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ELANA GERSHON v. RONALD BACK
(AC 42778)
Lavine, Bright and Beach, Js.*
Syllabus
The plaintiff, whose marriage to the defendant previously had been dissolved
pursuant to a foreign judgment of dissolution, appealed to this court
from the judgment of the trial court dismissing her motion to open the
judgment for lack of subject matter jurisdiction. Prior to their marriage
in New York, the parties entered into a prenuptial agreement, which the
New York dissolution court determined was valid. During the dissolution
proceedings, the parties entered into a stipulation that provided, inter
alia, that it superseded the prenuptial agreement, that it was incorporated
but not merged into the dissolution judgment and that it was to be
governed by New York law. Following the dissolution of their marriage,
the parties both moved to Connecticut, and the plaintiff registered the
New York dissolution judgment in Connecticut pursuant to statute
(§ 46b-71). In her motion to open, the plaintiff sought to have the trial
court open the dissolution judgment, vacate the stipulation and order
a new trial, claiming that the judgment was obtained through the defen-
dant’s fraudulent conduct in that he made material misrepresentations
and failed to disclose certain assets in his sworn financial statement at
the time the stipulation was negotiated. Following a hearing, the trial
court, applying New York law, dismissed the plaintiff’s motion to open,
concluding that to challenge the validity of the stipulation, which was
incorporated but not merged into the dissolution judgment, the plaintiff
was required to bring a plenary action. Held that, although the trial
court improperly dismissed the plaintiff’s motion to open the dissolution
judgment for lack of subject matter jurisdiction because that court had
jurisdiction to consider the motion pursuant to the applicable statutes
(§§ 46b-1 and 46b-71 (b)), this court concluded that, contrary to the
plaintiff’s contention, the trial court properly determined that the plain-
tiff was required to bring a plenary action to vacate the stipulation, as
the New York rule requiring a party to challenge a separation agreement
that is not merged into the dissolution judgment through a plenary action
is substantive and, as such, § 46b-71 and the stipulation required the
trial court to apply that rule to the motion to open; accordingly, the
trial court should have denied the motion to open rather than dismissed
it, and the case was remanded with direction to render judgment denying
the plaintiff’s motion to open.
Argued May 20—officially released November 10, 2020
Procedural History
Motion by the plaintiff to open a foreign judgment
of dissolution, brought to the Superior Court in the
judicial district of Stamford-Norwalk, where the court,
Hon. Michael E. Shay, judge trial referee, dismissed
the plaintiff’s motion, and the plaintiff appealed to this
court. Improper form of judgment; judgment directed.
Alexander J. Cuda, for the appellant (plaintiff).
Joseph T. O’Connor, for the appellee (defendant).
Opinion
LAVINE, J. The present appeal concerns the judgment
rendered by the trial court when it dismissed the motion
to open the 2011 New York judgment of marital dissolu-
tion (motion to open) filed by the plaintiff, Elana Gers-
hon, some years after she registered the judgment in
Connecticut. The plaintiff claims on appeal that the trial
court improperly dismissed her motion to open for lack
of subject matter jurisdiction by applying New York
procedural rules, rather than Connecticut procedural
rules, when it dismissed the motion.1 We conclude that
the court properly determined that New York law gov-
erned the plaintiff’s rights with respect to the parties’
stipulation, but we agree with the plaintiff that the court
improperly dismissed the motion to open for lack of
subject matter jurisdiction. The form of the judgment
is improper. We, therefore, reverse the judgment of
dismissal and remand the case with direction to render
judgment denying the motion to open.
The record discloses the following contentious and
protracted litigation history between the plaintiff and
her former husband, the defendant, Ronald Back.2 In
August, 1997,3 prior to their marriage, the parties
entered into a prenuptial agreement.4 The plaintiff was
a school psychologist, and the defendant was a busi-
nessman with a substantial interest in a family business.
