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CAROL S. GORDON v. ALAN J. GORDON
(AC 35274)
Beach, Robinson and Flynn, Js.*
Argued December 2, 2013—officially released February 4, 2014
(Appeal from Superior Court, judicial district of New
Haven, Gould, J.)
Anthony V. Zeolla, for the appellant (defendant).
Irving H. Perlmutter, with whom, on the brief, was
Andrew M. Ullman, for the appellee (plaintiff).
Opinion
ROBINSON, J. The defendant, Alan J. Gordon,
appeals from the denial of his motion to open the court’s
judgment dissolving his marriage to the plaintiff, Carol
S. Gordon, which incorporated by reference the terms
of a separation agreement entered into by the parties.
The defendant claims that the court abused its discre-
tion in denying his motion to open because its decision
was based on erroneous findings that the separation
agreement was fair and equitable, that neither the plain-
tiff nor her counsel had coerced the defendant into
signing the separation agreement, and that no fraud
was committed by the plaintiff with respect to errors
in her financial affidavit. We conclude that the record
is inadequate to review the defendant’s claim, and, thus,
we affirm the judgment of the trial court.
The record reveals the following relevant facts and
procedural history. The parties were married on May
28, 1989.1 In October, 2010, the plaintiff initiated the
present action to dissolve the marriage.2 The defendant
filed an answer and a cross complaint seeking dissolu-
tion of the marriage. Throughout the dissolution pro-
ceedings, both parties were represented by counsel.
On April 18, 2011, the parties appeared in court having
negotiated and executed a separation agreement. The
court, after conducting under oath a thorough canvass
of both parties regarding their understanding of the
terms of the agreement, rendered a judgment of dissolu-
tion of marriage that incorporated by reference the
separation agreement.3 Neither the defendant nor his
counsel raised any issues at the hearing regarding the
content, the making or the validity of the separation
agreement.
On August 9, 2011, the defendant filed an appearance
as a self-represented party along with a motion to open
the judgment of dissolution. According to the defen-
dant, he had signed the separation agreement ‘‘under
duress and intimidation by the plaintiff’s counsel.’’ In his
motion, the defendant stated that he had been arrested
prior to the filing of the divorce action for ‘‘questionable
non-physical domestic circumstances.’’ The arrest
resulted in the issuance of a protective order.4 The
defendant claimed in his motion to open that ‘‘[d]uring
settlement discussions, the plaintiff’s counsel threat-
ened to execute an arrest warrant against the defendant
for violation of the protective order unless the defen-
dant agreed to the terms of the settlement. The defen-
dant’s counsel failed to apprise the defendant of
improper act[s] of intimidation, duress, and coercion
brought to the table by the plaintiff’s counsel. The defen-
dant’s counsel also failed to recognize or protect the
defendant’s rights from the plaintiff’s unethical con-
duct.’’ On September 22, 2011, following a hearing, the
court issued an order denying the motion to open with-
out comment. The defendant did not appeal from
that decision.5
On August 31, 2012, the defendant filed a second
motion to open the dissolution judgment.6 The defen-
dant argued in the second motion to open that the
plaintiff had ‘‘omitted critical information and made
fraudulent misrepresentations on her April 18, 2011
financial affidavit,’’ and that, as a result, it would have
been impossible for the court to have divided fairly and
equitably the marital assets. According to the motion,
the asset that the plaintiff failed to disclose on her
financial affidavit was a residence on Patton Road in
North Haven allegedly valued at $350,000.7 The plaintiff
filed an objection to the motion to open, arguing that
the sole purpose of the motion was to ‘‘harass and vex
the plaintiff.’’
