2005 Ct. Sup. 13347
No. FA 04-0735794SConnecticut Superior Court Judicial District of Hartford at Hartford
October 11, 2005
MEMORANDUM OF DECISION ON MOTION TO OPEN JUDGMENT
CONSTANCE L. EPSTEIN, JUDGE.
BACKGROUND
The parties in the instant matter were married on December 31, 1998 and their marriage was dissolved on October 12, 2004. Incorporated into the judgment of dissolution is a Separation Agreement and Property Settlement, the terms of which are typewritten, with numerous penned-in, and initialed, handwritten deletions and additions, including a handwritten appended schedule. Testimony elicited at the hearing addressing the instant motion to open judgment revealed that the negotiation of the terms of the dissolution was arduous and emotional, with the final resolution coming only within the last half-hour of the court’s business at the end of the day on October 12, 2004. Indeed, although there was not much in the way of financially significant assets, and there were no children born of this 5-year marriage, the file reflects many motions filed in the course of the pending dissolution and counsel for the parties described the divorce as “very contentious.”
On November 29, 2004, Ms. Monighetti filed a Motion to Open Judgment, asserting as a basis therefore that Mr. Boyle committed fraud in making representations at the time of the divorce that the condition of the marital home was good and that all of the taxes on the property were current.
DISCUSSION
In the hearing on the motion to open, Attorney Tomasiewicz, who represented Ms. Monighetti at the time of the divorce, testified that, in light of the facts that (1) she had not been in the marital home since February 2004, (2) Mr. Boyle had been living there, and (3) that she had not had an opportunity to do a “walk through,” Ms. Monighetti was concerned about the condition of the residence. Consequently, Attorney Tomasiewicz recalled that he made inquiry to Attorney Basil, Mr. Boyle’s counsel, as to whether the condition of the home was “good” and, after CT Page 13348 conversation with Mr. Boyle, Attorney Basil returned and responded in the affirmative. Attorney Basil did not have any recollection of having made that representation, and instead stated that he would not have made such a representation because he had not seen the house. In addition, because of the contentiousness of the parties, and the many sessions of settlement discussions in which they had engaged, specific representations as to condition of the home and status of the taxes would have been included in the final agreement, according to Attorney Basil.
The defendant vacated the premises on the last day of October or the first day of November, and plaintiff began to move some of her belongings into the place within a couple of days of that. She was appalled at the condition in which she found the house and called in Richard Rick, a home inspector, who looked at the property on November 5, 2004. This inspector found numerous deficits including peeling paint, a great deal of clutter and disarray, stained carpets and floors, dust and dirt, and a foul odor throughout the house, apparently emanating from a freezer in the basement, which had been unplugged and in which there was decaying food. Mr. Rick described his inspection as “cosmetic.” He did not do an inspection to ascertain whether the dwelling was “structurally sound.” Pictures taken at the time reveal the necessity of a significant cleaning of the premises.
The evidence also revealed that several individuals could have been at the premises in the few days between Mr. Boyle’s vacating the premises, including Mrs. Monighetti’s son, with whom Mr. Boyle did not have a good relationship. In addition, Mr. William Walsh, who lived at the property from March through October of 2004, confirmed Mr. Boyle’s testimony as to the weekly work of a cleaning lady at the premises, the lack of any smell from the freezer or elsewhere, and that the premises were in good condition.
It has been suggested that, in order to deny the plaintiff’s motion to open the judgment, the court would have to completely discredit the testimony of Attorney Tomasiewicz. However, that is not the case. The testimony of that witness was that he asked defendant’s counsel whether the taxes and insurance were up to date and whether the house was in good condition. Defendant’s counsel then went to speak with his client and returned with an answer in the affirmative. That exchange may indeed have taken place and the court does not discredit the testimony provided. However, the parties stipulated at the instant hearing that the taxes were indeed paid up to date. The problem on that issue appears to have been a deficit at the mortgage lending institution which had advanced the tax dollars. Furthermore, on that issue, it is not at all clear that the increased levy from the financial institution was as a result of a CT Page 13349 deficit or the extent to which any escrow was attributable to a deficit in paying the taxes. As to the condition of the house, clearly it could have been in a more pristine condition, however, there was no evidence that it was structurally unsound. In addition, there was evidence that the carpet damage was caused after the dissolution date and that most of the things that were left were believed, by Mr. Boyle, to be the property of Ms. Monighetti and which he believed she wanted to retain.
