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ERIC P. SOUSA v. DONNA M. SOUSA
(AC 36604)
DiPentima, C. J., and Keller and Flynn, Js.
Argued December 5, 2016—officially released June 13, 2017
(Appeal from Superior Court, judicial district of
Waterbury, Hon. Lloyd Cutsumpas, judge trial referee.)
C. Michael Budlong, with whom was Brandon B.
Fontaine, for the appellant (defendant).
William J. Ward, for the appellee (plaintiff).
Opinion
FLYNN, J. A party seeking to open a judgment beyond
the passage of the four month limitation period from
its rendering provided by General Statutes § 52-212a
under an exception for judgments procured by fraud,
bears the burden of proving fraud in all of its elements
by clear and convincing evidence. At the heart of this
appeal is whether the defendant, Donna M. Sousa,
proved by clear and convincing evidence that the plain-
tiff, Eric P. Sousa, knew that the $32,698.82 he valued
his pension at when the parties were divorced in 2001
was incorrect. The trial court found that the defendant
failed to carry this burden. We affirm that judgment.
We first turn to the procedural history of this case,
which explains how it is again before us. This appeal,
which stems from a judgment modifying a prior judg-
ment dissolving the marriage of the plaintiff and the
defendant has returned to us on remand from our
Supreme Court. In Sousa v. Sousa, 157 Conn. App. 587,
590, 116 A.3d 865 (2015), rev’d, 322 Conn. 757, 143 A.3d
578 (2016), this court held that the trial court, Hon.
Lloyd Cutsumpas, judge trial referee, improperly
denied the defendant’s motion to vacate for lack of
subject matter jurisdiction a judgment rendered by the
trial court, Resha, J., in accordance with a stipulation
by the parties, modifying the provision of the judgment
of dissolution that divided the plaintiff’s pension bene-
fits equally between the parties. Our Supreme Court
reversed that decision and remanded the case to us
with direction to consider the defendant’s remaining
claims on appeal. Sousa v. Sousa, 322 Conn. 757, 790,
143 A.3d 578 (2016).
We next turn to the record, which discloses the fol-
lowing facts, which were either found by Judge Cutsum-
pas or are undisputed for purposes of this appeal, and
procedural history. In November, 2000, after approxi-
mately fourteen years of marriage, the plaintiff filed
a complaint seeking to dissolve his marriage to the
defendant on the ground of irretrievable breakdown.
Both parties were represented by counsel throughout
the uncontested dissolution proceedings. The plaintiff,
who had been employed for fourteen years as a police
officer with the Naugatuck Police Department (depart-
ment), filed a financial affidavit on December 18, 2000,
setting forth his financial assets and expenses. Under
the ‘‘deferred compensation plans’’ category, the plain-
tiff wrote ‘‘borough pension—value undetermined.’’
Soon thereafter, the plaintiff received a document from
the department indicating that, as of April 21, 2001, he
had contributed $32,698.82 to the department’s pension
plan. Consistent with that document, the plaintiff filed a
second financial affidavit on November 21, 2001, stating
that his pension was valued as of April 21, 2001, at
$32,698.82.
The parties were divorced on December 19, 2001.
They executed a separation agreement that provided,
inter alia, that the plaintiff’s pension benefits would
be divided equally between the parties pursuant to a
qualified domestic relations order (QDRO). The separa-
tion agreement further required the plaintiff to pay peri-
odic alimony of $130 per week for five years or until the
defendant began cohabitating with another individual.
On January 3, 2002, in the course of preparing the
QDRO, the defendant’s counsel, Kenneth Potash,
obtained the document listing the plaintiff’s contribu-
tions to the pension, fund as well as a four page docu-
ment entitled ‘‘Appendix A—Pension Fund’’
(appendix), which set forth, inter alia, the pension
plan’s vesting requirements and the various formulae
for calculating department employees’ benefits. Section
10 of the appendix provides that department employees
such as the plaintiff who have been continuously
employed by the department for ten years are entitled,
upon reaching retirement age, to an annual pension
benefit calculated based on their earnings and years of
service.1 Attorney Potash provided the defendant with
a copy of the appendix prior to completing the QDRO,
although she may not have read it. Nevertheless, the
defendant was aware at the time of the divorce that
the plaintiff’s pension was based upon his years of ser-
vice and earnings.
The QDRO was executed and filed with the court on
May 17, 2002. It provided that the defendant shall
receive a 50 percent interest in the ‘‘marital portion’’
of the plaintiff’s pension, with the marital period run-
ning from the date of the marriage on December 20,
1985, to the date of dissolution on December 19, 2001.
