Mecca v. Mecca

203 Conn.App. 541

248 A.3d 772

Elizabeth MECCA

v.William F. MECCA, Jr.

AC 43293

Appellate Court of Connecticut.

Argued December 1, 2020

Officially released March 30, 2021

Sheila S. Charmoy, for the appellant (defendant).

Jonathan E. Von Kohorn, with whom, on the brief, was Tara L. Von Kohorn, for the appellee (plaintiff).

Moll, Alexander and DiPentima, Js.

ALEXANDER, J.

The defendant, William F. Mecca, Jr., appeals from the decision of the trial court denying his motion to open the judgment of dissolution. On appeal, he argues that the court abused its discretion by (1) applying an incorrect legal standard with respect to his motion to open and (2) failing to consider a pattern of fraudulent conduct on the part of the plaintiff, Elizabeth Mecca. We disagree and affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. The parties were married on June 18, 2000, in Portland. On June 4, 2015, the plaintiff's uncle, Bernard "Birdie" Marcus (Birdie Marcus), died. On December 21, 2015, the plaintiff forwarded an e-mail to the defendant, which he received but did not read. The e-mail contained details of a complaint filed in Canada by the plaintiff and other members of the Marcus family alleging that Birdie Marcus had been manipulated by his caretakers into executing a will that excluded his family members. This e-mail also contained a statement from the Canada Trust Company, dated November 5, 2015, that listed the gross value of the Estate of Birdie Marcus at C$5,809,294.15. Because the will of Birdie Marcus was contested and benefited a large number of third parties, the final settlement of the estate required extensive litigation that took place over a period of nearly four years.

In June, 2017, the plaintiff instituted the underlying dissolution action. On February 20, 2018, the marriage of the parties was dissolved by the court and the dissolution judgment incorporated the parties’ separation agreement. Under the terms of the separation agreement, the defendant expressly "waive[d] any right, title or interest in and any proceeds to be received by the [plaintiff] in the future as a result of [the pending] litigation in [Canada] involving the ... [Estate of] Birdie Marcus ...."¹

On December 14, 2018, the defendant filed a motion to open the judgment of dissolution, alleging that the judgment was obtained as a result of fraudulent misrepresentations made by the plaintiff.² Specifically, the defendant asserted that the plaintiff "made material misrepresentations on her [f]inancial [a]ffidavit inasmuch as she failed to disclose her receipt of an inheritance, that had already happened or was imminent, because she had entered into a settlement agreement as the result of a will contest ... [that] ha[d] been pending in the Superior Court of Quebec ... [in] the Estate of Birdie Marcus ...." (Internal quotation marks omitted.) The defendant further argued that the plaintiff "failed to list her interest in [the Estate of Birdie Marcus and the related] action during the entire pendency of the dissolution action ... [and] made material misrepresentation[s] at her deposition on January 23, 2018 ...."

The court, Rodriguez , J. , held a hearing on the defendant's motion to open on June 4 and 14, 2019. In denying the motion, the court found the following: "[T]he plaintiff disclosed a possible interest ... in [the Estate of Birdie Marcus] .... [T]he plaintiff did not conceal anything ... [and] disclosed what she knew of the existence of the claims in Canada.... [The defendant] chose not to read the documents and to not make a claim, waiving it in the separation agreement. Therefore ... there is no fraud in this case ...." This appeal followed.³

I

The defendant first claims that the court abused its discretion by applying an incorrect legal standard in denying the motion to open. He argues that the court improperly (1) assigned to him a duty of due diligence and (2) failed to consider the proper elements of fraud in a marital dissolution action. We disagree.