The court held a hearing on the second motion to
open and other postjudgment motions on November
26, 2012. When counsel for the defendant tried to raise
an allegation that the plaintiff’s counsel had coerced
the defendant into signing the agreement, the court
indicated that that issue already had been previously
argued and decided by the court against the defendant.8
The defendant never requested an opportunity from the
court to present evidence of the alleged fraud or to call
any witnesses. After hearing arguments, the court stated
on the record: ‘‘I don’t see anything here that in any way
would permit this court to reopen. You’re absolutely
correct, I have the discretion to do that, but my personal
recollection as well as a review of the file indicates that
this gentleman entered into an agreement, he knew
what he was doing, he had adequate counsel, and as I
said, he has struck me, to the times he’s been in front
of me, as an intelligent man. I recollect that he is a
professional. I think I’m remembering the gentleman
correctly, and, I, you know, I just don’t see it. As far
as I’m concerned, the motion to open is denied.’’ The
court did not file any written memorandum of decision.
The court denied the motion on the papers without
further comment. This appeal followed.
We first set forth the legal standards governing our
review. ‘‘[O]ur courts have inherent power to open,
correct and modify judgments, but that authority is
restricted by statute and the rules of practice. . . . A
motion to open a judgment is governed by General
Statutes § 52-212a and Practice Book § 17-4. Section 52-
212a provides in relevant part: Unless otherwise pro-
vided by law and except in such cases in which the
court has continuing jurisdiction, 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. . . . Practice Book § 17-4
states essentially the same rule.’’ (Internal quotation
marks omitted.) Dougherty v. Dougherty, 109 Conn.
App. 33, 38, 950 A.2d 592 (2008). Nevertheless, it is also
well settled that ‘‘[a] judgment rendered may be opened
after the four month limitation [set forth in § 52-212a
and Practice Book § 17-43] if it is shown that the judg-
ment was obtained by fraud, in the absence of actual
consent, or because of mutual mistake.’’ (Internal quota-
tion marks omitted.) Richards v. Richards, 78 Conn.
App. 734, 739, 829 A.2d 60, cert. denied, 266 Conn. 922,
835 A.2d 473 (2003); see also Kenworthy v. Kenworthy,
180 Conn. 129, 131, 429 A.2d 837 (1980).
‘‘We do not undertake a plenary review of the merits
of a decision of the trial court to grant or 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 discre-
tion, this court must make every reasonable presump-
tion 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.) Weinstein v.
Weinstein, 275 Conn. 671, 685, 882 A.2d 53 (2005). A
trial court’s determinations regarding the existence of
a mutual mistake or the elements of fraud or duress
are findings of fact that we will not disturb on appeal
unless they are shown to be clearly erroneous. See
Jenks v. Jenks, 232 Conn. 750, 753, 657 A.2d 1107 (1995);
Terry v. Terry, 102 Conn. App. 215, 223, 925 A.2d 375,
cert. denied, 284 Conn. 911, 931 A.2d 934 (2007).
The defendant’s sole claim on appeal is that the court
abused its discretion in denying his second motion to
open. In support of that claim, the defendant argues
that the court’s decision was based on three erroneous
findings; specifically, that the separation agreement was
fair and equitable, that there had been no coercion by
the plaintiff or her counsel in securing the defendant’s
signature on the separation agreement, and that the
plaintiff had not committed fraud with respect to her
financial affidavit disclosures. In the second motion to
open and accompanying memorandum of law, however,
the only ground that the defendant raised as a basis for
opening the judgment was the plaintiff’s alleged fraud
in failing to disclose assets on her financial affidavit.
‘‘[A] party cannot present a case to the trial court on
one theory and then seek appellate relief on a different
one . . . .’’ Albemarle Weston Street, LLC v. Hartford,
104 Conn. App. 701, 709, 936 A.2d 656 (2007). ‘‘[W]e
have consistently declined to review claims based on
a ground different from that raised in the trial court.’’
(Internal quotation marks omitted.) In re Jah’za G., 141
Conn. App. 15, 21, 60 A.3d 392, cert. denied, 308 Conn.
926, 64 A.3d 329 (2013). Because fraud was the only
ground properly before the court in its consideration
of the second motion to open, that was the sole ground
preserved for appeal.9
We next must consider whether we have an adequate
record for review of the defendant’s fraud allegation.