In 2003, approximately two years after the divorce,
the plaintiff learned that the defendant had begun
cohabitating with another individual. The plaintiff tele-
phoned the defendant and informed her of his intention
to seek a court order terminating the alimony payments.
Sometime later, after referring to the separation
agreement, the defendant acknowledged that her
cohabitation provided grounds for termination of the
alimony. She informed the plaintiff, however, that she
needed the alimony payments to finish her education
and obtain a teaching degree, higher income, and pen-
sion benefits of her own. Accordingly, the defendant
offered to relinquish her 50 percent interest in the plain-
tiff’s pension in exchange for three additional years of
alimony. The plaintiff agreed and continued to make
weekly alimony payments. Neither party reduced the
agreement to writing at that time or sought a modifica-
tion of the original judgment of dissolution.
Three years later, the plaintiff completed the addi-
tional alimony payments pursuant to his oral agreement
with the defendant. The plaintiff then filed a motion to
modify the judgment of dissolution, seeking to have his
full pension returned to him. As the parties agreed, the
plaintiff’s counsel prepared the motion and accompa-
nying stipulation, which was executed by the parties
and submitted to the court for approval. The parties
appeared before Judge Resha on January 2, 2007. The
plaintiff was represented by counsel, and the defendant
was then a self-represented litigant. Judge Resha asked
the defendant if she had reviewed the terms of the
stipulation with a family relations officer, and the defen-
dant answered in the affirmative. After reading the stip-
ulation into the record, Judge Resha asked the
defendant to explain why she was entering into an
agreement waiving her interest in the plaintiff’s pension.
The defendant admitted that, three years earlier, it was
her idea to enter into an oral agreement with the plaintiff
whereby she would relinquish her rights in the pension
in exchange for additional alimony payments. The
defendant also indicated that she understood that she
could not regain her interest in the pension once she
waived it, and that she was comfortable entering into
the agreement without the benefit of counsel. Judge
Resha found that the stipulation was warranted,
accepted it, and made it a final order of the court. No
appeal was taken.
The plaintiff ultimately retired in October, 2007, after
undergoing spinal fusion surgery in late 2006 to remedy
a work related injury that rendered him unable to per-
form his duties. Thereafter, the plaintiff began receiving
an annual pension benefit of $43,992.80.2
On March 31, 2011—four years after the 2007 modifi-
cation of the dissolution judgment and nearly a decade
after the plaintiff filed his November 21, 2001 financial
affidavit—the defendant filed a motion to open and
vacate the modification, asserting that the plaintiff had
secured the modification through fraud. Specifically,
the defendant claimed that the plaintiff had fraudulently
undervalued his pension in the financial affidavit by
listing only the value of his contribution—$32,698.82.
The defendant further argued that, had the plaintiff
disclosed the full value of his pension, there was a
substantial likelihood that Judge Resha would have
rejected the proposed modification as inequitable. A
few months later, the defendant filed a second motion
to vacate the modification, this time asserting that Judge
Resha lacked subject matter jurisdiction to enter the
modification.
Judge Cutsumpas held an evidentiary hearing on the
motions on January 14, 2014. On February 25, 2014,
Judge Cutsumpas issued a memorandum of decision
denying both motions. In denying the defendant’s first
motion, Judge Cutsumpas found that the defendant
failed to prove the prima facie elements of fraud with
clear and convincing evidence. First, noting that the
defendant failed to present actuarial evidence establish-
ing the value of the plaintiff’s pension at the time he filed
his 2001 financial affidavit, Judge Cutsumpas found that
the defendant failed to prove that the listed amount of
$32,698.82 was inaccurate. Second, Judge Cutsumpas
found that, even if the plaintiff had misstated the value
of his pension, the defendant failed to prove that he
did so knowingly. Finally, Judge Cutsumpas found that
the defendant adduced ‘‘no evidence whatsoever’’ that,
had she known the full value of the plaintiff’s pension,
the result of a new hearing would have been different.3
As to the defendant’s second motion to vacate, Judge
Cutsumpas rejected the argument that Judge Resha
lacked subject matter jurisdiction to modify the judg-
ment of dissolution.
In her appeal to this court, the defendant challenged
Judge Cutsumpas’ denial of her two motions to vacate.
