Opinion
No. FA96-391871
November 30, 2010
FACTS
On August 12, 1998, the court entered a judgment of dissolution between the plaintiff, Genevieve Clukey, and the defendant, Thomas Clukey. Thereafter, several motions for modification of alimony and child support were rendered.
On June 28, 2010, the plaintiff filed a motion to open the dissolution judgment on the ground of fraud. It is the plaintiff's position that the defendant obtained an asset during the divorce proceedings which he fraudulently and intentionally did not place in his name until after the divorce in order to deceive her; that the asset in question was not disclosed as an asset on his financial affidavit at the time of the divorce; and that he obtained a one-third interest in the property at issue by loaning his brother David Clukey $50,000 who then paid for the property without the defendant holding title or appearing as the owner of the asset. The plaintiff seeks to open and modify the judgment to "fairly and equitably distribute the asset." The defendant filed an objection to the motion to open on August 11, 2010. It is the defendant's position that he did not acquire title to the property identified as Two Chapel Street in Wallingford until 2004; and that, in July 2005, during the time he and the plaintiff were before the court on a motion to modify, they exchanged financial affidavits on which he disclosed his one-third ownership interest in the property. As of 2005, the defendant maintains, the plaintiff had full knowledge of his interest in the property and, therefore, she should be precluded by the defense of laches from claiming that she did not know about the property until now or approximately five years later.
On October 4, 2010, a hearing on the motion to open the judgment was held. At the conclusion of the hearing, the court requested additional briefing.
The only motion before the court was the motion to open since the defendant had withdrawn his motion to modify his weekly alimony order.
On November 1, 2010, the defendant filed a supplemental memorandum of law in opposition to the motion to open. Therein, he argues that (1) he committed no fraud; (2) the plaintiff failed to show by clear and convincing evidence that he committed any fraud; (3) the plaintiff failed to prove any detrimental reliance upon the facts that she now claims to be false; (4) the plaintiff failed to prove that there would be a substantial likelihood the result of the trial would have been any different; and (5) the plaintiff is guilty of laches or for an unreasonable delay in waiting three years to file her motion to open after she admitted to having learned of the alleged fraud. On November 4, 2010, the plaintiff filed a supplemental memorandum in support of the motion to open. She argues that the defendant's intent to conceal an asset in the divorce proceedings is evidenced in the letter written by him to the Connecticut Department of Revenue Services. Thus, she maintains that the defendant's own admissions prove that he knowingly misrepresented the nature of the asset on his financial affidavit and that he did not want to show ownership because of the divorce proceedings. The plaintiff testified that had she known the true nature of the asset, an interest in commercial real estate with income producing potential, she would have proceeded differently during the divorce proceedings. In addition, she points out that, even though the defendant did not acquire legal ownership until 2004, this does not overcome his intention to have acquired ownership in 1997 at a price set at that date. She further argues that the mere lapse of time between her discovery of the fraud and the filing of her motion to open does not constitute laches unless the delay resulted in prejudice to the defendant and he has offered no evidence of prejudice. Finally, she contends that the result of a new trial would be different if it were to include the defendant's income producing interest in the commercial real estate. For the court's convenience, the plaintiff has provided a calculation of the value of the asset with its appreciation from the purchase date in 1997 through the divorce date in 1998 in the amount of $83,391.40
In his supplemental brief, the defendant states that the plaintiff waited three years to file her motion to open after discovery of the alleged fraud, while in his earlier objection to the motion to open, the defendant stated that she waited five years.
DISCUSSION
Pursuant to General Statutes § 52-212a "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 . . ." Accord Practice Book § 17-4 ("[A]ny 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 succeeding the date on which notice was sent"). In addition, the civil rules for opening a judgment are applicable to family matters. Practice Book § 25-38. "A motion to open and vacate a judgment . . . is addressed to the [trial] court's discretion . . ." (Internal quotation marks omitted.) Reiner, Reiner Bendett, P.C. v. Cadle Co., 278 Conn. 92, 107, 897 A.2d 58 (2006). "[O]nce a judgment is rendered it is to be considered final . . . and should be left undisturbed by post-trial motions except for a good and compelling reason." (Citations omitted.) Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 713, 462 A.2d 1037 (1983).
