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CAROLYN H. LONGBOTTOM v.
RICHARD H. LONGBOTTOM
(AC 42274)
Prescott, Bright and Harper, Js.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dissolved, appealed to this court from the judgment of the trial court
denying her motions to open and to modify the court’s previous judgment
modifying an educational support order. The parties’ separation agreement, which was incorporated into the dissolution judgment, included
a section pertaining to the division of costs for educational support for
their daughter. That section did not contain terms setting forth a specific
allocation of responsibility between the parties with regard to the educational expenses but provided that the court would retain jurisdiction
over the issue and that the judgment would remain modifiable. The
defendant filed a postjudgment motion to modify the educational support
order, seeking to establish each party’s responsibility regarding their
daughter’s college costs and expenses, which the court granted, ordering
that the plaintiff was responsible for 45 percent of the college costs and
expenses for the 2017-2018 school year. Thereafter, the plaintiff filed a
motion to open the judgment and a motion to modify the educational
support order, alleging fraudulent nondisclosure on the part of the defendant with regard to his income. The court denied the plaintiff’s motions,
concluding that the plaintiff had the defendant’s accurate financial information, and the plaintiff appealed to this court. Held:
1. The trial court did not fail to determine whether the plaintiff had met
her burden of proof to establish the existence of probable cause that
the defendant committed fraud by nondisclosure; the trial court’s memorandum of decision explicitly set forth the definition of fraud and the
legal standard for opening a judgment when fraud is alleged before it
ultimately denied the plaintiff’s motions and it was implicit in the court’s
rejection of the plaintiff’s claim that the court considered the facts as
applied to the appropriate legal framework and made a determination
on that basis.
2. The trial court did not abuse its discretion in denying the plaintiff’s motions
to open and to modify the judgment on the basis of fraud; in light of
the evidence before the court in ruling on the plaintiff’s motion to open,
it was not an abuse of discretion for the court to conclude that the
plaintiff failed to establish the existence of probable cause that the
defendant had fraudulently concealed certain financial information during the proceedings on his motion to modify the educational support
order, the stock option sale proceeds were reflected in the defendant’s
2016 W-2, and, although listed in a separate section of his financial
affidavit, were on the affidavit, not omitted or concealed, and the defendant testified that his financial affidavit was truthful and honest, testimony which the court could have credited, and, in concluding that the
plaintiff had failed to meet her burden of fraudulent nondisclosure, the
court had no basis on which to modify, on the basis of fraud, its judgment
on the educational support order.
3. This court declined to review the plaintiff’s claims attacking the court’s
understanding, interpretation and application of the defendant’s financial affidavits and tax documents; the plaintiff’s claims regarding
whether the trial court properly understood the defendant’s financial
information were not properly before this court because this question
was unrelated to the question of whether the defendant fraudulently
concealed information from the court and the plaintiff, which was the
sole basis for the plaintiff’s motions open and to modify.
Argued January 14—officially released April 21, 2020
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Hartford and tried to the court, Carbonneau, J.;
judgment dissolving the marriage and granting certain
other relief; thereafter, the court, Nastri, J., granted
the defendant’s postjudgment motion to modify educational support; subsequently, the court, Nastri, J.,
denied the plaintiff’s motions to open the judgment
modifying the educational support order and to modify
the educational support order, and the plaintiff
appealed this court. Affirmed.
Carolyn H. Mackenzie, self-represented, the appellant (plaintiff).
Greg C. Mogel, with whom, on the brief, was P. Jo
Anne Burgh, for the appellee (defendant).
Opinion
HARPER, J. The self-represented plaintiff, Carolyn
H. Longbottom, appeals from the judgment of the trial
court denying her motions to open and to modify the
court’s previous judgment modifying an existing educational support order on the basis of the alleged fraudulent nondisclosure of the defendant, Richard H. Longbottom. On appeal, the plaintiff claims that the court
erred by concluding, inter alia, that she had failed to
prove that there was sufficient probable cause of fraud
by nondisclosure to permit the court to open the judgment and allow for discovery, which would have established the merits of her motion for modification. We
disagree with the plaintiff and, accordingly, affirm the
judgment of the trial court.