Because we agreed with the defendant that Judge Resha
lacked subject matter jurisdiction to modify the judg-
ment of dissolution and, therefore, that Judge Cutsum-
pas had improperly denied her second motion to vacate,
we did not reach the merits of the defendant’s challenge
to Judge Cutsumpas’ denial of her first motion to vacate,
which asserted fraud. See Sousa v. Sousa, supra, 157
Conn. App. 601. Instead, we vacated the judgment deny-
ing the defendant’s first motion because it had been
rendered without subject matter jurisdiction and, thus,
was void. See id. Our Supreme Court, concluding that
it was not ‘‘entirely obvious’’ that Judge Resha lacked
subject matter jurisdiction to modify the judgment of
dissolution, and that principles of finality of judgments
did not support permitting the defendant to collaterally
attack the modified judgment, reversed our decision
and remanded the case to us with instructions to con-
sider the defendant’s remaining claim, which challenges
Judge Cutsumpas’ denial of her first motion to vacate
on the basis of fraud. See Sousa v. Sousa, supra, 322
Conn. 790. The parties, pursuant to this court’s instruc-
tion, filed supplemental briefs addressing the remaining
issue of fraud in light of the Supreme Court’s decision.
The defendant claims that Judge Cutsumpas improp-
erly found that she failed to prove by clear and convinc-
ing evidence that the plaintiff obtained her stipulation,
and thus the 2007 modification, by fraudulently under-
valuing his pension in his 2001 financial affidavit. The
defendant has not been consistent throughout these
proceedings regarding the theory underlying her claim
of fraud. First, the defendant argues in her appellate
briefs that undisputed evidence adduced at the January
14, 2014 evidentiary hearing established that the plain-
tiff committed fraud by misrepresentation—that is, in
2001 he listed the value of his contribution to the pen-
sion fund despite knowing that he was entitled to bene-
fits upon retirement that were far more substantial than
his mere contribution. Second, the defendant contends
that the plaintiff committed fraud by nondisclosure in
that he violated his ‘‘full and frank disclosure’’ obliga-
tions by failing to disclose the full value of his pension
in his 2001 affidavit or at any time prior to the 2007
modification. Finally, the defendant suggested during
oral argument before this court that the plaintiff’s con-
duct amounted to ‘‘fraud on the court.’’ We find none
of these arguments persuasive.
We first set forth our standard of review and the legal
principles that are germane to our discussion. ‘‘Our
review of a court’s denial of a motion to open [based
on fraud] is well settled. 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 discretion, this court must make every rea-
sonable 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.)
Weinstein v. Weinstein, 275 Conn. 671, 685, 882 A.2d
53 (2005).
‘‘Pursuant to General Statutes § 52-212a, a civil judg-
ment 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 . . . . An exception
to the four month limitation applies, however, if a party
can show, inter alia, that the judgment was obtained
by fraud.’’ (Internal quotation marks omitted.) Zilka v.
Zilka, 159 Conn. App. 167, 174, 123 A.3d 439 (2015).
‘‘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 stipula-
tion, and thus the judgment, was obtained by fraud.
. . . A court’s determinations as to the elements of
fraud are findings of fact that we will not disturb unless
they are clearly erroneous. . . .
‘‘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 unreason-
able delay by the injured party after the fraud was
discovered; (2) there must be clear proof of the fraud;
and (3) there is a [reasonable probability] that the result
of the new trial will be different. . . .
‘‘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.’’
(Citation omitted; internal quotation marks omitted.)
Weinstein v. Weinstein, supra, 275 Conn. 685–86.
‘‘[T]he 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 under-
mine. . . . That goal requires, in turn, that reasonable
settlements have been knowingly agreed upon. . . .
Our support of that goal will be effective only if we
instill confidence in marital litigants that we require,
as a concomitant of the settlement process, such full
and frank disclosure from both sides, for then they will
be more willing to [forgo] their combat and to settle
their dispute privately, secure in the knowledge that
they have all the essential information. . . . This prin-
ciple will, in turn, decrease the need for extensive dis-
covery, and will thereby help to preserve a greater
measure of the often sorely tried marital assets for
the support of all of the family members.’’ (Citations
omitted; internal quotation marks omitted.) Billington
v. Billington, 220 Conn. 212, 221–22, 595 A.2d 1377
(1991).
