Opinion
LLIFA124011700
12-04-2017
Donna MAGUIRE fka Donna Veneziano v. James VENEZIANO
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO OPEN JUDGMENT (# 228)
The plaintiff has also filed two motions for contempt. The court heard testimony as to those motions as well but indicated at the time of the hearing that the motion to open would be addressed first. In light of the court’s decision herein, a separate decision on the motions for contempt shall be issued anon.
Kari A. Dooley, Judge
Preliminary Statement
The parties were divorced on October 29, 2013. The judgment of dissolution incorporated the parties’ separation agreement. By motion dated August 31, 2017 and purportedly amended November 8, 2017, the defendant seeks to open the judgment in this dissolution action on the basis of fraud, intentional misrepresentation and mutual mistake. His principal claim is that the plaintiff misrepresented the parties’ stock ownership of Village Mortgage Company (VMC), concededly the largest marital asset at the time of the dissolution. He asserts that although the plaintiff claimed that they were joint owners of the corporate shares in VMC, he had been stripped of his shares and any ownership interest by February 2012. On November 15, 2017, the court held a hearing to determine whether there was probable cause that the defendant’s claim had merit, thus permitting additional discovery. For the reasons set forth below, the court finds that the defendant failed to establish probable cause that the judgment was procured through fraud or mutual mistake. No further discovery is warranted. The motion is denied.
The plaintiff objected to the court’s consideration of the pleading which purports to amend the motion to open which adds a claim of mutual mistake as well as an additional factual basis for the fraud claim. The pleading is titled " Amended Motion to Open Judgment, Memorandum of Law and Reply to Plaintiff’s Objection." It is a ten-page pleading which appears to have a variety of purposes. It was filed a week before the scheduled hearing and does not comply with our rules of practice regarding pleadings and their content. The plaintiff’s argument is well taken. However, in light of the findings contained herein, the court does not reject the pleading on these procedural bases.
" Until a motion to open has been granted, the earlier judgment is unaffected, which means that there is no active civil matter." Bruno v. Bruno, 146 Conn.App. 214, 230 (2013). Postjudgment, " discovery is not available to the moving party for the simple reason that discovery is permitted only when a cause of action is pending." Id., 230-31. " In short, there is no such thing as ‘post judgment discovery’ in a vacuum." Id. See also, Oneglia v. Oneglia, 14 Conn.App. 267, 269 (1988), Brody v. Brody, 153 Conn.App. 625, 632-34 (2014). Notwithstanding these well-entrenched principles of appellate jurisprudence, the defendant’s counsel issued numerous subpoenas to third parties seeking to compel their attendance and the production of records at the hearing. These subpoenas resulted in multiple motions to quash, briefing and hearings. Throughout the entirety of that process, the postjudgment posture of the case was not raised by any person nor appreciated by the court. When the undersigned recognized the significance of the procedural posture of the case, and determined that the subpoenas that had been issued were not authorized by our practice book or our statutes, see, Oneglia v. Oneglia, supra, 147 Conn.App. 269, the court vacated prior orders sustaining the defendant’s objections to the motions to quash and excused the witnesses present in the court who had responded to those subpoenas. Although counsel for the defendant first claimed no knowledge of Oneglia and its holding, he subsequently acknowledged that he was, in fact, familiar with the case. The court hopes that counsel’s conduct was an oversight rather than an intentional effort to thwart the restrictions on his authority to issue subpoenas as a commissioner of the superior court.
Applicable Law
The law governing situations such as the one presented here is well settled.
In considering a motion to open the judgment on the basis of fraud, ..., 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." (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).Cimino v. Cimino, 174 Conn.App. 1, 6, cert. denied, 327 Conn. 929 (2017). Furthermore,
[i]n 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 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 ... A marital judgment based upon a stipulation may be opened if the stipulation, and thus the judgment, was obtained by fraud ..." Id.Cimino v. Cimino, supra . 174 Conn.App. 9.
Discussion
The defendant claims that the plaintiff committed fraud because, he believes, he was divested of his ownership interest in VMC in February 2012, prior to the dissolution. To support this belief, he offers a regulatory filing, an MU1, of the same date. The document appears to delete reference to the defendant as a director, owner or controlling person of VMC. He argues that this document establishes probable cause that the financial disclosures upon which the dissolution agreement were premised and negotiated were knowingly false. The court is not persuaded.
