions for modification. We
    conclude that the court correctly determined that the
    defendant was unable to meet the minimal evidentiary
    threshold of establishing his allegations of fraud beyond
    a mere suspicion, and, therefore, that the court did not
    abuse its discretion in denying the defendant’s motion
    to open the prior postdissolution modifications of ali-
    mony and child support.
    The judgment is affirmed.
    1
    The defendant’s motion, dated November 20, 2013, was titled ‘‘Motion
    to Modify Judgment as Modified by Court Orders (Malone, J.) Entered June
    8, 2011, and February 8, 2012.’’ At the time of the June 26, 2014 hearing on
    the defendant’s ‘‘Motion to Modify,’’ the parties agreed that the motion was
    in essence a motion to open for fraud, which necessitated a hearing pursuant
    to Oneglia v. Oneglia, 
    14 Conn. App. 267
    , 
    540 A.2d 713
    (1988), as evidenced
    by the following colloquy:
    ‘‘The Court: [A]s I read through the motion, while it is entitled motion to
    modify, looking at the body of the motion, I interpret this to be essentially
    a motion for an Oneglia hearing to determine whether there is a basis to
    go forward with a formal hearing to reopen decisions that were entered by
    me and found by me on June 8, 2011, and February 8, 2012. Is that correct?
    ‘‘[The Defendant’s Counsel]: Yes, Your Honor. I have no problem with
    proceeding on the basis of this being an Oneglia hearing. I think that we’re
    prepared with the evidence that will meet that burden.
    ‘‘The Court: All right. Is that your understanding, sir?
    ‘‘[The Plaintiff’s Counsel]: Yes, Your Honor. . . . [W]e are here and pre-
    sent for a preliminary Oneglia hearing . . . .’’
    2
    Under certain circumstances, fraud may consist of silence or conceal-
    ment when a person is under a duty to disclose information. See Reville v.
    Reville, 
    312 Conn. 428
    , 441, 
    93 A.3d 1076
    (2014).
    3
    The plaintiff claims, as an alternative ground for affirmance of the judg-
    ment, that the defendant’s motion ‘‘should have been denied as a result of
    laches and his inexcusable delay in its filing.’’ In light of our resolution of
    the defendant’s claims, we need not reach the plaintiff’s alternative ground
    for affirmance.
    4
    A copy of the complaint and counterclaim pertaining to the Michigan
    employment litigated already had been provided to the defendant.
    5
    In the plaintiff’s June 6, 2011 financial affidavit, she listed the Michigan
    litigation under ‘‘all other assets’’ with the following explanation: ‘‘Net value
    of Premier v. Affiant (Employment Litigation) not included. Outcome of
    litigation could result in some [additional] liability or asset . . . .’’
    6
    Despite having made the statement that it appeared that the plaintiff had
    been ‘‘wrongfully terminated,’’ the defendant’s counsel made a subsequent
    statement during closing arguments that ‘‘reading the complaint and the
    counterclaim [from the Michigan litigation], there may be some basis for
    suspecting that [the plaintiff] may have caused her own problems in this
    regard.’’
    

Document Info

Docket Number: AC37170

Filed Date: 1/5/2016

Precedential Status: Precedential

Modified Date: 4/17/2021