I
We begin with the defendant’s claim that the plaintiff
fraudulently misrepresented the value of his pension in
his 2001 financial affidavit. The defendant contends that
Judge Cutsumpas erroneously concluded that she failed
to prove with clear and convincing evidence that the
plaintiff valued his pension at $32,698.82 with the
knowledge that he was entitled to benefits far exceeding
that amount. We disagree. We conclude that Judge Cut-
sumpas’ finding that the defendant failed to present
clear and convincing evidence that the plaintiff knew
the disclosed value was of his pension inaccurate was
not clearly erroneous. Moreover, we conclude that
Judge Cutsumpas did not clearly err in finding that the
defendant failed to proffer clear proof that, had the
plaintiff disclosed the ‘‘full’’ value of his pension, the
outcome of a new proceeding would have been dif-
ferent.4
As a preliminary matter, we note that Judge Cutsum-
pas’ conclusions with respect to the elements of fraud
constitute findings of fact; see Weinstein v. Weinstein,
supra, 275 Conn. 685; to which we must accord substan-
tial deference. ‘‘A finding of fact is clearly erroneous
when there is no evidence in the record to support it
. . . or when although there is evidence to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed.’’ (Internal quotation marks omitted.) State
v. Michael J., 274 Conn. 321, 346, 875 A.2d 510 (2005).
We determine whether factual findings are clearly erro-
neous ‘‘in light of the evidence in the whole record.
. . . [G]reat weight is given to the judgment of the trial
court because of [the court’s] opportunity to observe
the parties and the evidence. . . . We do not examine
the record to determine whether the [court] could have
reached a conclusion other than the one reached. . . .
[O]n review by this court every reasonable presumption
is made in favor of the trial court’s ruling.’’ (Internal
quotation marks omitted.) In re Jeisean M., 270 Conn.
382, 397, 852 A.2d 643 (2004).
We begin with Judge Cutsumpas’ finding that the
defendant failed to prove with clear and convincing
evidence that the plaintiff knew that the amount he
listed in his 2001 financial affidavit was inaccurate. Con-
trary to the defendant’s claim on appeal, this finding
is amply support by the record and, thus, not clearly
erroneous. The plaintiff’s financial affidavit, filed in con-
nection with the dissolution proceedings on November
21, 2001, stated that his pension was worth $32,698.82
as of April 21, 2001. That value reflected the total
amount that the plaintiff had contributed from his salary
to the pension fund until that time. Although, as the
defendant argues, the plaintiff was entitled when he
filed his affidavit to an annual pension benefit calcu-
lated based upon his salary and years of service under
§ 10 of the appendix, rather than to a mere refund of
his contribution, the plaintiff repeatedly testified that,
in his understanding, $32,698.82 reflected the benefit
he would have been entitled to had he retired on the
date he filed the affidavit. Additionally, although the
plaintiff admitted that he knew when filing his affidavit
that his benefits were ‘‘vested,’’5 there was no evidence
that he understood the significance of the fact that
his benefits were vested. To the contrary, the plaintiff
testified that the value of his contribution to the fund
was ‘‘all [he] was entitled to’’ and that, although his
benefits were vested, he ‘‘did not know’’ whether that
entitled him to more than his contribution. In light of
this evidence, Judge Cutsumpas reasonably could have
found that the plaintiff was unaware that his contribu-
tion amount did not reflect an accurate valuation of his
pension, and we are not left with a definite and firm
conviction that a mistake has been made. Therefore,
regardless of whether the plaintiff incorrectly listed his
contribution amount, rather than the actuarial value as
calculated under § 10 of the appendix, the defendant’s
fraud claim fails because she failed to demonstrate that
the plaintiff did so knowingly. See, e.g., Terry v. Terry,
102 Conn. App. 215, 227, 925 A.2d 375, cert. denied, 284
Conn. 911, 931 A.2d 934 (2007).
The defendant relies on Weinstein v. Weinstein,
supra, 275 Conn. 685, for the proposition that ‘‘[m]isrep-
resentations of this magnitude cannot be attributed to
mistake or miscalculation,’’ but, rather, overwhelmingly
evince the plaintiff’s knowledge of the misrepresenta-
tion and intent to deceive. In Weinstein, the defendant
stated in his financial affidavit that his interest in his
company was worth $40,000 and, two months later,
rejected a $2.5 million offer to purchase the company—
which would have netted him $500,000 for his interest—
because he thought it was too low. Weinstein v.