The parties married on August 16, 1997, resided in New
York state, and had two children together. As the disso-
lution judgment, reciting the parties’ stipulation, states:
‘‘[c]ertain unhappy and irreconcilable differences
[arose] between the parties, as a result of which they
. . . separated and have been living apart from each
other since in or about February 6, 2009 . . . .’’ On or
about the date of separation, the plaintiff, then known
as Elana Back, commenced an action for divorce in the
New York Supreme Court, county of Westchester (New
York court). During the course of the divorce proceed-
ings, the parties engaged in extensive litigation, discov-
ery, and negotiations regarding the prenuptial agree-
ment, which the plaintiff sought to invalidate. The New
York court determined that the prenuptial agreement
was valid.5 On April 11, 2011, the parties settled, for the
time being, their dispute over the division of marital
property. The parties signed a stipulation that provided
in part that it superseded ‘‘the [p]renuptial [a]greement,
[which] shall be of no further force or effect upon the
effective date of this [stipulation].’’ The stipulation fur-
ther provided, among other things, that it was to be
incorporated by reference, but not merged, in the judg-
ment of dissolution and that it ‘‘may be enforced inde-
pendently of such decree or judgment [of dissolution].’’6
The stipulation also provided that ‘‘[a]ll matters affect-
ing the execution, interpretation, performance and
enforcement of this [a]greement and the rights of the
parties hereto shall be governed by the laws of the
[s]tate of New York.’’7 (Emphasis added.) Thereafter,
the New York court rendered a judgment of dissolution
of the parties’ marriage on May 11, 2011.
The plaintiff remarried three days following her
divorce from the defendant and moved with the parties’
children to Greenwich. The defendant eventually
moved to Connecticut, as well. The plaintiff registered
the dissolution judgment in the Superior Court in the
judicial district of Stamford-Norwalk on October 27,
2014, pursuant to General Statutes § 46b-71 (a). On
November 24, 2014, the plaintiff filed a motion to modify
child support (motion to modify) as permitted by the
dissolution judgment.8 The parties again engaged in
extensive discovery with respect to the defendant’s
finances. On April 26, 2017, pursuant to New York
Domestic Relations Law,9 the trial court granted the
plaintiff’s motion to modify, increased the defendant’s
monthly child support obligation and awarded the plain-
tiff attorney’s fees.10 In a separate order, the court
awarded the defendant a credit in light of his having
paid a portion of the college room and board expenses
of the parties’ older child.
On September 5, 2018, the plaintiff filed the motion
to open that is the subject of the present appeal. In that
motion, the plaintiff sought to have the court open the
dissolution judgment, vacate the stipulation, and order
a new trial,11 ‘‘as the judgment was obtained through
the fraudulent conduct of the [defendant] and there is
a reasonable probability that the result of the settlement
would have been different had the defendant not made
material misrepresentations of fact to the court and to
the plaintiff in his sworn financial statement provided
at the time of settlement.’’12 (Emphasis added.) In con-
nection with her motion to open, the plaintiff sought
postjudgment discovery of the defendant’s financial
records. The defendant opposed both the plaintiff’s
motion to open and her request for postjudgment dis-
covery. The parties filed numerous motions, objections,
and memoranda with respect to the motion to open
and request for discovery.
On October 26, 2018, counsel for the parties appeared
before the court at which time the court ruled on several
of the parties’ outstanding motions and objections not
at issue here. At the time, the court stated that, in
Connecticut, postjudgment discovery generally is not
permitted in the absence of a demonstration by the
plaintiff that she has more than a ‘‘mere suspicion’’ of
fraud on the part of the defendant in his conduct relating
to the execution of the stipulation. The court specifi-
cally referenced Oneglia v. Oneglia, 14 Conn. App. 267,
269–70, 540 A.2d 713 (1988).13 To determine whether
the plaintiff could demonstrate more than a mere suspi-
cion of the defendant’s alleged fraud,14 the court ordered
the parties to appear for an Oneglia hearing on Decem-
ber 4, 2018. Furthermore, because the parties had
agreed that the stipulation was to be governed by New
York law, the court ordered counsel for the parties to
file simultaneous memoranda of law two weeks prior
to the start of the Oneglia hearing to address ‘‘the stan-
dard in New York for opening a matrimonial judgment.
And . . . under all the facts and circumstances of this
case is there either res judicata or was there accord
and satisfaction, or whatever that would militate against
this particular motion, in other words, would support
a motion to dismiss [the motion to open]. That’s what
I’m looking for.’’15
The court conducted an Oneglia hearing on Decem-
ber 4, 5, and 6, 2018. Both parties testified at the hearing,
as well as the plaintiff’s forensic accountant, Lee Sand-
erson. On December 21, 2018, counsel for the parties
appeared for final arguments. Counsel for the plaintiff
argued that the evidence demonstrated that the defen-
dant had failed to disclose significant assets at the time
the stipulation was negotiated. Counsel for the defen-
dant argued that eight years after the plaintiff had
received the benefits of the stipulation, she was pre-
cluded from relitigating the parties’ divorce on the
grounds of collateral estoppel, ratification, and lack of
evidence to sustain the allegation of fraud. Counsel for
the defendant also argued that the plaintiff could not
challenge the stipulation by way of a motion to open
the judgment; rather, she had to file a plenary action
sounding in contract; but that the statute of limitations
had run on such an action. Counsel further argued that,
given the validity of the prenuptial agreement, the plain-
tiff would have received far less under the prenuptial
agreement than she received under the stipulation and,
therefore, she could not argue credibly that she had
sustained any damages.16
At the conclusion of the arguments, the court
explained that, under Oneglia, if the evidence demon-
strated that the plaintiff had more than a mere suspicion
of fraud, the discovery process would begin, and there-
after the court would hold a hearing to determine
whether the dissolution judgment should be opened. If
the court found that the plaintiff had no more than a
mere suspicion of fraud, there would be no discovery
regarding the defendant’s finances. Without additional
discovery, the plaintiff would have to decide whether
to pursue her motion to open with the evidence she
had presently.