"Although generally a motion to open must be filed within four months of entry of the judgment . . . a motion to open on the basis of fraud is not subject to this limitation but should be presented promptly after the discovery of the alleged fraud. See Varley v. Varley, 180 Conn. 1, 3-4, 428 A.2d 317 (1980)." (Citation omitted.) Konefal v. Konefal, 107 Conn.App. 354, 359 n. 5, 945 A.2d 484 (2008). Even "[a] judgment rendered by the court with the consent of the parties may be subsequently opened if it is shown that the agreement was obtained by fraud or intentional material misrepresentation[s]." Jucker v. Jucker, 190 Conn. 674, 677, 461 A.2d 1384 (1991); Accord A. Rutkin, K. Hogan S. Oldham, 8A Connecticut Practice Series: Family Law and Practice With Forms (2000) § 52.7, p. 260.
I.
Did the defendant commit fraud by listing on his financial affidavit the potential one-third ownership interest as a "loan receivable?"
"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 . . . A court's determinations as to the elements of fraud are findings of fact . . ."
"There are three limitations on a court's ability to grant relief from a dissolution judgment secured by fraud: (1) there must have been no laches or unreasonable delay by the injured party after the fraud was discovered; (2) there must be clear proof of the fraud; and (3) there is a substantial likelihood that the result of the new trial will be different . . . Mattson v. Mattson, 74 Conn.App. 242, 245-46, 811 A.2d 256 (2002)." (Internal quotation marks omitted.) Weinstein v. Weinstein, 275 Conn. 671, 685, 882 A.2d 53 (2005). See also Spilke v. Spilke, 116 Conn.App. 590, 595-96, 976 A.2d 69, cert. denied, 294 Conn. 918, 984 A.2d 68 (2009).
"The party alleging fraud . . . has the burden of proving it with . . . direct or circumstantial [evidence]." (Citation omitted.) Aksomitas v. Aksomitas, 205 Conn. 93, 100, 529 A.2d 1314 (1987). The standard of proof is a demanding one, that of "[c]lear and convincing evidence . . . This burden is sustained if the evidence convinces the trier of fact of a reasonable belief that the facts asserted are `highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.' Shelton v. Statewide, 85 Conn.App. 440, 443-44 [ 857 A.2d 432] (2004), quoting Somers v. Statewide Grievance Committee, 245 Conn. 277, 290-91 [ 715 A.2d 712] (1998). The imposition of this standard of proof serves as a caution to preclude relief if the evidence does not meet this standard. In re Tyqwane [V.], 85 Conn.App. 528, 539 [ 857 A.2d 963] (2004)." Lavouge-Sinatro v. Sinatro, Superior Court, judicial district of Hartford, Docket No. FA 05 4008647 (September 12, 2008, Epstein, J.).
"To determine whether there was proof of fraud, we consider the evidence through the lens of our well settled policy regarding full and frank disclosure in marital dissolution actions. Our [rules of practice have] long required that at the time a dissolution of marriage, legal separation or annulment action is claimed for a hearing, the moving party shall file a sworn statement . . . of current income, expenses, assets and liabilities, and pertinent records of employment, gross earnings, gross wages and all other income . . . The opposing party is required to file a similar affidavit at least three days before the date of the hearing . . ."
"Our cases have uniformly emphasized the need for full and frank disclosure in that affidavit. A court is entitled to rely upon the truth and accuracy of sworn statements required by . . . the [rules of practice], and a misrepresentation of assets and income is a serious and intolerable dereliction on the part of the affiant which goes to the very heart of the judicial proceeding . . . These sworn statements have great significance in domestic disputes in that they serve to facilitate the process and avoid the necessity of testimony in public by persons still married to each other regarding the circumstances of their formerly private existence . . ."
"[In addition] in Monroe v. Monroe, [ 177 Conn. 173, 182, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979)], we referred to the requirement of full and frank disclosure between attorney and marital client. [L]awyers who represent clients in matrimonial dissolutions have a special responsibility for full and fair disclosure, for a searching dialogue, about all of the facts that materially affect the client's rights and interests. Id., 183. In Baker v. Baker, 187 Conn. 315, 322, 445 A.2d 912 (1982), we imposed this requirement of honest disclosure between the litigating parties and the court. It is a logical extension of those precedents to require such full and frank disclosure as well between the marital litigants themselves . . ."
"We have recognized, furthermore, in the context of an action based upon fraud, that the special relationship between fiduciary and beneficiary compels full disclosure by the fiduciary . . . Although marital parties are not necessarily in the relationship of fiduciary to beneficiary, we believe that no less disclosure is required of such parties when they come to court seeking to terminate their marriage."