Weinstein, supra, 688. Our Supreme Court held that
the trial court clearly erred in finding that the plaintiff
failed to prove that the defendant had knowingly mis-
represented the value of his interest, reasoning that the
$2.5 million offer served as an ‘‘independent appraisal’’
of the company’s worth, and that the ‘‘huge disparity’’
between that value and the defendant’s valuation ‘‘com-
pel[led] the conclusion that the defendant knew the
company and his interest therein were worth more dur-
ing the dissolution trial.’’ (Emphasis in original.) Id., 693.
We find the defendant’s argument and reliance on
Weinstein unpersuasive. Unlike in Weinstein, we can-
not assess the ‘‘disparity’’ of the alleged misrepresenta-
tion because, as Judge Cutsumpas observed, the
defendant failed to present actuarial evidence establish-
ing the value of the plaintiff’s pension at the time he
filed his financial affidavit in November, 2001. It was
the defendant’s burden, as the party asserting fraud, to
prove the value of the pension by clear and convincing
evidence. ‘‘The task of properly valuing pension benefits
is complex because such benefits may be defeasible by
the death of the employee [spouse] before retirement
and the amount of benefits ultimately received depends
upon a number of factors that remain uncertain until
actual retirement.’’ Krafick v. Krafick, 234 Conn. 783,
799, 663 A.2d 365 (1995). ‘‘It is true that the exact amount
of the [pension] benefits to be received often will
depend upon whether the employee [spouse] survives
his retirement age, how long he lives after retirement
and what his compensation level is during his remaining
years of service. But these contingencies are suscepti-
ble to reasonably accurate quantification. . . . The
present value of a pension benefit may be arrived at
by using generally actuarial principles to discount for
mortality, interest and the probability of the employee
remaining with the employer until retirement age.’’
(Citation omitted.) Thompson v. Thompson, 183 Conn.
96, 100–101, 438 A.2d 839 (1981).
When the plaintiff filed his affidavit in 2001, he was
employed by the department and in his mid-thirties,
several years short of the retirement age. Thus, the value
of the plaintiff’s pension under § 10 of the appendix
depended on a number of uncertainties—whether he
survived retirement age, his overall life expectancy, and
his base salary during his last years of service—and the
defendant failed to account for these uncertainties with
actuarial evidence. Accordingly, there is no concrete
basis for determining the pension’s value in 2001, and,
thus, the disparity between that value and the listed
value of $32,698.82. Furthermore, although the defen-
dant emphasizes in her appellate briefs that the plaintiff
has received an annual pension benefit of $43,992.80
since retiring in October, 2007, the plaintiff’s current
benefits are no reliable indication of the pension’s value
in 2001 when the plaintiff filed the financial affidavit.
The plaintiff’s current benefits were determined under
§ 9 of the appendix, under which he became eligible as
a result of remedial work related spinal fusion surgery
he underwent in late 2006 that rendered him unable to
perform his duties. At the time of his 2001 affidavit,
however, the plaintiff qualified only under § 10, which
calculates annual benefits under a different formula
than § 9. See footnotes 1 and 2 of this opinion. Moreover,
the plaintiff’s current benefits were determined based
upon a base salary that presumably increased from
between 2001 and his 2007 retirement, as well as addi-
tional, postcoverture contributions that the plaintiff had
made to the pension fund since the 2001 divorce. Put
simply, although the defendant contests the accuracy
of the value listed in the plaintiff’s financial affidavit,
she has failed to present evidence establishing what
the correct value was. Accordingly, her argument that
the plaintiff’s knowledge of the misrepresentation is
inferable from the ‘‘magnitude’’ of the difference
between the disclosed value of $32,698.82 and the actual
value of the pension lacks merit.
Although the defendant’s failure to establish the
plaintiff’s knowledge of the alleged misrepresentation
is dispositive of the defendant’s fraud claim, we further
conclude that Judge Cutsumpas did not clearly err in
finding that the defendant failed to demonstrate a sub-
stantial likelihood that, had the plaintiff disclosed the
full value of his pension in his 2001 affidavit, as the
defendant claims, the result of a new proceeding would
be different. See Weinstein v. Weinstein, supra, 275
Conn. 671; see also A. Rutkin et al., 8A Connecticut
Practice Series: Family Law and Practice with Forms
(3d Ed. 2010) § 52:7, p. 318 (‘‘[o]ne must . . . be able
to prove that the outcome of a new trial, untainted by
the fraud, is likely to be different’’). We begin by noting
that the January 2, 2007 hearing, at which Judge Resha
accepted the parties’ stipulated modification of the pen-
sion award in the original judgment of dissolution,
would never have occurred in the first place had the
defendant not offered to relinquish her rights in the
plaintiff’s pension in exchange for additional alimony
payments. Thus, in analyzing whether the defendant
proved that the alleged fraud tainted the outcome of
the proceeding, our inquiry focuses on the whether the
defendant’s decision to enter into the agreement with
the plaintiff was impacted by the purported misrepre-
sentation, and whether a ‘‘full’’ disclosure of the value
of the pension would have prompted Judge Resha to
reject the modification as inequitable.