On January 31, 2019, the court issued a memorandum
of decision regarding the Oneglia hearing, the outcome
of which determined whether the plaintiff could con-
duct discovery of the defendant’s finances. As a prelimi-
nary matter, the court stated that two facts were critical
to its decision, to wit: (1) the stipulation was incorpo-
rated in, but not merged into, the dissolution judgment
and (2) the stipulation provided that all matters related
to it were to be governed by New York law. The court
recounted the relevant facts and procedural history of
the case and that it previously had ruled on the plaintiff’s
motion to modify and the defendant’s motion for child
support credit. The court then stated that the present
matter came before the court by way of the plaintiff’s
motion to open.
As it did at the October 26, 2018 proceeding, the court
stated that Connecticut’s rules of practice do not permit
postjudgment discovery unless the plaintiff can show
that there is more than a ‘‘mere suspicion’’ of fraud on
the part of the defendant in his conduct related to the
execution of the stipulation. See Oneglia v. Oneglia,
supra, 14 Conn. App. 269–70. The court noted that it
had conducted the Oneglia hearing and argument over
four days in December, 2018, and recounted its order
that, because ‘‘the parties had agreed that New York
law would be controlling, prior to the hearing [it had]
ordered each counsel to submit a memorandum of law
addressed to the holdings of New York law regarding
the opening of a matrimonial judgment based upon an
unmerged stipulation, and whether or not there were
facts in this case that would support a motion to dis-
miss the motion to open.’’ (Emphasis added.) Having
reviewed the memoranda of law submitted by counsel
and the relevant New York law, the court concluded that
the parties had arrived at their choice of law decision
without fraud or duress, with the advice of counsel,
and that their choice of New York law should be given
effect, citing Elgar v. Elgar, 238 Conn. 839, 848, 679
A.2d 937 (1996) (court should give effect to express
choice of law by parties to contract provided it was
made in good faith). The court also concluded that an
established body of New York law relating to postjudg-
ment discovery in matrimonial cases was controlling
and not Oneglia.
The court cited the New York law it had considered
in reaching its decision, stating that ‘‘[t]here is a clear
societal benefit in reliance upon the finality of judg-
ments, particularly in family relations matters, where
the judgment is based upon an agreement of the parties.
It is the general policy of the courts in New York to
uphold settled domestic relations judgments. Rainbow
v. Swisher, 72 N.Y.2d 106, 110–11, 527 N.E.2d 258, 531
N.Y.S.2d 775 (1988). To that end, the courts have drawn
a distinction between actions to overturn such judg-
ments as opposed to enforcing their provisions. It is
well settled that a party to a stipulation that is incorpo-
rated, but not merged, into a judgment of divorce can-
not challenge the enforceability of the stipulation by
way of motion but, rather, must do so by commence-
ment of a plenary action. Conversely, a party seeking
to enforce the terms of such a stipulation may do so
either by motion to enforce the judgment or by a plenary
action. Anderson v. Anderson, 153 App. Div. 3d 1627,
1628, 61 N.Y.S.3d 405 (2017) . . . . In fact, it is error
for a court to entertain such a motion on its merits.
Spataro v. Spataro, 268 App. Div. 2d 467, 468, 702
N.Y.S.2d 342 (2000).’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) In light of
the law and under the circumstances, the court stated
that it found ‘‘it appropriate to consider a motion to
dismiss.’’ (Emphasis added.)