A

The defendant first argues that the court improperly assigned to him a duty of diligence. Specifically, he claims that, with regard to the Estate of Birdie Marcus, "[the plaintiff] was required to make an investigation of her assets using any readily available information, and clearly disclose the results of that investigation on her affidavit." The defendant argues that the court "incorrectly placed a duty of diligence on the ... [d]efendant" and that his "waiver was not an intentional relinquishment of a known right." The plaintiff counters that "[t]he defendant's argument ... ignores the fact that [the plaintiff's interest in the Estate of Birdie Marcus] was an intangible asset properly disclosed in advance of the judgment and separately negotiated as an express provision of the separation agreement." We agree with the plaintiff.

Our standard of review is well established: "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." (Internal quotation marks omitted.) Reville v. Reville , 312 Conn. 428, 440, 93 A.3d 1076 (2014).

The defendant claims that the court applied an incorrect legal standard by erroneously assigning him a duty of due diligence. In making this claim, however, the defendant mischaracterizes the applicable law, which requires "a continuing duty to disclose pertinent financial information until the judgment of dissolution is final." (Internal quotation marks omitted.) Lederle v. Spivey , 151 Conn. App. 813, 819, 96 A.3d 1259, cert. denied, 314 Conn. 932, 102 A.3d 84 (2014). In denying the plaintiff's motion, the court made the following finding: "[T]he plaintiff ... disclosed what she knew of the existence of the claims in Canada ... informing [the defendant] of the existence of the claims. With that knowledge, [the defendant] chose not to read the documents and to not make a claim, waiving it in the separation agreement." The court did not place a "duty of due diligence" on the defendant, as he attempts to characterize its determination. Rather, the court simply acknowledged that a party to a dissolution action cannot simply ignore documents that were appropriately delivered to him, only to later claim that the disclosed potential asset was fraudulently withheld from him. This is particularly true in the present case, where the defendant had ample time and opportunity to review the plaintiff's disclosures. The trial court heard testimony that the initial disclosure by the plaintiff of the Estate of Birdie Marcus occurred via e-mail on December 21, 2015, and that an additional, related disclosure was made on January 18, 2017. The court credited this evidence and found that the plaintiff had informed the defendant of the potential asset. On February 16, 2018, the defendant signed a separation agreement, wherein he waived any right to the potential asset from the estate. The parties agreed to incorporate the terms of their separation agreement, which included the defendant's waiver of any right to the potential asset from the estate, into the court's final judgment of dissolution rendered on February 20, 2018.

It is also notable that the potential asset at issue was subject to a degree of uncertainty, as to both its availability and value. The defendant claims that the plaintiff failed "to make an investigation of her assets using any readily available information, and [to] clearly disclose the results of that investigation," but in making this claim he fails to account for the circumstances surrounding the potential asset. The trial court clearly addressed the uncertainty of this asset: "The court is mindful ... of the lengthy process involved when claims against estates are made. No one really knows what if any assets will result at the end of the litigation. Therefore, the court finds that the plaintiff did not have any knowledge of what her benefits would be nor if she would receive any from the [Estate of Birdie Marcus] at the time of her dissolution." The record clearly supports the court's finding because the potential asset was timely disclosed by the plaintiff and was appropriately classified as an intangible asset. The plaintiff met her "continuing duty to disclose pertinent financial information"; (internal quotation marks omitted) Lederle v. Spivey , supra, 151 Conn. App. at 819, 96 A.3d 1259 ; and the defendant's waiver in the separation agreement and in the final judgment of dissolution was not the result of fraud. We conclude, therefore, that the court applied the proper legal standard and was within its discretion in denying the defendant's motion to open the judgment of dissolution.

B

The defendant next argues that the court abused its discretion by failing to consider the proper elements of fraud in a marital dissolution action. The defendant claims that the plaintiff made false factual representations at her deposition on January 23, 2018, and "committed fraud by failing to disclose the existence and value of the Birdie Marcus case on her financial affidavits ...." Additionally, the defendant argues that the plaintiff "deprived the ... [c]ourt of being able to find that the separation agreement was fair and equitable," and that he relied on the plaintiff's false statement and failure to disclose to his detriment. The defendant further claims that "[t]here was no laches or unreasonable delay ... after he discovered the fraud," and ...