"Finally, the principle of full and frank disclosure . . . is essential to our strong policy that the private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine . . . That goal requires, in turn, that reasonable settlements have been knowingly agreed upon . . . Billington v. Billington, 220 Conn. 212, 219-22, 595 A.2d 1377 (1991)." (Internal quotation marks omitted.) Weinstein v. Weinstein, supra, 275 Conn. 686-87.
"In considering claims of fraudulent nondisclosure [however], it is important to keep in mind the scope of matters to which a disclosure applies. Generally, one has the obligation to disclose only `known facts,' and the obligation does not similarly extend to one's intentions or expectations. In that regard, the mere intention to perform an act in the future cannot be considered a `known fact' because a party's intention to perform may never materialize into actual performance." A. Rutkin, K. Hogan S. Oldham, 8A Connecticut Practice Series: Family Law and Practice With Forms, § 52.7, p. 21 (Cum.Supp. 2009-2010), citing Pospisil v. Pospisil, 59 Conn.App. 446, 451, 757 A.2d 655 ("plaintiff's failure to disclose her intention to remarry cannot amount to fraudulent nondisclosure"), cert. denied, 254 Conn. 940, 761 A.2d 762 (2000).
The court in Jackson v. Jackson, 2 Conn.App. 179, 188, 478 A.2d 1026, cert. denied, 194 Conn. 805, 482 A.2d 710 (1984) granted the motion to open the judgment on the basis of fraud. The court found that the "information regarding the stock [which lead the wife to believe she would be receiving approximately one half of the total shares] had been presented in a manner which disguised the split and the information provided did not serve to alert the wife or her attorney that further inquiries should be made." A. Rutkin, K. Hogan S. Oldham, 8A Connecticut Practice Series: Family Law and Practice With Forms, § 52.7, p. 264 (2000). These types of claims often come down to an issue of credibility, which is one of fact for the trial court. See Grayson v. Grayson, 4 Conn.App. 275, 293, 494 A.2d 576 (1985) ("credibility of witnesses, the finding of facts, and the drawing of inferences are all in the trier's province"), appeal dismissed, 202 Conn. 221, 520 A.2d 225 (1987).
In both Jackson and Grayson, the court relied on four, rather than three, limitations on its ability to grant relief from a dissolution judgment secured by fraud. The fourth limitation that "there must have been a diligent effort made in the original action to discover and expose the fraud" is no longer a requirement. See Billington v. Billington, 220 Conn. 212, 218-22, 595 A.2d 1377 (1991).
In Bornemann v. Bornemann, 245 Conn. 508, 752 A.2d 978 (1998), for the first time, the court determined that unvested stock options were available for equitable distribution pursuant to General Statutes § 46b-81 as they were similar to vested pension benefits, were earned by the defendant during the marriage and intended as compensation for past services, and, therefore, constituted an asset of the marital estate. The stock options at issue had been granted but were not yet exercisable at the time of dissolution and could be exercised at a future date only if certain conditions were to be met. Id., 515. Relying on Krafick v. Krafick, 234 Conn. 783, 795, 663 A.2d 365 (1995), which involved determining whether vested pension benefits represented a property interest subject to distribution under § 46b-81 or were a mere expectancy, the Appellate Court in Bornemann stated that "we analyzed the contingent nature of the pension benefits at issue in order to determine whether the contingency to which the benefits were subject rendered them a mere expectancy . . . We concluded that the pension benefits represented a presently existing interest because they created in their holder an enforceable contract right, and such a right represents more than a mere expectancy . . . The fact that a contractual right is contingent upon future events does not degrade that right to an expectancy." (Citations omitted; internal quotation marks omitted.) Bornemann v. Bornemann, supra, 516. The court reasoned that "[d]espite the fact that the stock options at issue in this case had not yet `matured' or `vested' at the time of dissolution, the options created an enforceable right in the defendant." Id., 517-18.
"Our conclusion is in accord with the conclusions of several other jurisdictions that have considered whether unvested stock options are property subject to distribution at the time of dissolution. The trend in other jurisdictions has been to treat unvested stock options as property on the basis that the options create a contractual right in the employee who holds them that is a valuable form of intangible property. Analogously, jurisdictions that have not yet considered whether unmatured stock options are property have decided that similar sources of deferred income, such as pension benefits and trust interests, whether vested or not, constitute property subject to distribution in a dissolution action, provided that the contingent nature of the interest does not render the interest a mere expectancy. In the court's view, the modern trend toward recognizing all forms of presently existing interests as property subject to distribution at the time of dissolution is well considered. The failure to interpret property broadly under § 46b-81 could, and likely would, result in substantial inequity in light of the numerous and varied forms of employment compensation that are in use today. Such a result clearly would be contrary to the purposes of § 46b-81 and would not be in keeping with the equitable nature of dissolution proceedings under that section." Id., 518-20.
