Pospisil v. Pospisil

757 A.2d 655, 59 Conn. App. 446, 2000 Conn. App. LEXIS 408
CourtConnecticut Appellate Court
DecidedAugust 22, 2000
DocketAC 19037
StatusPublished
Cited by17 cases

This text of 757 A.2d 655 (Pospisil v. Pospisil) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pospisil v. Pospisil, 757 A.2d 655, 59 Conn. App. 446, 2000 Conn. App. LEXIS 408 (Colo. Ct. App. 2000).

Opinion

Opinion

PELLEGRINO, J.

The defendant, Edward Pospisil, appeals from the trial court’s denial of his motion to open the judgment of dissolution of his marriage with the plaintiff, Susan Pospisil. The defendant claims that the court (1) abused its discretion by denying his motion to open the judgment and (2) improperly granted the plaintiff’s motion for counsel fees. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On August 2,1995, the parties entered into a written agreement to dissolve their twenty-five year marriage. The parties’ agreement was incorporated into the judgment of dissolution. As of the date of the dissolution of the marriage, the parties had four minor children, and the defendant was awarded sole custody of them. The agreement required the plaintiff to pay support to the defendant in an amount as provided under the child support guidelines,1 and the defendant agreed to pay alimony in the same amount as the plaintiffs support obligation, so that in effect the obligations of both parties were equal and offset each other. The defendant’s alimony obligation was to terminate at the time the plaintiffs support obligation terminates. There was no provision in the agreement for termination of the alimony at the time the plaintiff remarries. During the negotiation of the dissolution agreement, the plaintiff harbored, but never disclosed, an intention to remarry after the dissolution [448]*448of the marriage. On October 7,1995, approximately two months after the dissolution judgment was rendered, the plaintiff remarried.

On June 15, 1998, the plaintiff caused the defendant to be served with a motion for contempt for his failure to execute a qualified domestic relations order. Thereafter, on July 27, 1998, the defendant filed a motion to open the dissolution judgment on the basis of fraud. On September 11, 1998, the plaintiff, pursuant to General Statutes § 46b-62,2 filed a motion for counsel fees, claiming that the defendant’s motion to open lacked merit. After a hearing on October 28, 1998, the court denied the defendant’s motion to open the judgment, denied the plaintiffs motion for contempt and granted her motion for counsel fees. On November 17, 1998, the defendant filed this appeal. Subsequently, on February 2, 1999, the defendant filed a motion for articulation, to which the trial court responded on June 22, 1999, with an oral articulation.

I

The defendant first claims that the court abused its discretion by denying his motion to open the dissolution judgment. We disagree.

At the hearing on the defendant’s motion to open, the defendant claimed that the plaintiffs failure to disclose her intention to remarry was a material fact that the defendant should have been accorded the opportunity to consider when the parties entered into the dissolution agreement. The defendant argued that because the plaintiffs failure to disclose her intention to remarry amounted to fraud, the court should open the dissolu[449]*449tion judgment. The court reasoned that because an intention to remarry in the future is not a fact but a mere expectation or ambition, the nondisclosure of such an intention was not a misrepresentation of a fact that would support a finding of fraud. Because the plaintiffs actions did not amount to fraud, the court denied the defendant’s motion to open the judgment.

Our review of a court’s denial of a motion to open is well settled. “We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment.” (Internal quotation marks omitted.)Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 809, 695 A.2d 1010 (1997). “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.” Carlin Contracting Co. v. Dept. of Consumer Protection, 49 Conn. App. 501, 502-503, 714 A.2d 714 (1998). “In determining whether the trial court abused its discretion, this court must make eveiy 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.” (Internal quotation marks omitted.) Searles v. Schulman, 58 Conn. App. 373, 377, 753 A.2d 420 (2000).

The defendant argues that the court abused its discretion by denying his motion to open the dissolution judgment because the plaintiffs failure to disclose her intention to remarry amounted to a fraudulent nondisclosure of a material fact. The plaintiff asserts that the court properly denied the defendant’s motion to open the dissolution judgment because her failure to disclose an intention to remarry in the future does not amount to a fraudulent nondisclosure.

It is clear that a “marital judgment based upon a stipulation may be opened if the stipulation, and thus [450]*450judgment, was obtained by fraud.” Billington v. Billington, 220 Conn. 212, 217-18, 595 A.2d 1377 (1991); Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980). It is equally well established that a stipulated marital judgment may be opened if obtained by fraudulent nondisclosure. See Gelinas v. Gelinas, 10 Conn. App. 167, 173, 522 A.2d 295, cert. denied, 204 Conn. 802, 525 A.2d 965 (1987); Jackson v. Jackson, 2 Conn. App. 179, 194, 478 A.2d 1026, cert. denied, 194 Conn. 805, 482 A.2d 710 (1984). “Fraud involves deception practiced in order to induce another to act to her detriment, and which causes that detrimental action.” Gelinas v. Gelinas, supra, 173. “The four essential elements of fraud are (1) that a false representation of fact was made; (2) that the party making the representation knew it to be false; (3) that the representation was made to induce action by the other party; and (4) that the other party did so act to her detriment. . . . Fraud by nondisclosure, which expands on the first three of these four elements, 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.” Id. A judgment will be set aside on the basis of fraud, however, only if the movant is not barred by any of the following restrictions: (1) there must have been no laches or unreasonable delay by the injured party after the fraud was discovered; (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. Billington v. Billington, supra, 218.

In the present case, it is clear that the plaintiff harbored, but never disclosed, an intention to remarry at some point after the dissolution of her marriage with the defendant.

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Bluebook (online)
757 A.2d 655, 59 Conn. App. 446, 2000 Conn. App. LEXIS 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pospisil-v-pospisil-connappct-2000.