The court continued, stating, ‘‘[i]n general, financial
disclosure is inappropriate unless and until the existing
separation agreement is set aside. Rupert v. Rupert,
190 App. Div. 2d 1027, 594 N.Y.S.2d 663 (1993). Referring
to a new operative standard set forth in [New York]
Domestic Relations Law § 236 (B), a [New York] Appel-
late Division court held that . . . to permit such dis-
covery would require an affirmative, factual showing,
at least prima facie that the agreement was unfair or
unreasonable when executed or unconscionable at the
time of the entry of final judgment. That lacking, the
court disallowed the request for discovery. Oberstein
v. Oberstein, 93 App. Div. 2d 374, 377–79, 462 N.Y.S.2d
447 (1983).’’17 (Emphasis omitted; internal quotation
marks omitted.) The court in the present case also rec-
ognized the ‘‘ ‘sensitive balancing’ ’’ permitted under
New York Civil Practice Law and Rules 3102 (c) and
utilized in Moore v. Moore, Docket No. 2013/995, 2015
WL 4530304 (N.Y. Sup. July 9, 2015) (decision without
published opinion, 48 Misc. 3d 1214 (A), 22 N.Y.S.3d
138 (2015)). The court stated: ‘‘In [Moore], a subpoena
duces tecum was served in connection with a motion
to vacate a [dissolution] judgment, the provisions of
which stemmed from an agreement, incorporated but
not merged in the judgment, and was therefore subject
to dismissal, there being no pending plenary action on
the underlying agreement.’’
The court continued, stating that, given the circum-
stances of the present case and under the standard
articulated by the New York courts, ‘‘even applying a
sensitive balancing, the plaintiff had failed to meet her
burden with at least a prima facie showing either that
the stipulation was unfair or unreasonable when negoti-
ated, or unconscionable when the dissolution judgment
was entered, or that the defendant’s action amounted
to wilful fraud or fraudulent concealment. Moreover,
[the plaintiff] has not established that, even if the judg-
ment were to be opened and the stipulation were to be
set aside, that the resulting judgment would likely be
substantially different.’’18 The court denied the plain-
tiff’s request for discovery and ordered that the ‘‘matter
shall be set down for argument as to show cause as to
why the plaintiff’s motion to open . . . should not be
denied consistent with New York law.’’19 (Emphasis
added.)
The parties and their counsel appeared in court on
March 19, 2019. The court commenced the proceeding
by stating: ‘‘I think that since the matter started with a
hearing with regard to postjudgment discovery and was
not per se a hearing on the merits, I believe that the
appropriate course of action is to dismiss . . . because
it’s jurisdictional and jurisdiction . . . always in this
particular instance . . . implicates the subject matter,
[which] can [be] raise[d] . . . at any time and even by
the court and that’s Practice Book [§] 10-33 . . . .’’ The
court then explained that the judgment was subject to
New York law and that the gravamen of the motion
to open was the prenuptial agreement. Prior to the
dissolution of the parties’ marriage, the court noted, a
New York court had determined that the prenuptial
agreement was valid and that there was no fraud on
the part of the defendant. The trial court then reviewed
and analyzed the evidence that supported the New York
court’s decision regarding the absence of fraud. The
court concluded: ‘‘[T]he bottom line, when all is said
and done, is that New York law says you cannot attack
the [judgment] based on a motion to open. It must be
done by a plenary action, a contract action, and that is
why I am going to dismiss this action immediately.’’20
(Emphasis added.) See Spataro v. Spataro, supra, 268
App. Div. 2d 468 (‘‘Supreme Court erred in entertaining
defendant’s motion on merits, as motion is not proper
vehicle for challenging a separation agreement incorpo-
rated but not merged into divorce judgment. Rather,
defendant should have commenced plenary action seek-
ing vacatur or reformation of the agreement.’’).
On April 5, 2019, the plaintiff appealed from the judg-
ment of dismissal, raising numerous claims. Of the
plaintiff’s several claims, the determinative one is
whether the court improperly dismissed the motion
to open on the ground that it lacked subject matter
jurisdiction.21 We agree with the plaintiff that the court
improperly dismissed the motion to open on the ground
that it lacked subject matter jurisdiction but conclude
that the court properly determined that the plaintiff
was able to challenge the stipulation only by bringing
a plenary action. In other words, the court should have
denied the plaintiff’s motion to open, hence, the form
of the judgment is improper.
We begin our analysis with the applicable standard of
review. ‘‘[A] determination regarding a court’s subject
matter jurisdiction is a question of law . . . .’’ Rathblott
v. Rathblott, 79 Conn. App. 812, 816, 832 A.2d 90 (2003).
The plenary standard of review applies to questions
of law. See Pond View, LLC v. Planning & Zoning
Commission, 288 Conn. 143, 155, 953 A.2d 1 (2008).