The hearing on the motion to open in the present case included testimony from the defendant, Ron Clukey, the plaintiff and David Clukey, which revealed the following. In 1997, the defendant entered into a written agreement with his brother David Clukey loaning him $50,000 for the purchase of property located at Two Chapel Street in Wallingford. The agreement provided that, at some time in the future, the defendant could exercise an option to purchase a one-third interest in the property for $38,000 and get the remainder back or request a repayment of his $50,000 loan. The defendant included this property interest on his financial affidavit as a "loan receivable" during the dissolution proceeding in 1998. In her decision dissolving the marriage between the parties, Judge Munro referenced the "loan receivable" as a claim solely belonging to the defendant. She further stated that this loan was in violation of the automatic order restraining any transfer of assets. In 2004, the defendant exercised his option and acquired a one-third ownership of the property. In 2007, in response to an inquiry by the Connecticut Department of Revenue Services as to which owners were liable in 2004 for the payment of the conveyance taxes, the defendant stated that he owed no taxes on the property because for the 1997 tax year, they had been paid, and he had to pay no new taxes for the 2004 year when he took legal ownership of his one-third interest in the property. The defendant further stated that, due to the automatic orders, he had been prohibited from acquiring ownership in any property during the divorce proceedings.
When the dissolution judgment was rendered, neither the plaintiff nor her counsel knew that the purpose of the loan by the defendant to his brother in the amount of $50,000 was for a one-third interest in real property. The defendant's nondisclosure of his interest in the property reported as a "loan receivable" on his financial affidavit was an untrue representation of the asset, as evidenced by the letter to the Connecticut department of revenue services, the representation was made with the intent of defrauding the plaintiff and the plaintiff relied on that representation by not pursuing her distributive share of the asset during the divorce proceedings. Thus, the defendant's failure to include on his financial affidavit the real property as an asset subject to distribution shows that the defendant did not provide the court with a full and frank disclosure of his finances. Rather, his reference to the asset as a "loan receivable" was made with the intent to circumvent the trial court's proscription against acquiring property in violation of the automatic orders. Nor was the option to exercise or not to exercise the option a mere expectancy but more akin to a presently existing enforceable right with the defendant in which he possessed the right to accept the option under certain conditions. Lastly, a new trial would render a substantially different financial distribution for the plaintiff.
Research has not revealed any cases that address the issue of whether calling an asset a loan receivable is fraud. Nonetheless, the evidence surrounding the defendant's nondisclosure of the asset by disguising the asset as a "loan receivable" satisfies the criteria for fraud.
II
At the time of dissolution, was the value of the ownership interest equal to the amount of the loan receivable?
"The distribution of assets in a dissolution action is governed by [General Statutes] § 46b-81, which provides in pertinent part that a trial court may `assign to either the husband or the wife all or any part of the estate of the other . . . In fixing the nature and value of receivable property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.' . . . This approach to property division is commonly referred to as an `all-property' equitable distribution scheme. See 3 Family Law and Practice (A. Rutkin ed., 1995) § 37.01[2][a][v], p. 37-39. [Section 46b-81] does not limit, either by timing or method of acquisition or by source of funds, the property subject to a trial court's broad allocative power. A. Rutkin, E. Effron K. Hogan, 7 Connecticut Practice Series: Family Law and Practice with Forms (1991) § 27.1, pp. 398-400." Krafick v. Krafick, supra, 234 Conn. 792.
"There are three stages of analysis regarding the equitable distribution of each resource: first, whether the resource is property within § 46b-81 to be equitably distributed (classification); second, what is the appropriate method for determining the value of the property (valuation); and third, what is the most equitable distribution of the property between the parties (distribution)." (Internal quotation marks omitted.) Lopiano v. Lopiano, 247 Conn. 356, 364, 752 A.2d 1000 (1998). "With respect to dissolution proceedings, this court has established that the value of the parties' assets must be determined as of the time the judgment of dissolution is rendered. See Sunbury v. Sunbury, 216 Conn. 673, 676, 583 A.2d 636 (1990) (`[i]n the absence of any exceptional intervening circumstances occurring in the meantime, [the] date of the granting of the divorce would be the proper time as of which to determine the value of the estate of the parties upon which to base the division of property' . . .) . . . (Citation omitted; internal quotation marks omitted.) Weinstein v. Weinstein, supra, 275 Conn. 696-97. "Thus . . . the duty to disclose continue[s] until [a] judgment of dissolution is final." Id., 698.