The following facts and procedural history are relevant to our resolution of this appeal. The plaintiff and
the defendant were married in Johannesburg, South
Africa, in 1994, and two children were born of the marriage. In October, 2011, the plaintiff initiated dissolution
proceedings. Thereafter, the parties entered into a dissolution of marriage agreement (agreement), which was
incorporated into the judgment of dissolution rendered
on October 12, 2012. Section six of the agreement pertained to the division of costs for educational support
of their daughter. At the time the agreement was incorporated into the judgment, its terms did not include a
specific allocation of responsibility between the parties
with regard to these education expenses, but it provided
that the court would retain jurisdiction over the issue
and that the judgment would remain modifiable in
accordance with state statutory law regarding modification of support orders.1
The defendant filed a postjudgment motion to modify
the educational support on January 4, 2017, in order
to establish each party’s responsibility regarding their
daughter’s college costs and expenses. During a hearing
on the defendant’s motion, held on June 28, 2017, the
court instructed the parties to exchange tax returns
and financial documents in order to determine whether
either side had any issues pertaining to the information
contained in the other party’s documents. The plaintiff
notified the court that she had concerns about the
defendant’s documents and, specifically, brought to the
attention of the court her concern that the income listed
on the defendant’s financial affidavit did not account
for the value of certain stock option sale proceeds that
the defendant had received.2 Accordingly, the court
heard argument from the self-represented plaintiff and
the defendant’s counsel on that issue, and admitted the
tax returns of both parties and the defendant’s 2016 W-
2 into evidence.
On July 12, 2017, the court granted the defendant’s
motion to modify the educational support order. In its
decision, the court made findings regarding each party’s
net weekly income, assets, and liabilities. Specifically,
the court found that ‘‘[t]he plaintiff has a net weekly
income of $1307, including alimony. She has assets of
$1,217,276 and liabilities of $5200. . . . The defendant
has a net weekly income of $3466. He has assets of
$1,548,512.60 and liabilities of $6700.’’ (Footnote omitted.) Ultimately, the court concluded that ‘‘[t]he plaintiff
shall pay 45 percent and the defendant 55 percent of
the cost of [their daughter’s] 2017–2018 . . . tuition,
room, board, dues, registration and routine fees—
including but not limited to books and laboratory fees—
after those costs are offset by all scholarships, grants
and loans.’’
On November 13, 2017, the plaintiff, alleging fraudulent nondisclosure on the part of the defendant, filed
a motion to open the July 12, 2017 judgment modifying
the educational support order and a motion to modify
the educational support order. The plaintiff alleged in
her motions that the defendant had materially misrepresented his income on his financial affidavit submitted
in connection with his motion to modify, such that the
court should open the judgment on the basis of fraud
in order to permit further discovery and then modify
the educational support order. Specifically, she alleged
that the defendant had fraudulently misled the court
by including $100,429, the amount he describes as proceeds from the sale of stock options, under his assets
but not under his income.
At the hearing on the plaintiff’s motions, held on
September 7, 2018, the plaintiff presented an expert
witness who testified that income was omitted from
the defendant’s financial affidavit. The defendant testified in rebuttal and explained that the stock sale proceeds were accounted for under his assets in his affidavit and that he indeed had disclosed that amount to the
court prior to the court’s July 12, 2017 decision on his
motion for modification.
On October 22, 2018, the court rendered judgment
denying the plaintiff’s motions to open and to modify.
The court stated: ‘‘The defendant’s gross income and
the proceeds from the sale of his stock options were
disclosed in his financial affidavit, albeit in two different
places. They were disclosed in the same place on his
2016 Form 1040 and his 2016 W-2. Consequently, the
plaintiff had the defendant’s accurate financial information during the hearing.’’ This appeal followed. Additional facts will be set forth as necessary.
On appeal, the plaintiff raises nine issues that she
argues constitute error on behalf of the trial court in
rendering its judgment denying her motions to open
and to modify. Upon careful review, her claims can be
summarized and condensed into three: (1) the court
failed to determine whether the plaintiff had met her
burden of proof to establish the existence of probable
cause that the defendant committed fraud by nondisclosure; (2) to the extent that the court actually determined
that the plaintiff had failed to meet her burden of proof,
the court nonetheless abused its discretion in making
that determination and in denying the plaintiff’s motions
to open the judgment and to modify the educational
support order; and (3) the court failed to understand the
implications of its factual determinations and holding.3
In response, the defendant argues that the court did
determine that the plaintiff had failed to meet her burden of proof in establishing probable cause of fraudulent nondisclosure and that the court did not abuse its
discretion in denying the plaintiff’s motions to open
and to modify. We agree with the defendant and affirm
the judgment of the trial court.