‘‘[T]he question of subject matter jurisdiction, because
it addresses the basic competency of the court, can be
raised by any of the parties, or by the court sua sponte,
at any time.’’ (Internal quotation marks omitted.) Web-
ster Bank v. Zak, 259 Conn. 766, 774, 792 A.2d 66 (2002).
‘‘Once the question of lack of jurisdiction of a court
is raised . . . [t]he court must fully resolve it before
proceeding further with the case. . . . Whenever a
court finds that it has no jurisdiction, it must dismiss the
case . . . .’’ (Citation omitted; internal question marks
omitted.) Rathblott v. Rathblott, supra, 817.
‘‘[E]very presumption favoring jurisdiction should be
indulged.’’ Connecticut Light & Power Co. v. Costle,
179 Conn. 415, 421 n.3, 426 A.2d 1324 (1980). ‘‘A court
does not truly lack subject matter jurisdiction if it has
competence to entertain the action before it. . . . Once
it is determined that a tribunal has authority or compe-
tence to decide the class of cases to which the action
belongs, the issue of subject matter jurisdiction is
resolved in favor of entertaining the action.’’ (Internal
quotation marks omitted.) Amodio v. Amodio, 247
Conn. 724, 728, 724 A.2d 1084 (1999).
As we noted previously, the plaintiff registered the
New York judgment of dissolution in Connecticut in
October, 2014, pursuant to § 46b-71, which provides in
relevant part: ‘‘(a) Any party to an action in which a
foreign matrimonial judgment has been rendered, shall
file, with a certified copy of the foreign matrimonial
judgment, in the court in this state in which enforce-
ment of such judgment is sought, a certification that
such judgment is final, has not been modified, altered,
amended, set aside or vacated and that the enforcement
of such judgment has not been stayed or suspended
. . . .
‘‘(b) Such foreign matrimonial judgment shall become
a judgment of the court of this state where it is filed
and shall be enforced and otherwise treated in the same
manner as a judgment of a court of this state . . . .
A foreign matrimonial judgment so filed shall have the
same effect and may be enforced or satisfied in the
same manner as any like judgment of a court of this state
and is subject to the same procedures for modifying,
altering, amending, vacating, setting aside, staying or
suspending said judgment as a judgment of a court of
this state; provided, in modifying, altering, amending,
setting aside, vacating, staying or suspending any
such foreign matrimonial judgment in this state the
substantive law of the foreign jurisdiction shall be
controlling.’’ (Emphasis added.)
Under General Statutes § 46b-1 (4), ‘‘the Superior
Court is vested with plenary and general subject matter
jurisdiction over legal disputes in family relations mat-
ters . . . .’’ (Internal quotation marks omitted.) Reinke
v. Sing, 328 Conn. 376, 389, 179 A.3d 769 (2018). ‘‘With
subject matter jurisdiction established, the trial court’s
task is to apply the statute to the facts of a particular
case, indeed, interpreting statutes and applying the law
to the facts before it [fall within] the traditional province
of the trial court. . . . Upon review of the trial court’s
actions, therefore, [our] role is to review the trial court’s
exercise of its authority to act.’’ (Internal quotation
marks omitted.) Id., 390.
Section 46b-71 provides that the Superior Court
where the foreign dissolution judgment is registered
has jurisdiction to modify the judgment, provided that
it applies the substantive law of the foreign jurisdiction.
See Vitale v. Krieger, 47 Conn. App. 146, 148–49, 702
A.2d 148 (1997). The record, in fact, discloses that the
trial court previously exercised its jurisdiction over the
parties’ dissolution judgment when it granted the plain-
tiff’s motion to modify. We, therefore, conclude that
the court improperly determined that it lacked subject
matter jurisdiction over the plaintiff’s motion to open.
As the court stated in its January 31, 2019 memoran-
dum of decision, two facts were critical to its decision:
(1) the stipulation was incorporated but not merged in
the dissolution judgment and (2) the stipulation pro-
vided that all matters related to it were to be governed
by New York law.
Nevertheless, because the issue of whether New York
substantive law precluded the court from granting the
plaintiff the relief she requested raises a question of
law, we consider whether the court should have denied
the plaintiff’s motion to open. ‘‘A stipulated judgment
is not a judicial determination of any litigated right.
. . . It may be defined as a contract of the parties
acknowledged in open court and ordered to be recorded
by a court of competent jurisdiction. . . . [It is] the
result of a contract and its embodiment in a form which
places it and the matters covered by it beyond further
controversy. . . . The essence of the judgment is that
the parties to the litigation have voluntarily entered into
an agreement setting their dispute or disputes at rest
and that, upon this agreement, the court has entered
judgment conforming to the terms of the agreement.’’