We conclude that we do not. ‘‘The denial of a motion
to open is an appealable final judgment’’; Alix v. Leech,
45 Conn. App. 1, 3, 692 A.2d 1309 (1997); therefore,
pursuant to Practice Book § 64-1 (a), the court was
required to state, either orally or in writing, a decision
that encompassed ‘‘its conclusion as to each claim of
law raised by the parties and the factual basis therefor.
. . .’’ If an oral decision is rendered, a signed transcript
of the oral decision should be created and filed for use
in any appeal. If the court fails to file an oral or written
decision, the appellant, who has the duty to provide an
adequate record for appellate review; see Practice Book
§ 61-10; must file a notice to that effect with the appel-
late clerk in accordance with Practice Book § 64-1 (b).
The court in the present case did not file a written
memorandum of decision explaining its ruling denying
the motion to open, nor did it prepare and sign a tran-
script of an oral ruling. The defendant did not file a
notice pursuant to Practice Book § 64-1 with the appel-
late clerk’s office, nor did he file a motion asking the
court to articulate the factual and legal basis for its
ruling. See Practice Book § 66-5. On occasion, we have
overlooked an appellant’s failure to ensure that the trial
court sign a transcript of an oral decision provided that
the appellant had filed an unsigned transcript and ‘‘we
[were] able to identify readily the court’s decision,
encompassing its findings . . . .’’ (Emphasis added.)
State v. Payne, 121 Conn. App. 308, 312, 996 A.2d 302,
cert. denied, 297 Conn. 919, 996 A.2d 1193 (2010); see
also Stechel v. Foster, 125 Conn. App. 441, 445–46, 8
A.3d 545 (2010), cert. denied, 300 Conn. 904, 12 A.3d
572 (2011). Here, although the defendant has provided
us with an unsigned copy of the transcript of the hearing
on the motion to open, we cannot readily identify any
portion that encompasses the court’s factual findings
with respect to the defendant’s claim of fraud. Other
than stating at one point that the defendant was intelli-
gent, knew what he was doing, and was represented by
counsel when he agreed to the terms of the separation
agreement, the court concluded upon its review of the
record that there was no basis for opening the dissolu-
tion judgment. The record contains no findings by the
court with regard to the defendant’s claim of fraud
involving the plaintiff’s financial disclosures. Cognizant
that we must make every reasonable presumption in
favor of the correctness of the court’s decision to deny
the motion to open, we are left to conclude on the basis
of our review of the limited record provided that the
court acted reasonably and did not abuse its discretion
in denying the defendant’s motion.10
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
There are three children of the marriage. The children were born in
August, 1991, September, 1994, and August, 1998.
2
The complaint was in two counts. Count one sought a dissolution of the
marriage on allegations that the marriage had broken down irretrievably
with no possibility of reconciliation. Count two sought enforcement of a
July 5, 1991 postnuptial agreement of the parties.
3
As part of its canvass, the court asked each party if he or she was satisfied
with their legal representation regarding the negotiation and drafting of
the separation agreement as well as with the dissolution itself. Both the
defendant and the plaintiff answered in the affirmative. Part XII, paragraph
19.1, of the separation agreement further provides in relevant part that
‘‘each party, upon such legal advice and upon such knowledge, feels this
[a]greement to be fair, just and reasonable, and each party signs this
[a]greement freely and voluntarily.’’
4
The defendant attached a transcript from a hearing in his criminal matter
as an exhibit to an objection he filed in response to a request by the plaintiff
for attorney’s fees to respond to the motion to open. The existence of a
protective order is indicated in that transcript. The defendant’s criminal file
is not otherwise before this court, and neither party has asked us to take
judicial notice of the content of that file.