I
The plaintiff claims first that the court failed to determine whether she had met her burden of proof to establish the existence of probable cause that the defendant
committed fraud by nondisclosure. We disagree with
the plaintiff.
‘‘The construction of a judgment is a question of law
for the court. . . . As a general rule, judgments are
to be construed in the same fashion as other written
instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment. . . . The interpretation of a judgment may
involve the circumstances surrounding the making of
the judgment. . . . Effect must be given to that which
is clearly implied as well as to that which is expressed.
. . . The judgment should admit of a consistent construction as a whole. . . . An implication is defined as
an inference of something not directly declared, but
arising from what is admitted or expressed. . . . It is
used where the intention in regard to the subject matter
is not manifested by explicit and direct words, but is
gathered by implication or necessary deduction from
the circumstances, the general language or the conduct
of the parties.’’ (Citations omitted; internal quotation
marks omitted.) Gorelick v. Montanaro, 94 Conn. App.
14, 30,
891 A.2d 41 (2006).
The court’s memorandum of decision set forth in
explicit terms the definition of fraud and the legal standards for establishing probable cause of fraud and for
opening judgments in the context of alleged fraud. After
a thorough overview of the applicable legal principles
that guided its decision, the court ultimately denied the
plaintiff’s motions to open and to modify. Implicit in
the court’s analysis, when construed as a whole; see
id.; is the court’s finding that the plaintiff, before the
court rendered its July 12, 2017 judgment granting the
defendant’s motion to modify the educational support
order, had received the financial information from the
defendant that she claims was fraudulently withheld
and that she, therefore, failed to establish probable
cause of fraudulent nondisclosure.4 Though the court
does not state this in explicit terms, it is implicit in its
rejection of the plaintiff’s claim that the court considered the facts as applied to the appropriate legal framework and made a determination on that basis. Accordingly, we conclude that the court did determine that
the plaintiff failed to establish probable cause of fraudulent nondisclosure.
II
Next, the plaintiff claims that, even if the court determined that she failed to establish probable cause of
fraudulent nondisclosure, it improperly denied her
motions to open and to modify the judgment on that
basis. We disagree with the plaintiff.
We first set forth the legal principles that guide our
review of a court’s denial of a motion to open a judgment
based on alleged fraud. ‘‘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 . . . .’’ (Footnote omitted; internal quotation marks omitted.) Terry
v. Terry, 102 Conn. App. 215, 222,
925 A.2d 375, cert.
denied,
284 Conn. 911,
931 A.2d 934 (2007). ‘‘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. . . .
‘‘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 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.) Cimino v. Cimino,
174 Conn. App. 1, 5–6,
164 A.3d 787, cert. denied,
327
Conn. 929,
171 A.3d 455 (2017); see also Sousa v. Sousa,
173 Conn. App. 755, 765,
164 A.3d 702, cert. denied,
327
Conn. 906,
170 A.3d 2 (2017).
‘‘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.’’
(Internal quotation marks omitted.) Spilke v. Spilke,
116 Conn. App. 590, 595,
976 A.2d 69, cert. denied,
294
Conn. 918,
984 A.2d 68 (2009).
‘‘Fraud by nondisclosure, which expands on the first
three of [the] four elements [of fraud], 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. . . . A lack of full and fair disclosure
of such facts must be accompanied by an intent or
expectation that the other party will make or will continue in a mistake, in order to induce that other party
to act to her detriment. . . . In a marital dissolution
case, the requirement of a duty to speak is imposed by
Practice Book § [25-30], requiring the exchange and
filing of financial affidavits . . . and by the nature of
the marital relationship.’’ (Internal quotation marks
omitted.) Reville v. Reville,
312 Conn. 428, 441,
93 A.3d
1076 (2014).