"[U]ntil 2001, the test for determining whether an interest or benefit constituted property for purposes of equitable distribution under § 46b-81 had been whether the party had an existing enforceable right to it. In cases in which such a right did not exist on the date of dissolution, our Supreme Court refused to recognize that interest or benefit as property subject to distribution under § 46b-81. The case law changed with the case of Bender v. Bender, 258 Conn. 733, 785 A.2d 197 (2001). In Bender, the record disclosed that, at the time of the marital dissolution, the defendant had been employed as a firefighter for approximately nineteen years and that he would be entitled to receive a municipal pension in the event that he completed twenty-five years of service. Thus, when the marriage was dissolved, the defendant did not then have a present right to the future receipt of a pension because there was no vesting of pension rights before twenty-five years. His rights vis-a-vis his pension were limited to a return of his contributions to the pension during his years of service. The principal issue confronting the court in Bender was whether the defendant's unvested pension benefits were property pursuant to § 46b-81. Answering that question in the affirmative, our Supreme Court focused not on whether the defendant had any presently existing enforceable rights regarding his pension expectancy, but rather on whether his eventual realization of pension benefits was more than an expectancy. The court held that in determining whether a certain interest is property subject to equitable distribution under § 46b-81, we look to whether a party's expectation of a benefit attached to that interest was too speculative to constitute divisible marital property. Id., 748. The court concluded that the trial court had correctly classified the entire unvested pension as marital property, notwithstanding the absence of any presently existing enforceable right, on the ground that his expectation in the pension plan was sufficiently concrete, reasonable and justifiable as to constitute a presently existing property interest for equitable distribution purposes. Id., 749.
"In so concluding, the court seems to have recast the analysis used to determine whether an interest or benefit is property under § 46b-81 to a more probabilistic assessment untethered to the existence of a presently existing enforceable right." Consequently, since Bender, whether a party has a presently existing enforceable right to the present or future receipt of the asset appears no longer to be determinative. Instead, the determination of whether a claimed asset is subject to distribution pursuant to § 46b-81 appears to depend on the degree of certainty revealed by the evidence that the litigant will eventually receive the asset. In sum, in accordance with the dictates of Bender, in confronting property claims under § 46b-81, trial courts must make an assessment on a case-by-case basis of the likelihood of the person's receiving the asset claimed by his or her spouse. If the likelihood is not too speculative, then it is property subject to valuation and distribution." (Internal quotation marks omitted.) Czarzasty v. Czarzasty, 101 Conn.App. 583, 593-94, 922 A.2d 272, cert. denied, 284 Conn. 902, 931 A.2d 262 (2007).
In the present case, the defendant's option to exercise his property interest is not so speculative as not to be an enforceable right. In fact, the defendant exercised his option, and thereby, the property right has vested. The valuation in the present case is the sale price of the commercial property in 1997, when the property was purchased for $160,000. Thus, it is submitted that, at the time of dissolution, the property interest should have been included as a part of the marital estate and, therefore, the plaintiff would have been entitled to one-half of the defendant's one-third interest.
III
Is the plaintiff precluded by laches from opening the judgment?
"Laches consists of an inexcusable delay which prejudices the defendant . . . First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant . . . A determination that a plaintiff has been guilty of laches is one of fact for the trier and not one that can be made by this court, unless the subordinate facts found make such a determination inevitable as a matter of law." (Citation omitted; internal quotation marks omitted.) Riscica v. Riscica, 101 Conn.App. 199, 207-08, 921 A.2d 633 (2007). Even if in the present case the defendant did disclose on his financial affidavits during the postjudgment proceedings his ownership of the property and its rental income, the plaintiff still would have had no way of knowing when the asset was acquired. Specifically, she had no knowledge that the asset had been acquired by the defendant prior to the dissolution decree. She testified that all she knew was that the loan of $50,000 to the defendant's brother was related to an asset, which she thought might be the purchase of a practice. It was not until 2010 following the receipt of a letter from the defendant that he wanted to modify and/or terminate her alimony due to a back injury he had sustained that she had been able to procure the funds to pay for legal representation of this matter and, thus, to move to open the judgment. Previously in 2005 when due to lack of funds she had represented herself, she was unsuccessful in contesting the defendant's motion to modify. As a result, she stated that she needed counsel to defend the defendant's attempt to reduce or terminate her alimony. She further testified on cross-examination that she was using money from her Smith Barney account to pay for counsel. Although she had the account in 2007, she pointed out, that she had to wait to "reshuffle around some money" before she could access that money. Notwithstanding the three years between her discovery of the alleged fraud and filing her motion to open the judgment, no evidence was presented by the defendant as to how he had been prejudiced by the delay. Accordingly, it is submitted that neither the delay was inexcusable nor was the defendant prejudiced in the present case.
