Opinion
No. KNO FA 05-4103391S
September 15, 2010
MEMORANDUM OF DECISION REGARDING DEFENDANT'S MOTION TO OPEN JUDGMENT (144) AND PLAINTIFF'S MOTION FOR CONTEMPT (141)
PROCEDURAL BACKGROUND
A review of the record reveals that the parties were divorced pursuant to an agreement on June 20, 2007. The salient provisions of the separation agreement are that the defendant husband would list for sale real estate located at 229 Summit Street, Norwich, Connecticut (hereinafter "real estate") and that the net proceeds would be divided with two thirds to the plaintiff wife and one third to the defendant husband. In addition, the husband was to pay to the wife the sum of $33,000 as a property settlement at that time. Thereafter, the judgment was modified by an agreement dated April 7, 2008 wherein the husband agreed to pay to the wife the sum of $73,000 on or before June 7, 2008 in satisfaction of his obligations to the wife for the property settlement under the terms of the dissolution decree and that upon said payment, the wife would waive any interest in said real estate. On April 29, 2009, the defendant was held in contempt for his failure to comply with that previous court order. Now comes the defendant moving to open the judgment based on "mutual mistake."
The parties appeared, together with counsel on September 13, 2010 and the court heard testimony from both parties. The defendant argued that at the time of the dissolution, he believed that the real estate was a conforming building lot worth $100,000. He testified that in 2008, he had a buyer for the property at $110,000 but that a title defect was discovered which caused the sale to be canceled or delayed. He testified that he was caused to engage counsel to cure the title defect at a cost of $15,000 plus carrying costs and was then able to sell the property on July 27, 2010 for $90,000 netting to him the sum of $67,483.33. He argues that the judgment should be opened due to a mutual mistake of the parties regarding its value.
The plaintiff argued that the defendant is in contempt for his failing to comply with the previous court orders of payment and that the judgment should not be opened as there was no mutual mistake justifying such action.
The parties stipulated that if the judgment is not opened, the defendant has paid all but $15,000 to the plaintiff.
LEGAL DISCUSSION
"It is a well-established general rule that . . . a judgment rendered by the court . . . can subsequently be opened [after the four month limitation set forth in General Statutes § 52-212a and Practice Book § 17-43] . . . if it is shown that . . . the judgment, was obtained by fraud . . . or because of mutual mistake." (Internal quotation marks omitted.) Terry v. Terry, 102 Conn.App. 215, 222 (2007); Nelson v. Charlesworth, 82 Conn.App. 710, 713, 846 A.2d 923 (2004).
"A judgment rendered on a stipulation of the parties is in the nature of a contract and may be opened by the court if the stipulation was entered into by mutual mistake." See Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980). "Whether there has been [a mutual] mistake is a question of fact." Inland Wetlands Watercourses Agency v. Landmark Investment Group, Inc., 218 Conn. 703, 708, 590 A.2d 968 (1991).
"Courts have intrinsic powers, independent of statutory provisions authorizing the opening of judgments, to vacate any judgment obtained by fraud, duress or mutual mistake." In re Baby Girl B., 224 Conn. 263, 283, 618 A.2d 1 (1992). The Appellate Court has defined a mutual mistake as "one that is common to both parties and effects a result that neither intended." (Internal quotation marks omitted.) Regis v. Connecticut Real Estate Investors Balanced Fund, Inc., 28 Conn.App. 760, 765, 613 A.2d 321, cert. denied, 224 Conn. 907, 615 A.2d 1048 (1992); see also Dainty Rubbish Service, Inc. v. Beacon Hill Assn., Inc., 32 Conn.App. 530, 537, 630 A.2d 115 (1993) ("mutual mistake exists where both parties are mutually mistaken about the same material fact"). Terry, Id. at 229.
"Our Supreme Court has also recognized, however, that the government has an interest in encouraging private agreements that have been incorporated into decrees for dissolution, separation or annulment." See Billington v. Billington, 220 Conn. 212, 221, 595 A.2d 1377 (1991) ("strong policy that the `private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine'"). "Negotiated settlement of these affairs conserves judicial resources and encourages private resolution of family issues. Additionally, the government has an interest in preserving and enforcing orders that were entered by the courts in dissolution proceedings after a determination that the judgment is fair and equitable." Dougan v. Dougan, 114 Conn.App. 379, 385 (2009).
A review of the previously filed financial affidavits regarding the subject real estate is illuminating. In financial affidavits dated September 14, 2006 and October 11, 2006, the defendant valued the real estate at $60,000. In a financial affidavit dated June 20, 2007, the date of dissolution, the defendant valued the real estate at $100,000. In a financial affidavit dated August 31, 2009 the defendant valued the real estate at $70,000 with an asterisk and the statement "with clear title." Thus, it appears clear from his own financial affidavits that he valued the property at $60,000 prior to the date of dissolution. Likewise, the plaintiff filed financial affidavits on April 10, 2006, September 14, 2006 and October 2, 2006 all valuing the real estate at $60,000. On the date of dissolution, she valued her two thirds interest in the real estate at $33,000, suggesting that she valued the property on the date of dissolution as $50,000 in its entirety ($50,000 times two thirds equals $33,000.) Thus, contrary to the defendant's argument of mutual mistake at the time of judgment, it appears that the plaintiff wife valued the real estate at only $50,000 at that time.
It is also telling that in the post-judgment modification dated April 7, 2008 the parties agreed that the plaintiff's two thirds interest in the real estate plus her $33,000 property settlement would be substituted or liquidated for a lump sum payment of $73,000. This suggests that the parties valued her two thirds interest in the real estate at $40,000 and consequently, that the total value of the real estate was then $60,000 ($60,000 times two thirds equals $40,000).
CONCLUSION CT Page 18111
The court finds that there was no mutual mistake. The plaintiff wife valued the real estate consistently at $60,000. The defendant husband valued the real estate at $60,000 until the date of judgment when he valued it at $100,000. Ultimately, he sold the real estate for $90,000 but incurred $15,000 in costs to clear its title. Had the husband been able to sell the real estate for $200,000, the wife would not be able to open the judgment based on mutual mistake and claim the benefit of the husband's good fortune. The judgment properly reflects the agreement of the parties. Moreover, this is the deal that the parties crafted. The fact that the value ultimately realized was less than one of the parties anticipated is a common occurrence. Just as stock portfolios, retirement plans or other non-liquid assets change in value, this asset also yielded a somewhat different amount than that which the husband anticipated.For the foregoing reasons, the motion to open is denied, the motion for contempt is denied but notwithstanding, the court orders that the husband pay to the wife the sum of $15,000 within 90 days.