Our review of the record discloses no evidence sug-
gesting that the plaintiff’s disclosure of $32,698.82,
rather than some greater amount, in his financial affida-
vit impacted the defendant’s decision to exchange her
interest in the plaintiff’s pension for additional alimony.
Significantly, we can merely speculate about the proba-
ble impact that a ‘‘full’’ disclosure would have had on
the defendant’s thinking because, as previously
explained, the defendant has failed to establish the actu-
arial value of the pension. Additionally, the defendant’s
testimony reflects that her determination that it was
worthwhile to give up her pension interest was based
not on the value disclosed in the plaintiff’s financial
affidavit, but on her need for the additional alimony
payments in order to complete her degree and to obtain
employment, higher income, and pension benefits of
her own. Finally, the defendant conceded that Attorney
Potash provided her with the appendix containing the
formulae for calculating pension benefits before she
initiated the exchange,6 and that, at the time of the
divorce, she believed, the plaintiff’s pension was based
upon his years of service and earnings. Thus, even if
we were to assume that the plaintiff fraudulently listed
only the value of his pension contribution in the finan-
cial affidavit, the defendant has failed to present clear
and convincing evidence that the fraud impacted her
decision to enter into the stipulation.
Nor does the record suggest that there is a substantial
probability that Judge Resha would have rejected the
modification had he known that the plaintiff inaccu-
rately valued his pension in his 2001 financial affidavit.
At no point during the modification hearing did the
defendant mention the plaintiff’s financial affidavit or
suggest that she had relied on the representations
therein. During her colloquy with Judge Resha, the
defendant stated that the exchange was her idea in
order to continue receiving alimony payments despite
her cohabitation, that she understood that the modifica-
tion of the judgment of dissolution could not be undone,
and that she was comfortable entering into the
agreement without the benefit of an attorney. Critically,
moreover, the defendant admitted that, by that time,
the plaintiff had completed the three additional years
of alimony and, thus, that she had already received the
benefit of her bargain. On the basis of this record, we
conclude that Judge Cutsumpas did not clearly err in
finding that the defendant failed to demonstrate a sub-
stantial likelihood that, but for the plaintiff’s purported
fraudulent conduct, the result of a new modification
hearing would have been different.
II
The defendant next claims that Judge Cutsumpas
clearly erred in finding that she failed to prove with
clear and convincing evidence that the plaintiff commit-
ted fraud by nondisclosure. Specifically, the defendant
argues that the plaintiff violated his full and frank disclo-
sure obligations by listing only the value of his contribu-
tion in his financial affidavit. The defendant further
contends that, even if the plaintiff genuinely believed
that his pension was worth $32,698.82 in 2001, he com-
mitted fraud by nondisclosure by failing to file a cor-
rected or updated affidavit prior to the 2007
modification.7 We are not persuaded.
‘‘Fraud by nondisclosure, which expands on the first
three of [the] four elements [of fraud], involves the
failure to make a full and fair disclosure of known
facts connected with a matter about which a party has
assumed to speak, under circumstances in which there
is a duty to speak. . . . A lack of full and fair disclosure
of such facts must be accompanied by an intent or
expectation that the other party will make or will con-
tinue in a mistake, in order to induce that other party
to act to her detriment. . . . In a marital dissolution
case, the requirement of a duty to speak is imposed by
Practice Book § [25-30], requiring the exchange and
filing of financial affidavits . . . and by the nature of
the marital relationship.’’ (Citations omitted.) Gelinas
v. Gelinas, 10 Conn. App. 167, 173, 522 A.2d 295, cert.
denied, 204 Conn. 802, 525 A.2d 965 (1987).
We first reject the defendant’s argument that the
plaintiff committed fraud by nondisclosure by disclos-
ing only the value of his contribution in his financial
affidavit. Fraud by nondisclosure involves the failure
to make a full and fair disclosure of known facts and,
as explained in part I of this opinion, Judge Cutsumpas
properly found that the defendant failed to present clear
and convincing evidence that the plaintiff knew he was
entitled to more than his contribution amount. Thus, the
defendant failed to prove that the plaintiff ‘‘deliberately
conceal[ed] or purposely mislead’’ her regarding the
value of his pension. Pospisil v. Pospisil, 59 Conn. App.
