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GAIL REINKE v. WALTER SING
(AC 36210)
Beach, Keller and Harper, Js.
Argued April 9, 2015—officially released February 2, 2016
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Dennis F. Harrigan, judge trial
referee [dissolution judgment]; Shay, J. [motion to
open].)
Eric M. Higgins, for the appellant (plaintiff).
Reine C. Boyer, for the appellee (defendant).
Opinion
PER CURIAM. The plaintiff, Gail Reinke, appeals
from the judgment of dissolution of her marriage to the
defendant, Walter Sing, rendered after the granting of
a motion to open a prior judgment of dissolution. The
plaintiff argues that the trial court erred (1) as to the
award of alimony, by decreasing the term, ordering the
term to be nonmodifiable and increasing the alimony
award by an inequitably small amount; (2) as to the
property distribution, by inequitably dividing assets pre-
viously concealed by the defendant; and (3) as to attor-
ney’s fees, by not awarding the plaintiff legal fees for
the fourteen month period encompassing the trial. We
conclude that the trial court lacked subject matter juris-
diction to grant the motion to open, and therefore
reverse the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. The parties were married in 1989
and had two children.1 The plaintiff held a bachelor’s
degree, and previously had been employed in a number
of well paying jobs. During the marriage she became a
homemaker; she also worked part-time ‘‘from time to
time.’’ The defendant held a degree in mathematics and
he worked throughout the marriage, most recently as
a self-employed consultant.
The marriage was dissolved by the trial court, Hon.
Dennis F. Harrigan, judge trial referee, on October 2,
2007. The parties entered into a ‘‘Stipulation for Judg-
ment,’’ which was incorporated into the judgment of
dissolution. On May 3, 2010, the plaintiff filed a motion
to open the judgment of dissolution on the basis of
fraud, claiming that the defendant failed to disclose
some of his assets on the financial affidavit relied upon
at the time of the dissolution. On September 28, 2010,
the trial court, Shay, J., opened the judgment ‘‘by oral
agreement of both parties, without a finding of fraud,’’
in order to reassess the financial orders.
Following a trial, the court issued its decision on
August 23, 2013. The court found that the defendant’s
income actually had been twice the amount that the
defendant disclosed at the time of the original dissolu-
tion, and the lesser amount had been relied on in formu-
lating the terms of the initial stipulation and judgment.
The court also found that the defendant had underre-
ported the values of his investment accounts, retire-
ment accounts, life insurance, and anticipated tax
refund; he also underreported the value of the plaintiff’s
share of a condominium in New Jersey. The court, there-
fore, ordered the amount and term of the alimony
altered, the amounts the defendant owed to the plaintiff
with respect to various marital assets and retirement
accounts altered, and awarded the plaintiff attorney’s
fees. On September 27, 2013, the court issued a correc-
tion to its memorandum of decision; the correction
fixed a calculation error but the court declined to amend
its prior award of attorney’s fees. This appeal followed.
Our review of the file reveals that the defendant did
not contest the plaintiff’s motion to open. The court did
not make a finding of fraud, but opened the judgment
nonetheless based on the agreement of the parties. Nei-
ther party has contested the subject matter jurisdiction
of the court to open the judgment.
This court, however, was concerned about the issue
of subject matter jurisdiction. On July 21, 2015, we
ordered the trial court to articulate whether, in granting
the motion to open ‘‘without a finding of fraud,’’ it found
there was no fraud or was simply not making a finding
regarding fraud. The trial court issued an articulation
on August 5, 2015, stating that at the time the judgment
was opened, it made no finding one way or the other,
but that after hearing the evidence, it found that the
plaintiff had failed to prove fraud by clear and convinc-
ing evidence. Both parties submitted supplemental
briefs in response to the trial court’s articulation; the
plaintiff argued, in essence, that failing to find fraud
was clearly erroneous, and the defendant disagreed.
Thereafter, on October 27, 2015, this court further
requested the parties to submit supplemental briefs on
the question of whether the trial court had subject mat-
ter jurisdiction to open the judgment in the absence of
a finding of fraud. We directed the parties’ attention to
Sousa v. Sousa, 157 Conn. App. 587, 116 A.3d 865, cert.
granted, 317 Conn. 917, 118 A.3d 61 (2015), in which
we held that a property distribution could not be the
subject of a motion to modify. Both parties argued that
the trial court had subject matter jurisdiction to con-
sider the motion to open.
During the pendency of this appeal, this court decided
Forgione v. Forgione, 162 Conn. App. 1, 6–8, A.3d
(2015), which was officially released on December
22, 2015. That case held that in the absence of a finding
or concession of fraud, the trial court lacked subject
matter jurisdiction to open a dissolution judgment, at
least as to the division of the parties’ marital assets,
despite an agreement by the parties to permit the trial
court to do so. Id. We are constrained by Forgione,
whose facts differ in no material respect from those
of this case, and therefore conclude that, despite the
agreement of the parties, the trial court lacked subject
matter jurisdiction to open the judgment without a find-
ing of fraud.
The judgment is reversed and the case is remanded
with direction to dismiss the plaintiff’s motion to open
the judgment for lack of subject matter jurisdiction.
1
The court found that child support terminated for the first child in
January, 2009, and for the second child in November, 2010.