(Internal quotation marks omitted.) Barber v. Barber,
114 Conn. App. 164, 168, 968 A.2d 981, cert. denied, 292
Conn. 915, 973 A.2d 661 (2009). The court found that
the parties bargained in good faith for New York law
to apply to their stipulation. Although the plaintiff
moved to open the judgment of dissolution, in reality,
it is the stipulation that is at issue in the present matter,
not the judgment of dissolution. Had the plaintiff com-
menced a plenary contract action to vacate the stipula-
tion, the trial court would have had jurisdiction to adju-
dicate the action by applying the substantive law of New
York.22 See Wayne v. Wayne, Superior Court, judicial
district of Litchfield, Docket No. FA-XX-XXXXXXX (Febru-
ary 17, 1999) (when certain provisions in New York
agreement do not merge into judgment, they retain con-
tractual significance).
Although the court conducted an Oneglia hearing in
December, 2018, in its January 31, 2019 memorandum
of decision, it recognized that Oneglia did not control
postjudgment discovery and applied New York law to
the evidence presented at the hearing. The court further
recognized that a stipulation that is incorporated, but
not merged, into a New York dissolution judgment may
not be challenged by way of a motion to open the
dissolution judgment, but only by the commencement
of a plenary action seeking to undo the stipulation itself.
See Anderson v. Anderson, supra, 153 App. Div. 3d
1628. The court also recognized that it is error for a
court to entertain a motion to open such a judgment
on its merits when the underlying stipulation has not
been set aside. See Spataro v. Spataro, supra, 268 App.
Div. 2d 468.23
The plaintiff argues that the court improperly applied
New York procedural law rather than Connecticut pro-
cedural law, because the rule requiring a plenary action
to challenge a stipulation not merged into the judgment
of dissolution is procedural and not substantive. She
also argues that discovery, which is what she sought
in the trial court, is inherently procedural. She further
contends that the fact that § 46b-71 sets forth the proce-
dure for enforcing foreign matrimonial judgments in
Connecticut confirms that the New York rule is proce-
dural. Finally, the plaintiff posits that the court, up until
the time it improperly applied New York procedural
law to deny her discovery request, recognized the proce-
dural nature of the issues before it and applied Connect-
icut’s procedural rules under Oneglia.
The defendant argues that the New York rule requir-
ing that the validity of a stipulation be challenged in a
plenary action is substantive and that the trial court
properly applied it. He also contends that the New York
rule is predicated on public policy that recognizes that
the valid substantive contractual rights of the parties
take precedence over inchoate and previously waived
statutory rights. We agree with the defendant that the
New York rule requiring a plenary action to challenge
the terms of a settlement agreement, incorporated but
not merged into the judgment of dissolution, is sub-
stantive.
‘‘The judicial rule of thumb, that in a choice of law
situation the forum state will apply its own procedure
. . . brings us to the vexing question of which rules
are procedural and which substantive. These terms are
much talked about in the books as though they defined
a great divide cutting across the whole domain of law.
But, of course, substance and procedure are the same
keywords to very different problems.’’ (Citation omit-
ted; internal quotation marks omitted.) Paine Webber
Jackson & Curtis, Inc. v. Winters, 22 Conn. App. 640,
650, 579 A.2d 545, cert. denied, 216 Conn. 820, 581 A.2d
1055 (1990).
‘‘The ordinary rule is that where a cause of action
arising in another [s]tate is asserted in our courts, we
look to the laws of that [s]tate to determine all matters
of substance involved in it, but that matters of proce-
dure are governed by our own law . . . .’’ Broderick
v. McGuire, 119 Conn. 83, 101, 174 A. 314 (1934). ‘‘While
there is no precise definition of either [substantive or
procedural law], it is generally agreed that a substantive
law creates, defines and regulates rights while a proce-
dural law prescribes the methods of enforcing such
rights or obtaining redress. . . . Where the [law] is not
substantive, i.e., not directed to the right itself, but
rather to the remedy, it is generally considered a dis-
tinctly procedural matter.’’ (Internal quotation marks
omitted.) DuBaldo Electric, LLC v. Montagno Con-
struction, Inc., 119 Conn. App. 423, 449–50, 988 A.2d
351 (2010). In Weber v. U.S. Sterling Securities, Inc.,
282 Conn. 722, 735–41, 924 A.2d 816 (2007), our Supreme
Court addressed whether a New York rule that prohib-
ited class actions was procedural or substantive in
nature. The court concluded that ‘‘[i]t is clear that [New
York Civil Practice Law and Rules] § 901 (b) [McKinney
2006] is substantive because it abridges the rights of
individuals to bring class action claims in New York
state. We have determined that statutes, like § 901 (b),
that affect an individual’s cause of action clearly are
substantive in nature. See Doe v. Norwich Roman Cath-
olic Diocesan Corp., 279 Conn. 207, 219, 901 A.2d 673
(2006) ([i]t is beyond dispute that [General Statutes]
§ 1-1d is substantive in nature because it generally gives
persons . . . legal capacity, rights, powers, privileges,
duties, liabilities).’’ (Internal quotation marks omitted.)
