Opinion
FSTFA114021238S
03-12-2018
Karen H. WILLIAMS v. Willis W. WILLIAMS, III
UNPUBLISHED OPINION
OPINION
HELLER, J.
The plaintiff Karen H. Williams, who is now deceased, and the defendant Willis W. Williams, III were divorced on February 27, 2013. The judgment of dissolution (Novack, J.T.R.) incorporated by reference a separation agreement entered into that day between the plaintiff and the defendant (the February 2013 separation agreement) (# 145.00).
The plaintiff died on April 8, 2016 following a nine-year battle with cancer. Her brother Steven E. Harris (the executor) was appointed the executor of the plaintiff’s estate pursuant to the terms of her last will and testament and named the guardian of the minor children. The executor was substituted as the plaintiff in this action on October 11, 2016 (Tindill, J.). (# 149.02). For purposes of this memorandum of decision, " the plaintiff" shall mean the original plaintiff Karen H. Williams, " the executor" shall mean Mr. Harris, the executor of Ms. Williams’s estate and the substituted plaintiff, and " the parties" shall mean the plaintiff and the defendant.
On August 2, 2016, the executor of the plaintiff’s estate moved by order to show cause for an order to compel the defendant to comply with the February 2013 separation agreement and apply funds from a 529 account established for the benefit of the parties’ oldest child, Emily, toward her undergraduate educational expenses (# 149.00; # 149.01). On August 16, 2016, the executor filed an amended motion to compel, postjudgment, on August 16, 2016 (# 151.00). The defendant filed an objection to the motion to compel on November 16, 2016 (# 152.00).
The court (Heller, J.) granted the executor’s amended motion to compel, postjudgment, and overruled the defendant’s objection thereto on March 21, 2017 (# 158.00). The court ordered the defendant to apply the funds in Emily’s 529 account to her undergraduate educational expenses. The court also enjoined the defendant from using the funds in the 529 accounts established for the benefit of the parties’ minor children for any purpose other than the children’s educational expenses.
On July 21, 2017, the defendant filed a motion to vacate the court’s ruling on the executor’s amended motion to compel, postjudgment (# 165.00). The defendant moved to amend the motion to vacate, postjudgment, and filed an amended motion to vacate the court’s ruling, together with a supporting affidavit, on August 28, 2017 (# 168.00; # 169.00; # 170.00; # 171.00; # 172.00). On October 24, 2017, the executor filed an objection to the defendant’s amended motion to vacate, postjudgment (# 173.00).
Counsel for the parties were before the court on November 20, 2017. The court heard argument from counsel, reviewed the parties’ memoranda and the defendant’s affidavit, and reserved decision at that time.
I
" Courts have an inherent power to open, correct and modify judgments ... A civil judgment of the Superior Court may be opened if a motion to open or set aside is filed within four months of the issuance of judgment." (Internal quotation marks omitted.) Martin v. Martin, 99 Conn.App. 145, 155, 913 A.2d 451 (2007). " A motion to open a judgment is governed by General Statutes § 52-212a and Practice Book § 17-4. Section 52-212a provides in relevant part: ‘Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed ...’ Practice Book § 17-4 states essentially the same rule." (Citations omitted; internal quotation marks omitted.) Fitzsimons v. Fitzsimons, 116 Conn.App. 449, 454-55, 975 A.2d 729 (2009).
" The provisions of § 52-212a do not operate to strip the court of its jurisdiction over its judgments, but merely operate to limit the time period in which a court may exercise its substantive authority to adjudicate the merits of a case." (Citation omitted.) Bridgeport v. Triple 9 of Broad Street, Inc., 87 Conn.App. 735, 744, 867 A.2d 851 (2005). The purpose of this limitation stems " from the common-law rule concerning jurisdiction over the parties. In the interest of the public as well as that of the parties there [must] be fixed a time after the expiration of which the controversy is to be regarded as settled and the parties freed of obligations to act further by virtue of having been summoned into or having appeared in the case ... Without such a rule, no judgment could be relied on. Such uncertainty and instability in legal relations which have apparently been finally adjudicated does not commend itself as orderly judicial procedure." (Citations omitted; internal quotation marks omitted.) R.S. Silver Enterprises, Inc. v. Pascarella, Superior Court, judicial district of Stamford/Norwalk, Docket No. FST-CV-06-5002499-S (Sept. 24, 2015, Lee, J.).
" [N]either § 52-212a nor Practice Book § 17-4 specify the standard for opening a judgment within four months of its rendering. Thus, the basis on which [the court] can permissibly open a judgment is limited by legal interpretation of the relevant statutes. Our courts, recognizing the important consideration of finality of judgments, have limited the circumstances in which a court may open a judgment within four months of its rendering to where there is a good and compelling reason for its modification or vacation." (Internal quotation marks omitted.) Callahan v. Callahan, 157 Conn.App. 78, 88, 116 A.3d 317, cert. denied, 317 Conn. 913, 914, 116 A.3d 812, 813 (2015).