5
On October 19, 2011, the defendant filed a motion with the trial court
that was titled a motion for extension of time, but that in fact sought
permission to file a late appeal. The defendant also filed an application for
a waiver of fees to file the appeal. The court granted the application for a
waiver of fees, but did not act on the motion for permission to file a late
appeal, presumably because it lacked the authority to extend the appeal
period once it had expired; Practice Book § 66-1 (c) (4); and the authority
to allow a late appeal lies with this court in accordance with Practice Book
§ 60-2. On December 16, 2011, the defendant filed a second motion with the
trial court seeking permission to file a late appeal challenging the September
22, 2011 denial of his motion to open. In that motion, the defendant raised
additional arguments as to why the dissolution judgment should be opened,
namely, that the settlement agreement did not contain a fair and equitable
distribution of the parties’ assets and that the plaintiff committed fraud by
failing to include several key assets on her financial affidavit. The motion
was denied on February 3, 2012.
6
Although new counsel had filed an appearance on April 24, 2012, in
addition to the defendant’s appearance, the second motion to open was
signed and filed by the defendant as a self-represented party.
7
Counsel conceded at oral argument before this court that the defendant
was aware of the residence when he executed the separation agreement.
In his appellate brief and at oral argument before this court, the defendant
argued that the plaintiff also misrepresented the value of nine rooms of
household contents and failed to disclose other assets, but those allegations
were not raised in the motion to open or at the hearing on the motion.
8
The court stated: ‘‘We already dealt with that issue, counselor, and I
think it may have been before your time in the case, but that issue has
already been dealt with, all right. I made a finding previously, and I do recall
that very succinctly I made a finding previously that that argument absolutely
holds no water, with all due respect to you and your client.’’
9
Even if we were to conclude on the basis of statements made by counsel
during the hearing on the motion to open that the defendant properly pre-
served for appeal his arguments regarding the fairness of the separation
agreement and the allegations of coercion despite not raising those argu-
ments in his written motion; see, e.g., Poisson v. Quality Electrical Contrac-
tors, Inc., 29 Conn. App. 151, 155, 612 A.2d 1232 (1992); as we will explain
with regard to the defendant’s fraud argument, the record before us is not
adequate for meaningful review. Finally, additional legal hurdles would stand
to thwart any relief on the merits of the defendant’s unpreserved arguments.
In ruling on the second motion to open, the court never made any factual
finding regarding the fairness of the separation agreement. Although such
a factual finding was made by the court in rendering the dissolution judg-
ment, that finding cannot be collaterally attacked by a motion to open filed
outside the four month statutory period because it does not implicate fraud,
lack of consent or a mutual mistake. See Kenworthy v. Kenworthy, supra,
180 Conn. 131. The court also never made a finding in conjunction with its
ruling on the second motion to open that there was no coercion on the part
of the plaintiff or her counsel; rather, the court refused to revisit that issue,
having previously found it to lack merit in disposing of the defendant’s first
motion to open. The defendant could have appealed from the decision on
the first motion to open, but he never perfected an appeal despite some
failed efforts to do so. A party is precluded from raising on appeal any
nonjurisdictional claim of error that it had an opportunity to raise in an
appeal from an earlier judgment. See In re Shamika F., 256 Conn. 383,
406–408, 773 A.2d 347 (2001).
10
Pursuant to Practice Book § 61-10, which was amended to take effect
after the defendant filed his second motion to open, this court will no longer
decline to review a claim on appeal solely on the basis of a party’s failure
to seek an articulation. See Practice Book § 61-10 (b). As stated in the
commentary to the rule, however, the new subsection (b) that was created
by the amendment was not intended to preclude this court from ‘‘declining
to review an issue where the record is inadequate for reasons other than
solely the failure to seek an articulation, such as, for example, the failure
to procure the trial court’s decision pursuant to [Practice Book §] 64-1 (b)
. . . .’’ Practice Book § 61-10, commentary. The new subsection also in no
way alters the responsibility of an appellant to ensure that the appellate
record is perfected for proper presentation of all claims raised.
In the present case, we do not decline to review the defendant’s claim,
rather we review the claim on the record provided. Nor is our resolution
founded solely upon the defendant’s failure to seek an articulation, but upon
his failure to procure a memorandum of decision.