In the present case, the plaintiff presented the court
with evidence that the proceeds from the sale of the
defendant’s stock options should have been listed as a
part of his income in addition to his assets on his financial affidavit. The plaintiff proffered an expert witness,
William Murray. In the expert disclosure, it was
expected that he would testify ‘‘[t]hat it is likely that
the [defendant’s] financial affidavit submitted in connection with the July 17, 2017 hearing omitted certain
income from the husband’s employer compensation
plan, so as to be materially false and misleading.’’ On
direct examination, Murray indeed testified that his
understanding ‘‘is that income received from shares is
also includable income on a financial affidavit.’’ During
cross-examination, however, Murray acknowledged
that the stock amount in fact had been disclosed on
the defendant’s affidavit as an asset, and he further
conceded that the defendant’s 2016 W-2, which was
presented to the court during the initial hearing on
the defendant’s motion to modify, reflected an income
amount that accounted for the stock option sale proceeds that had not been included as income on his
affidavit.
In response, the defendant testified that the value of
his stock options, both vested and unvested, were listed
on his financial affidavit as assets and that his financial
affidavit was truthful and honest.5 In his closing argument, the defendant further emphasized the fact that
the court had been provided with the defendant’s 2016
W-2 and tax returns, all of which accounted for the
stock option sale proceeds, and argued that the plaintiff
could not establish probable cause of fraudulent nondisclosure because the information she claimed was misrepresented had been readily provided to the court at
the appropriate time.
In assessing whether, on the basis of this evidence,
the court abused its discretion in denying the plaintiff’s
motion to open, we are mindful of our standard of
review, which requires us to make every reasonable
presumption in favor of the court’s action. The court’s
memorandum of decision states: ‘‘The defendant’s gross
income and the proceeds from the sale of his stock
options were disclosed in his financial affidavit, albeit
in two different places. . . . Consequently, the plaintiff
had the defendant’s accurate financial information during the hearing.’’ The court acknowledged that, although
the stock sale income and proceeds were in different
places, they were indeed listed on the affidavit, and not
omitted or concealed. The court also had the defendant’s 2016 W-2 and tax returns, which showed the
stock options he received as income. The court was
aware of these facts prior to rendering judgment on the
defendant’s motion to modify, because they were raised
by the plaintiff and addressed by both parties during
the hearing on the defendant’s motion to modify. See
also footnote 4 of this opinion.
Additionally, ‘‘[i]n a case tried before a court, the
trial judge is the sole arbiter of the credibility of the
witnesses and the weight to be given specific testimony.
. . . As such, the trial court is free to accept or reject,
in whole or in part, the evidence presented by any
witness, having the opportunity to observe the witnesses and gauge their credibility.’’ (Citation omitted;
internal quotation marks omitted.) State v. Sandra O.,
51 Conn. App. 463, 468,
724 A.2d 1127 (1999). In the
present case, the court reasonably could have credited
the defendant’s testimony during the hearing on the
plaintiff’s motions that his financial affidavit was ‘‘truthful and honest to the best of [his] knowledge and belief.’’
Particularly, the court reasonably could have credited
the defendant’s candor with the court in pointing the
court to the exact location of the amount claimed by the
plaintiff to be materially misrepresented in the affidavit,
and in submitting his relevant W-2 form and tax returns
to the court and to the plaintiff. In light of the evidence
before the court in ruling on the plaintiff’s motion to
open the judgment on the basis of fraudulent nondisclosure, it was not an abuse of discretion for the court to
conclude that the plaintiff had failed to establish the
existence of probable cause that the defendant had
fraudulently concealed information during the proceedings on his motion for modification of the parties’ educational support order. In concluding that the plaintiff
had failed to meet her burden to establish probable
cause of fraudulent nondisclosure, the court also had
no basis on which to modify, on the basis of fraud, its
judgment on the educational support order. Accordingly, on the basis of the record and the facts before
us, we cannot conclude that the court abused its discretion in denying the plaintiff’s motions to open and to
modify the judgment.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Section 6.1 of the agreement provides in relevant part: ‘‘The Court shall
retain jurisdiction over the issue of the amount of each party’s financial
obligation for [their daughter’s] educational expenses, pursuant to section
46b-56c of the . . . General Statutes. . . .’’