Weber v. U.S. Sterling Securities, Inc., supra, 739.
Consequently, we must examine whether the New
York rule at issue in this case, i.e., that the validity of
a stipulation must be challenged by means of a plenary
action, defines rights under New York law or merely
provides a remedy for enforcing rights. Under New York
law, a stipulation of settlement that is incorporated but
not merged into a judgment of divorce is a contract
subject to principles of contract construction and inter-
pretation. See, e.g., D’Sa v. D’Sa, 182 App. Div. 3d 535,
536, 122 N.Y.S.3d 344 (2020); Campello v. Alexandre,
155 App. Div. 3d 1381, 1382, 65 N.Y.S.3d 348 (2017);
Anderson v. Anderson, supra, 153 App. Div. 3d 1628. A
stipulation of settlement not merged into the judgment
is independently binding on the parties, and New York
courts may not impair the parties’ contractual rights
under the agreement by modifying the divorce judg-
ment. See Fine v. Fine, 191 App. Div. 2d 410, 594
N.Y.S.2d 309 (1993); see also Lambert v. Lambert, 142
App. Div. 2d 556, 558, 530 N.Y.S.2d 223 (1988) (‘‘while
a judgment of divorce can be attacked pursuant to [New
York Civil Practice Law and Rules] 5015, the separation
agreement will remain unimpeached unless challenged
in a plenary action’’).24 For example, in Pellot v. Pellot,
305 App. Div. 2d 478, 479–80, 759 N.Y.S.2d 494, (2003),
the court held that the trial court incorrectly concluded
that the defendant could not enforce her right to the
amount of child support set forth in the parties’ separa-
tion agreement because the family court had made a
downward modification of the plaintiff’s child support
obligation in the judgment of dissolution. The court
concluded: ‘‘[T]he [defendant] is entitled to enforce [the
child support] provisions of the stipulation and to
recover the difference between the amount of child
support agreed to in the stipulation and the reduced
amount set by the [f]amily [c]ourt.’’ Id., 480. Thus, it is
clear to us that, under New York law, the parties to a
separation agreement that is not merged into a dissolu-
tion judgment have contractual rights that, in many
instances, cannot be undone by modifying the judgment
of dissolution.
It is for this reason that under New York domestic
relations law, ‘‘financial disclosure in support of a claim
to overturn a separation agreement is inappropriate
until the existing separation agreement is set aside.
. . . The only exception to this rule requires the moving
party to establish a ‘legitimate factual predicate’ for
setting aside the existing agreement. . . . The spouse
seeking discovery about the other spouse’s finances—
after execution of an agreement—must adduce suffi-
cient factual support constituting a legitimate basis to
warrant modification or vacatur of the support provi-
sions of the separation agreement . . . . The Fourth
Department has adopted this requirement for a legiti-
mate factual predicate before allowing discovery by a
party to overturn a separation agreement.’’ (Citations
omitted; internal quotation marks omitted.) Moore v.
Moore, supra, 2015 WL 4530304 *2; see footnote 17 of
this opinion. Significantly, such discovery, even where
permitted, cannot be used to support a motion to open
the judgment of dissolution. Instead, any challenge to
whether the separation agreement was procured by
fraud, as claimed by the plaintiff in the present case,
must be brought in a plenary action. See id., *8.25 There
is simply no right under New York law to challenge
the validity of a separation agreement through a motion
to open the dissolution judgment. The New York rule
affects the very existence of the cause of action. Conse-
quently, we conclude that the New York rule requiring
a party to challenge a separation agreement through a
plenary action is substantive and not procedural. As
such, § 46b-71 and the parties’ stipulation required that
the trial court apply this New York substantive rule to
the plaintiff’s motion to open.