IV
If a dissolution judgment is a part of a "mosaic," how can the court determine the value of this one asset without relitigating the entire divorce judgment?
"The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other." (Internal quotation marks omitted.) Gervais v. Gervais, 91 Conn.App. 840, 848, 882 A.2d 731 cert. denied 276 Conn. 919, 888 A.2d 88 (2005). "With respect to the financial orders predicated on those findings of fact, [the] issues involving financial orders are entirely interwoven." (Internal quotation marks omitted.) Grimm v. Grimm, 276 Conn. 377, 386, 886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126 S.Ct. 2296, 164 L.Ed.2d 815 (2006). "Furthermore, trial courts are endowed with broad discretion to distribute property in connection with a dissolution of marriage." (Internal quotation marks omitted.) Misthopoulos v. Misthopoulos, 297 Conn. 358, 378, 999 A.2d 721 (2010). Even though "our courts have utilized the mosaic doctrine as a remedial device that allows reviewing courts to remand cases for reconsideration of all financial orders [despite the fact that] the review process might reveal a flaw only in the alimony, property distribution or child support awards, . . . [e]very improper order . . . does not necessarily merit a reconsideration of all of the trial court's financial orders. A financial order is severable when it is not in any way interdependent with other orders and is not improperly based on a factor that is linked to other factors . . ." (Citations omitted; internal quotation marks omitted.) Marshall v. Marshall, 119 Conn.App. 120, 135-36, 988 A.2d 314, cert. granted, CT Page 23057 296 Conn. 908, 993 A.2d 467 (2010). "Moreover, the power to act equitably is the keystone to the court's ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage." (Internal quotation marks omitted.) Id., 131. It is submitted that, in the present case, where the defendant has disguised an asset of the marital estate as a "loan receivable," this court should grant the plaintiff's motion to open the judgment and correct that portion of the judgment dealing with the valuation and equitable distribution of the defendant's property interest.
Accord Ehrenkranz v. Ehrenkranz, 2 Conn.App. 416, 424, 479 A.2d 826 (1984); Greco v. Greco, 275 Conn. 348, 354, 880 A.2d 872 (2005); Krafick v. Krafick, supra, 234 Conn. 806; Fahy v. Fahy, 227 Conn. 505, 515, 630 A.2d 1328 (1993); Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989); Picton v. Picton, 111 Conn.App. 143, 149-50, 958 A.2d 763 (2008), cert. denied, 290 Conn. 905, 962 A.2d 794 (2009); Chyung v. Chyung, 86 Conn.App. 665, 668, 862 A.2d 374 (2004), cert. denied, 273 Conn. 904, 868 A.2d 744 (2005); Quindazzi v. Quindazzi, 56 Conn.App. 336, 339, 742 A.2d 838 (2000); Cordone v. Cordone, 51 Conn.App. 530, 533, 752 A.2d 1082 (1999); Puris v. Puris, 30 Conn.App. 443, 449, 620 A.2d 829 (1993); Watson v. Watson, 20 Conn.App. 551, 557, 568 A.2d 1044 (1990), rev'd in part on other grounds, 221 Conn. 698, 607 A.2d 383 (1992); Daly v. Daly, 19 Conn.App. 65, 70, 561 A.2d 951 (1989); Cuneo v. Cuneo, 12 Conn.App. 702, 710, 533 A.2d 1226 (1987); Hines v. Hines, Superior Court, judicial district of New London, Docket No. FA 03 056232 (August 27, 2010, Shluger, J.).
CONCLUSION
For the foregoing reasons, plaintiff's Motion to Open the Judgment is granted. The court was not provided with the value of the subject property as of the date of the dissolution. A new hearing on the value of the property as of the date of dissolution is ordered. The plaintiff is awarded legal fees in the amount of $7,500.00 plus costs to bring this action to be paid in full within 30 days of the date of judgment. They court reserves the right to order additional attorneys fees and costs for the subsequent hearing ordered herein.