Cimino v. Cimino

174 Conn.App. 1

164 A.3d 787

Gina CIMINO

v.Joseph CIMINO

AC 38705

Appellate Court of Connecticut.

Argued January 6, 2017

Officially released June 20, 2017

Gina Cimino, self-represented, the appellant (plaintiff).

Christopher T. Goulden, Bridgeport, with whom, on the brief, were Janis M. Laliberte and Margaret Sullivan, Milford, for the appellee (defendant).

DiPentima, C.J., and Prescott and Beach, Js.

DiPENTIMA, C.J.

The plaintiff, Gina Cimino, appeals from the judgment of the trial court denying her motion to open and vacate the judgment dissolving her marriage to the defendant, Joseph Cimino. On appeal, she argues that (1) the dissolution court committed plain error in its valuation of the defendant's pension and (2) the trial court abused its discretion in denying her motion to open the judgment. We decline to address the claim that the dissolution court committed plain error and affirm the judgment of the trial court.

In a previous decision of this court, we set forth the following facts. "In a memorandum of decision dated July 25, 2013, the [dissolution] court found [that] ... [t]he parties' twenty-nine year marriage had broken down irretrievably and neither party was more at fault than the other for the breakdown. The plaintiff was fifty-four years old, in reasonably good health, and a college graduate with a Master's degree in business administration. The parties stipulated the plaintiff's earning capacity to be $37,000 per year. Although she had not worked outside of the home since 1990, the plaintiff had a business making wreaths and ornaments.

"The defendant has been employed by the Internal Revenue Service for thirty years and, at the time of trial, earned $119,548 per year. At the time of the memorandum of decision, the defendant had a thrift savings plan with a balance of $124,377.16 and a [pension], in lieu of social security, in the amount of $147,000....

"The court ... ordered the defendant to pay alimony in the amount of $600 per week for a period of ten years to the plaintiff. The plaintiff was awarded the thrift savings plan valued at approximately $124,000 and an individual retirement account valued at $11,216. The defendant was awarded the [pension] fund." Cimino v. Cimino , 155 Conn.App. 298, 299–300, 109 A.3d 546, cert. denied, 316 Conn. 912, 111 A.3d 886 (2015).

On August 3, 2015, the plaintiff filed a motion to open and vacate the July 25, 2013 dissolution judgment on the bases of fraud, intentional misrepresentation and/or mutual mistake.¹ She argued, inter alia, that the defendant had provided only the value of his contributions to the pension, approximately $147,000, rather than its actual value, which was substantially higher,² and that the defendant had failed to disclose approximately $50,000 in gifts from his family. The plaintiff sought to conduct postjudgment discovery pursuant to our decision in Oneglia v. Oneglia , 14 Conn.App. 267, 540 A.2d 713 (1988), and sought an order vacating the judgment on the basis of either fraud or mutual mistake, and any other equitable relief.³ The defendant filed an opposition to the motion to open on September 16, 2015.

The trial court held a hearing on November 20, 2015. Approximately three weeks later, the court issued a memorandum of decision denying the plaintiff's motion to open. This appeal followed.⁴ Additional facts will be set forth as necessary.

Before addressing the specific claims of the plaintiff, we set forth our standard of review and the relevant legal principles. "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.) 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).

I

The plaintiff first claims that the dissolution court committed plain error in its valuation of the defendant's pension. Specifically, she argues that the dissolution court valued the pension by using the defendant's contributions of $147,000, and that it should have used a different method to determine its actual value, which, she claims, exceeds $1 million. We decline to consider this claim because it is an untimely collateral attack on the judgment of the dissolution court and, therefore, outside the purview of this appeal taken from the denial of the motion to open the judgment.

The plaintiff failed to challenge the valuation of the pension in her prior appeal. See Cimino v. Cimino , supra, 155 Conn.App. at 299, 109 A.3d 546. A challenge to the propriety of findings and determinations of the dissolution court should have been made within twenty days of the dissolution judgment, and not nearly two years later via a motion to open. See, e.g., Berzins v. Berzins , 105 Conn.App. 648, 649 n.1, 938 A.2d 1281, cert. denied, 289 Conn. 932, 958 A.2d 156 (2008). The present appeal is thus limited to whether the trial court acted unreasonably or in a clear abuse of its discretion in denying the plaintiff's motion to open the judgment on the basis of fraud. Gaary v. Gillis , supra, 162 Conn.App. at 255–56, 131 A.3d 765 ; see also Chapman Lumber, Inc. v. Tager , 288 Conn. 69, 94–95, 952 A.2d 1 (2008) ; Farren v. Farren , 142 Conn.App. 145, 152, 64 A.3d 352, cert. denied, 309 Conn. 903, 68 A.3d 658 (2013). Simply stated, the plaintiff's claim of plain error by the dissolution court is an untimely and impermissible collateral attack of that judgment. See CUDA & Associates, LLC v. Smith , 144 Conn.App. 763, 766, 73 A.3d 848 (2013). The plaintiff's claim regarding the valuation of the pension by the dissolution court is not properly before us in this appeal and, therefore, we are unable to consider the propriety of the court's valuation.

II

The plaintiff next claims that the trial court abused its discretion in denying her motion to open the judgment on the basis of fraud. Specifically, she argues that the defendant misrepresented the value of his pension and failed to include monetary gifts from his family in his financial affidavits. We conclude that the court did not abuse its discretion in denying the plaintiff's motion.

A

We first consider the plaintiff's argument that the defendant misrepresented the value of his pension in his financial affidavit. Specifically, she contends that he failed to disclose the actual value of his pension, or to provide her with a "pension booklet" that contained the information necessary to calculate its actual value. With respect to this issue of the pension, the court found that "[a]t the time of the dissolution trial, the defendant disclosed on his financial affidavit the details [that] he knew [regarding] his pension." The court further noted that the plaintiff had obtained a copy of the pension benefits statement dated January 2, 2011. This statement, which was admitted into evidence at both the dissolution trial and the hearing on the motion to open, listed the defendant's expected monthly annuity if he retired at age fifty-five, sixty or sixty-two.

The statement also provided the estimated monthly annuity for the defendant's thrift savings plan.

The court further found that the defendant credibly had testified at both the dissolution trial and the hearing on the motion to open that "he had no knowledge of the value of the pension. He relied instead on [the statement] for the anticipated monthly payout under the [pension].... The defendant also credibly testified at the hearing that he complied with all discovery requests. Neither of the plaintiff's two trial attorneys made any request for the pension booklet, nor did either request an opportunity to obtain the value of the pension prior to the completion of the dissolution trial. This court infers that said nonaction by [the] plaintiff's attorneys was a tactical decision. Further, there is no credible evidence that the plaintiff relied to her detriment on any alleged failure to disclose. The defendant met his obligation of disclosing what he understood about his pension. There was no fraud, intentional misrepresentation or mutual mistake regarding the value of the pension or the pension booklet." (Citation omitted.)

The plaintiff claims that the court improperly denied her motion to open with respect to her claim that the defendant committed fraud and/or intentionally misrepresented the value of his pension. Specifically, she argues that the defendant failed to provide documents regarding the "salient details" or the "total worth" of the pension, that she was unable to obtain a copy of the pension booklet on her own, and that information regarding the pension was readily available and accessible by the defendant. The plaintiff also claims that the defendant's failure to provide...