As to the tax issue, even at the hearing on the motion to open, it became clear to the court that Mr. Boyle was under the impression that Ms. Monighetti was contending that the taxes were delinquent with the town. That was not the case and he had brought evidence to establish that. Instead, the issue was Ms. Monighetti’s contention that she incurred an increased amount in her mortgage payments as the result of the deficit to Homecomings Financial for a tax bill which it had paid, but which had not been repaid to the institution. While Mr. Boyle was sent a letter in August of 2004 for nonpayment of $2,284.78, the detailed transaction history from Homecomings Financial reveals that Homecomings was paid that amount in mid-July 2004. While another amount on the taxes may still have been owed to Homecomings Financial, that was not clear to Mr. Boyle. Furthermore, the town had been paid.
The written settlement agreement makes no mention of the condition of the marital home and, with regard to taxes, the only mention made is that, upon Mr. Boyle’s vacation of the premises, Ms. Monighetti would be responsible for payment thereof. In addition, the agreement contains the following provision:
10. Entire Agreement. This Agreement, together with any exhibits and schedules attached hereto, contains the entire understanding of the parties with respect to the subject matter; and there are no representations, warranties, covenants or undertakings other than those expressly set forth herein. This Agreement supersedes and replaces all prior agreements and understandings of the parties.
The testimony elicited at the hearing revealed a consensus that the parties’ divorce, despite the fact that there were no children and the assets were moderate in terms of financial evaluation, was very contentious, and had already consumed numerous days of hearing — many motion having been filed. The negotiation of the terms of the separation agreement consumed many days and the negotiation of the final terms consumed the entire day CT Page 13350 of the dissolution. A review of the written agreement, as incorporated into the judgment, reveals many handwritten, penned-in and initialed additions and deletions, as well as a handwritten appended schedule.
As the Connecticut Supreme Court has recently reiterated, the elements of fraud are: (1) a false representation made by a party as a statement of fact; (2) the statement was untrue and was known by its maker to be untrue; (3) the statement was made in order to induce another party’s reliance on it; and (4) the other party did rely on the false statement to her detriment Weinstein v. Weinstein, 275 Conn. 671, 685 (2005). The opening of a marital judgment on the basis of fraud can only be premised on clear and convincing evidence, with the substantial likelihood that the result of the new trial would be different. Id. 275 Conn. at 685.
The evidence in the instant case fails to establish by clear and convincing evidence that Mr. Boyle knowingly misrepresented either the condition of the house or that the taxes had not been paid. Furthermore, in light of the specifics of the Separation Agreement incorporated into the judgment and the lack of any portion of that agreement addressing the contentions about which Ms. Monighetti now complains, it is unlikely that a different result would occur. Clearly, Ms. Monighetti had to incur some inconvenience and/or cost to clean up the marital home, however, outside of her present contentions that things would have been different if she had known of the condition, the evidence does not support the present contention that this alleged misrepresentation would have “broken the deal.” Quite candidly, in light of the contentiousness of the relationship of these parties, through to the late afternoon/early evening time of the ultimate dissolution of their marriage, and at the time of the hearing on the instant matter, it could be argued that any point of disagreement could be the deal breaker. The fact of the matter is that even they, at the end of that very long day, recognized that resolution on the basis of the many terms, both typed and penned-in, was necessary in order for them to move on with their lives.
Consequently, the motion to open is denied.
BY THE COURT.
Epstein, J. CT Page 13350-a