First, the plaintiff’s testimony regarding the ownership of shares of VMC was credible and is credited. Her testimony established that the parties were joint owners of 1, 835 shares of VMC beginning in 1998. They remained joint owners of these shares until the time of the dissolution. At no time prior to the dissolution did the plaintiff take any steps to transfer or otherwise alter the ownership status of the VMC shares. After the divorce, pursuant to and consistent with the parties’ separation agreement, these shares were divided equally between them. The parties each executed the back of the stock certificate issued in 1998 and each thereafter received a new stock certificate representing 50% of those shares. The plaintiff’s testimony is supported by the 1998 stock certificate which is clearly issued to both parties and which was signed by both parties following the dissolution. The testimony is further supported by the two new stock certificates issued in 2014, one to the plaintiff and one to the defendant, each in the amount of 917.5 shares of stock in VMC. The testimony and the documents are also consistent with both parties’ financial affidavits filed at the time of the dissolution agreement, as well as the terms of the separation agreement.
The defendant’s argument that the MU1 establishes probable cause for the conclusion that the defendant was no longer a shareholder as of February 2012 is unsupported. Such a conclusion could be founded only upon conjecture or speculation. The document was offered without explanation as to its genesis, its purpose or the import of its content. The defendant’s reliance upon the statutory scheme by which such data is compiled and reported to the Banking Commissioner is not adequate to permit this court to find probable cause that, as a matter of fact, the defendant was stripped of his shares in or before February 2012. The speculative nature of the defendant’s argument is underscored by the credible and weightier evidence that, in fact, the defendant retained his interest in the shares not only through the time of dissolution but thereafter when the joint shares were divided and a new stock certificate was issued to him. As noted, this division occurred in September 2014.
The defendant asked this court to take judicial notice of a matter pending in the judicial district of Hartford before Judge Scholl to support the defendant’s belief that he is not a shareholder in VMC. That matter is captioned
However, even should the document support a finding of probable cause as to the fact for which it is offered, there is absolutely no evidence from which to infer the plaintiff was aware of any such action on the part of VMC. Her status as an officer does not impute to her knowledge as to the actions of other corporate officers and employees. Indeed, she testified credibly that she had no recollection of seeing the document in question; it is not her job to make the regulatory filings; and she is only generally aware that such filings are required. In sum, the defendant presented no evidence of any conduct on the part of the plaintiff which was fraudulent in nature.
Nor, as argued belatedly in the alternative, has there been any showing of mutual mistake. In the first instance, the document relied upon does not establish probable cause that any mistake was in fact made. In the second instance, the plaintiff categorically denies any such mistake, insofar as she believes that the shares were jointly held until after the divorce and the subsequent division and re-issuance of them, a belief borne out by the evidence.
Finally, the defendant offered no evidence that the defendant relied upon the purported misrepresentation " to his detriment, " that is, that the underlying proceeding would have resulted in a more favorable outcome to him. See, Cimino v. Cimino, supra, 174 Conn.App. at 9. The parties divided the VMC shares equally. Whether the plaintiff owned them solely, or they were jointly held, he received half of them. Although the court has found that the defendant failed to establish probable cause that the shares were not jointly owned, even had he done so, there is no probable cause that this resulted in any detriment to him whatsoever.
Lastly, the belatedly raised claim that the plaintiff overstated her liabilities is also rejected as without factual support in the evidence. The plaintiff’s testimony concerning a debt that was in her name though being paid by VMC was credible and is credited. It is clear that all parties were aware that the plaintiff was not making and did not anticipate making payments on the mortgage at issue. This was particularly clear on the plaintiff’s Financial Affidavit filed at the time of the dissolution. The defendant’s claim that this liability creates probable cause for a finding of fraud is wholly without merit.
For the foregoing reasons, the motion to open judgment is denied.
Village Mortgage Company v. James Veneziano and bears Dkt. No. HHD CV 166065950. The court agreed to do so with the caveat that the court can only take judicial notice of the file’s existence, content and legal effect. State v. Gaines, 257 Conn. 695, 705 n.7 (2001). Any factual findings contained therein are not something with respect to which judicial notice is appropriate. See, Tait’s Handbook of Connecticut Evidence, Tait and Prescott, Fifth Edition, Section 2.3.4(d) (2014). In the Hartford matter, the plaintiff, VMC, sought an order that the defendant turn over his 917.50 shares of VMC stock to the plaintiff due to the defendant’s failure to comply with certain regulatory requirements as had been previously stipulated to by both parties and made an order of the court. Although tangential to the issue being litigated it is worth noting that in that stipulation, dated March 26, 2016, the defendant stipulated to being a shareholder of VMC. By memorandum of decision dated June 6, 2017, the court (Scholl, J.) found in favor of the plaintiff and ordered the defendant’s shares in VMC turned over to VMC. The court’s decision is presently on appeal. The file, considered for permissible purposes, does not advance the defendant’s proof on the present motion. To the contrary, it undermines the claim of fraud or mutual mistake being made herein.