446, 451, 757 A.2d 665, cert. denied, 254 Conn. 940, 761
A.2d 762 (2000); see also 8A A. Rutkin et al., supra,
§ 52:7, p. 320 (‘‘[g]enerally, one has the obligation to
disclose only ‘known facts’ ’’).
In any case, the record reveals that the defendant
received a full and frank disclosure. Attorney Potash,
and thus the defendant, received the appendix and doc-
ument listing the plaintiff’s contributions in early 2002,
before the defendant proposed to exchange her pension
rights for additional alimony. See footnote 6 of this
opinion. Additionally, the appendix is only four pages
long and spells out, in clear, concise, and explicit lan-
guage, the requirements for obtaining vested status and
the various formulae for calculating the present value
of department employees’ pension benefits. Therefore,
unlike the cases holding that the disclosure of assets
through vague references or mass documentation does
not constitute full and frank disclosure; see Weinstein
v. Weinstein, supra, 275 Conn. 690 n.12; Jackson v.
Jackson, 2 Conn. App. 179, 191, 478 A.2d 1026, cert.
denied, 194 Conn. 805, 482 A.2d 710 (1984); the defen-
dant had been provided, through her attorney, with
clear notice of the relevant attributes of the plaintiff’s
pension, including its value and vesting status, all the
information she needed to determine years later
whether to relinquish her 50 percent interest in the
pension in exchange for three additional years of ali-
mony payments.8
Finally, citing Weinstein v. Weinstein, supra, 275
Conn. 671, the defendant asserts that the plaintiff’s duty
to disclose the pertinent details of his pension extended
until Judge Resha entered the modification on January
2, 2007, and the plaintiff committed fraud by failing to
file an updated or corrected financial affidavit prior to
that time. Our Supreme Court observed in Weinstein
that, because the value of parties’ assets must be deter-
mined at the time of the dissolution, ‘‘the duty to update
pertinent discovery responses and to disclose facts rele-
vant to that determination necessarily must extend until
the judgment is rendered. . . . Thus . . . the duty to
disclose continued until the judgment of dissolution
was final.’’ (Citations omitted; internal quotation marks
omitted.) Id., 697–98. The court further observed that,
where a motion for reconsideration is filed, the finality
of the judgment is suspended until the motion is acted
upon. Id., 699–700. Finally, the court held that, ‘‘[i]n
imploring the dissolution court [at the hearing on the
motion for reconsideration] to reduce his financial obli-
gations to the plaintiff, the defendant necessarily
reignited his duty to disclose fully and frankly any new
financial information because such information was
directly pertinent and material to the very issue the
defendant was asking the court to reconsider.’’ (Empha-
sis omitted.) Id., 701.
We disagree that the plaintiff committed fraud by
failing to file an updated financial affidavit prior to the
2007 modification. The judgment of dissolution became
final in 2001, cutting off the plaintiff’s obligation to
continue to disclose financial information pertinent to
the dissolution proceedings. The defendant never asked
the plaintiff to file an updated financial affidavit prior
to entering into the oral agreement or at any time lead-
ing up to the modification. Furthermore, unlike in
Weinstein, the plaintiff did not ‘‘reignite’’ his duty to
disclose additional financial information because, as
the defendant readily admitted, she was the one who
proposed the exchange of her pension rights for addi-
tional alimony because she needed the alimony to con-
tinue her education and to obtain better employment
and benefits. Although the plaintiff prepared the stipula-
tion and filed the motion to modify the judgment of
dissolution, he took those measures only after complet-
ing his three additional years of alimony payments in
accordance with his agreement with the defendant. The
defendant initiated this deal with the plaintiff, not the
other way around. Accordingly, we conclude that, under
these circumstances, the plaintiff was not obligated to
make additional financial disclosures prior to the modi-
fication.