Section 6.4 of the agreement provides: ‘‘The provisions of this section [6]
shall be subject to modification in the same manner as is provided by the
Statutes for any support order and the Court shall retain jurisdiction for
such purpose. In determining whether to modify this order, the Court shall
consider all relevant circumstances at that time, as such are defined in
section 46b-56c of the Statutes.’’
2
The defendant had been earning stock options from Caterpillar, his
employer, since he began working for Caterpillar approximately eighteen
years prior to the June 28, 2017 hearing on his motion to modify.
3
This third category of claims is in reality an attack on the court’s understanding, interpretation and application of the defendant’s financial affidavits
and tax documents provided to the court in connection with its July 12,
2017 educational support order. Specifically, the plaintiff asks this court to
review in relevant part: ‘‘Whether the trial court was correct in holding that
‘[a]t the evidentiary hearing [regarding the educational support order] the
defendant provided the plaintiff with a financial affidavit showing 2016 gross
income of $244,148.’ ’’ ‘‘Whether the trial court understood the implication
in holding that: ‘[o]n the 2016 Form 1040, the defendant’s gross wages and
the proceeds from the sale of his stock options were combined on line
[22].’ ’’ And, ‘‘Whether the trial court understood the argument that, ‘[t]he
defendant’s counsel pointed out in his closing argument at the evidentiary
hearing [regarding the educational support order] that the stock options
were included as assets on the financial affidavit and as income on his
tax returns.’ ’’
Whether the court properly understood the defendant’s financial information is wholly unrelated to the question of whether the defendant fraudulently
concealed information from the court and the plaintiff, which was the sole
basis for the plaintiff’s motions to open and to modify. To the extent that the
plaintiff believes that the information contained in the defendant’s financial
documents does not support the court’s July 12, 2017 educational support
order, her remedy was to appeal from that judgment, something she did
not do. Her motions to open and to modify, based solely on alleged fraudulent
nondisclosures, which we conclude properly were denied by the court,
cannot be used to resurrect arguments that she wished she had made before
the court issued its educational support order or in an appeal from that
judgment. Thus, we decline to review these claims as they are not properly
before us.
4
As a matter of fact, the plaintiff, herself, argues in her reply brief: ‘‘In
the hearing on June 28, 2017, the plaintiff alerted the trial court to the fact
that the defendant did not disclose income from all sources, and specifically,
that he had not disclosed income from stock options on his financial affidavit.
This was evident in plain sight by looking at the defendant’s financial affidavit. This was also evident by comparing the earnings shown on the defendant’s W-2 and his tax returns, to the income disclosed on his financial
affidavit.’’ This statement demonstrates an acknowledgment that this information was available to the plaintiff at the time of the hearing on the
defendant’s motion for modification and that the trial court was aware of
the information before it rendered judgment granting the defendant’s motion.
5
The following exchange occurred between the defendant’s counsel and
the defendant:
‘‘Q. And sir, on your financial affidavit under stocks, bonds, mutual funds—
‘‘A. Uh-huh.
‘‘Q. —do you show that you have Caterpillar stock of about $90,000?
‘‘A. I do.
‘‘Q. And do you have vested stock of another $4,000?
‘‘A. Yes.
‘‘Q. And you have unvested stock that you list at $147,000. Is that correct?
‘‘A. Unvested—
‘‘Q. Right there, the line under—
‘‘A. Yes, I do.
‘‘Q. Okay. And sir, do you also show an E*TRADE various account?
‘‘A. Correct.
‘‘Q. How much was in there?
‘‘A. 268,000.
‘‘Q. Okay. Can you tell me when your stocks vest with Caterpillar, where
do they go?
‘‘A. They go to my E*TRADE account.
‘‘Q. Okay.
‘‘A. And they go into capital shares.
‘‘Q. Okay, and those stocks when they vest, they . . . just automatically
vest. Right?
‘‘A. Automatically vest, as I said, into [Caterpillar] stock.
‘‘Q. Okay, on a certain day?
‘‘A. Correct.
‘‘Q. Okay. So, you do nothing to make that occur?
‘‘A. Nothing at all.
‘‘Q. And it just transfers into your E*TRADE account. Is that correct?
‘‘A. Correct.’’