General Statutes § 52-212a and Practice Book § 17-4 vest discretion in the trial court to determine whether a good and compelling reason exists to modify or vacate a judgment. As the motion to open is an equitable remedy vested in the discretion of the trial court, circumstances that constitute a good and compelling reason vary depending on the grounds for the motion. For example, our courts have found a good and compelling reason to grant a motion to open when newly discovered evidence proffered by the moving party would have been likely to affect the underlying verdict; see Tri-Coastal Lanthanides, Inc. v. Chang, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-95-0144760-S (May 4, 2000, Hickey, J.); or when a jury award directly contravened a statutory mandate limiting the award of damages. See Dimmock v. Allstate Insurance Co., 84 Conn.App. 236, 853 A.2d 543, cert. denied, 271 Conn. 923, 859 A.2d 577 (2004).
The defendant seeks to open the court’s March 21, 2017 decision on the grounds of newly-discovered evidence, which the defendant describes as falling into three categories: facts that were known to the defendant and his counsel prior to the December 5, 2016 hearing on the executor’s motion to compel, postjudgment, but were not considered relevant at that time; facts that became known after the December 5, 2016 hearing but were not compelling enough to warrant filing a motion to open; and facts that became known after the court issued its memorandum of decision on March 21, 2017. In response, the executor contends that the defendant has failed to offer any newly-discovered evidence that would warrant opening the court’s March 21, 2017 decision that the defendant is contractually obligated under the February 2013 separation agreement to use the funds in the children’s 529 accounts for their undergraduate educational expenses.
II
The court considers a motion to open on the grounds of newly-discovered evidence under the criteria set forth by our Supreme Court in Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987), for evaluating a petition for a new trial based upon newly-discovered evidence. " Under the Asherman standard, a court is justified in granting a petition for a new trial when the petitioner demonstrates that the evidence offered in support thereof: (1) is newly discovered such that it could not have been discovered previously despite the exercise of due diligence; (2) would be material to the issues on a new trial; (3) is not cumulative; and (4) is likely to produce a different result in the event of a new trial." (Citation omitted.) Juma v. Aomo, Superior Court, judicial district of Hartford, Docket No. HHD-FA-09-4046839-S (Jan. 24, 2012; Olear, J.). In addition to considering these specific criteria; " a court’s decision on the petition should be guided by the more general principle that a new trial will be warranted on the basis of newly discovered evidence only where an injustice was done and whether it is probable that on a new trial a different result would be reached." (Citation omitted; internal quotation marks omitted.) Shabazz v. State, 259 Conn. 811, 821, 792 A.2d 797 (2002). " This strict standard is meant to effectuate the underlying equitable principle that once a judgment is rendered it is to be considered final, and should not be disturbed by post trial motions except for a compelling reason." (Internal quotation marks omitted.) Asherman, supra, 202 Conn. at 434.
The defendant claims that information demonstrating a plan by the late Ms. Williams and the parties’ children to try to terminate his parental rights is newly-discovered evidence upon which the court’s March 21, 2017 decision should be opened. The plan, which the defendant contends was a breach of the February 2013 separation agreement, allegedly included false accusations of sexual abuse by one of the children against the defendant so that they would not have to move with him to Florida. The defendant further argues that the executor insisted that the December 5, 2016 hearing take place while charges were pending against him so that he would have to assert his Fifth Amendment privilege and decline to testify. The defendant also maintains that he should not be obligated to use the funds in the 529 accounts for the children’s education because they want nothing to do with him. And finally, as counsel for the defendant represented to the court during a September 11, 2017 hearing on the executor’s motion for attorneys fees, the court’s March 21, 2017 decision should be vacated because defendant had already spent the funds in the 529 accounts before the December 5, 2016 hearing.
None of the information now offered by the defendant is " newly discovered" under the Asherman standard, which is evidence that could not have been discovered previously despite the exercise of due diligence. This information was either already known to the defendant and his attorney or could have readily been discovered in advance of the December 5, 2016 hearing. The defendant’s attorney could have taken the depositions of Emily and one of Ms. Williams’s friends and served a subpoena to obtain the text messages of the child who alleged that she was the victim of sexual abuse before the December 5, 2016 hearing as he did before the defendant’s criminal trial was scheduled to begin. This " evidence," such as it is, could have been discovered before the December 5, 2016 hearing began. It does not warrant opening the court’s March 21, 2017 decision under General Statutes § 52-212a and Practice Book § 17-4.
III
For the reasons set forth above, the defendant’s amended motion to vacate postjudgment order (# 172.00) is hereby DENIED, and the executor’s objection thereto (# 173.00) is SUSTAINED.