III
Finally, the defendant stated during oral argument
before this court that her fraud claim is in the nature
of ‘‘fraud on the court.’’ Although the defendant does
not utilize that term in her briefs, she does cite to Bill-
ington v. Billington, supra, 220 Conn. 222, which dis-
cusses the doctrine. In that case, our Supreme Court
limited claims of fraud on the court in the marital litiga-
tion context ‘‘to situations where both parties join to
conceal material information from the court.’’ (Empha-
sis added.) Id., 225. In the present case, the record
discloses no evidence that both parties joined to con-
ceal information from Judge Resha. Indeed, any such
claim would be antithetical to the defendant’s central
claim that she was induced into entering into the modifi-
cation agreement by the plaintiff’s fraud. Accordingly,
the doctrine of fraud on the court is wholly inapposite.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Specifically, § 10 of the appendix provides in relevant part: ‘‘Each
employee who terminates his employment prior to normal retirement shall
acquire a vested interest in his/her pension benefits provided that said
employee has at least ten (10) continuous years of employment as a full-time
employee with the Borough during which period said employee contributed
toward the pension plan. Said employee shall be paid a pension benefit
equal to two percent (2%) of his final three (3) years average base salary
multiplied by his years of credited service. Said pension benefits shall begin
when the employee reaches the retirement age referred to in the agreement
and said benefit shall be limited to a maximum of sixty percent (60%) of
the final three (3) year average base salary.’’
2
As a result of his disability, the plaintiff’s pension benefits were calculated
under § 9 of the appendix, which provides that employees with at least ten
years of service who become unable to perform their duties, and who obtain
certification from three physicians, ‘‘may be retired on a monthly allotment
equal to one-half (1/2) of the average monthly pay received by him during
the three (3) years immediately preceding the time of his retirement.’’
3
Judge Cutsumpas also noted that ‘‘some of the defendant’s testimony’’
at the January 14, 2014 evidentiary hearing ‘‘was conflicting and lacked
credibility,’’ but he did not specify which portions of the defendant’s testi-
mony lacked credibility. Additionally, after noting that the doctrine of laches
precludes a finding of fraud, Judge Cutsumpas stated—in passing and with-
out making any explicit factual finding—that, ‘‘while laches was not specifi-
cally pleaded, it is worthy of note that approximately four years passed
after the parties entered into the stipulation which the defendant now claims
was the product of fraud.’’ Neither party attempted to clarify these vague
statements by filing a motion for articulation.
4
As previously stated, Judge Cutsumpas further found that the defendant
failed as a threshold matter to prove that the $32,698.82 value listed in the
plaintiff’s financial affidavit was inaccurate. Because the defendant failed
to demonstrate other necessary elements of her fraud claim, we need not
address whether this finding was clearly erroneous.
5
‘‘Vested’’ pension benefits are ‘‘pension interests in which an employee
has an irrevocable . . . right, in the future, to receive his or her account
balance (under a defined contribution plan), or his or her accrued benefit
(under a defined benefit plan), regardless of whether the [employment]
relationship continues.’’ (Internal quotation marks omitted.) Krafick v. Kraf-
ick, 234 Conn. 783, 788 n.12, 663 A.2d 365 (1995).
6
We also note Attorney Potash’s testimony that he received the appendix
on January 3, 2002. This was nine years before the defendant’s motion
to open. Receipt of this information by Attorney Potash is the functional
equivalent of receipt by the defendant. ‘‘[N]otice to, or knowledge of, an
agent, while acting within the scope of his authority and in reference to a
matter over which his authority extends, is notice to, or knowledge of, the
principal. . . . An attorney is the client’s agent and his knowledge is
imputed to the client.’’ (Citations omitted; internal quotation marks omitted.)
National Groups, LLC v. Nardi, 145 Conn. App. 189, 201, 75 A.3d 68 (2013).
7
Although the defendant argues that the plaintiff’s fraudulent nondisclo-
sure ‘‘presents an example of continuing fraud’’ that began in 2001 at the
time of the dissolution and extended until the 2007 modification, she clarified
at oral argument before this court that she is not seeking to open the
judgment of dissolution on the basis of fraud, only the modification.
8
We are not suggesting that the defendant’s fraud claim fails because of
a failure on her part to exercise due diligence. Our Supreme Court eliminated
the due diligence requirement in fraud actions, reasoning that ‘‘the require-
ment of diligence in discovering fraud is inconsistent with the requirement
of full disclosure because it imposes on the innocent injured party the duty
to discover that which the wrongdoer already is legally obligated to disclose.’’
Billington v. Billington, supra, 220 Conn. 220. Our analysis turns not on
the defendant’s failure to discover the information about the plaintiff’s pen-
sion, but on the fact that she had received an adequate disclosure years
prior to her initiation of her proposal to relinquish her rights in the pension
in exchange for three additional years of alimony, which might have other-
wise been ordered terminated.