In the present case, after conducting an Oneglia hear-
ing, the court found that the plaintiff had failed to meet
her burden with at least a prima facie showing either
that the stipulation was unfair or unreasonable when
negotiated or unconscionable when the dissolution
judgment was entered, or that the defendant’s actions
amounted to wilful fraud or fraudulent concealment,
or that, if the judgment were set aside, the resulting
judgment would be different. The court, however, deter-
mined that it erred in entertaining the merits of the
plaintiff’s discovery motion, which was ancillary to the
motion to open, because a motion to open is not the
proper vehicle to challenge a stipulation incorporated,
but not merged, into a judgment of dissolution. See
Spataro v. Spataro, supra, 268 App. Div. 2d 468. To
challenge the validity of the stipulation that was not
merged into the dissolution judgment, New York sub-
stantive law requires a party to bring a plenary action.
Id.; see also Moore v. Moore, supra, 2015 WL 4530304,
*8; Marshall v. Marshall, 124 App. Div. 3d 1314, 1317,
1 N.Y.S.3d 622 (2015); Brody v. Brody, 82 App. Div. 3d
812, 812, 918 N.Y.S.2d 383 (2011); Lepe v. Rodriguez,
73 App. Div. 3d 710, 710–11, 899 N.Y.S.2d 856 (2010);
Barany v. Barany, 71 App. Div. 3d 613, 614, 898 N.Y.S.2d
146 (2010). In March, 2019, the court recognized that
the plaintiff had to bring a plenary action to challenge
the stipulation. We agree with the court’s conclusion
that, under New York substantive law, the plaintiff was
required to bring a plenary action. We disagree, how-
ever, with the court’s conclusion that it lacked subject
matter jurisdiction. The court had jurisdiction to con-
sider the motion to open pursuant to §§ 46b-1 and 46b-
71 (b), and, therefore, it should have denied, rather than
dismissed, the motion to open.
The form of the judgment is improper, the judgment
dismissing the plaintiff’s motion to open is reversed and
the case is remanded with direction to render judgment
denying the motion to open.
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
In addition, the plaintiff claims that the court (1) improperly addressed
the merits of the motion to open after determining that it lacked subject
matter jurisdiction, (2) abused its discretion by failing to grant her motion
for a continuance after her counsel disclosed that she intended to withdraw
her appearance, and (3) erred in finding that the plaintiff had failed to
demonstrate probable cause for postjudgment discovery under Oneglia v.
Oneglia, 14 Conn. App. 267, 540 A.2d 713 (1988), or comparable New York
law. We need not address these claims as we conclude that, pursuant to
New York law, the trial court properly determined that the plaintiff was
required to raise her claims with respect to the parties’ stipulation by means
of a plenary action.
The plaintiff’s additional claims are subsumed within her principal claim
that the court improperly dismissed her motion to open. As we explain in
the body of this opinion, the court properly determined that all matters
regarding the stipulation are governed by New York law and that the plaintiff
was required to bring a plenary action to challenge her rights under the
stipulation. Although the trial court held a hearing to determine whether
the plaintiff had more than a mere suspicion of fraud to permit postjudgment
discovery and made certain factual findings in that regard, it later determined
that it improperly had entertained the motion to open because the plaintiff
had not commenced a plenary action to vacate the stipulation.
2
Since 2014, when the plaintiff registered the New York dissolution judg-
ment in Connecticut, more than 280 entries have been made on the trial
court docket.
3
The trial court found that the prenuptial agreement is undated. The
defendant signed it on August 14, 1997, and the plaintiff, then known as
Elana Horowitz, signed it on August 12, 1997.
4
We set forth portions of the parties’ prenuptial agreement to provide
context for the issues in the present appeal. The trial court found that § 10,
‘‘PAYMENT UPON OPERATIVE EVENT,’’ is the provision germane to the
plaintiff’s motion to open.
‘‘WHEREAS, a marriage is about to be solemnized between the parties
. . . [and] the parties desire to fix . . . certain of their respective rights
. . . that shall or may accrue to each of them in certain real and personal
property; and
‘‘. . . both parties acknowledge that they understand their respective
rights . . . as provided for in [New York] Domestic Relations Law [§] 236-
B and that they make this Agreement with the understanding that they are
hereby settling the prospective terms . . . of the marriage relationship with
respect to matters of property rights, and they further understand that this
Agreement is in lieu of their prospective rights to litigate such matters before
a court of competent jurisdiction; and
‘‘. . . both parties have discussed the terms . . . implications and mone-
tary considerations involved between themselves, [and] they desire to set
forth their agreement in writing, without any duress . . . and they do fully
and voluntarily enter into this Agreement. . . .
‘‘1. FINANCIAL DISCLOSURE
‘‘[Each of] the parties . . . has furnished the other with a copy of [his
or her] 1996 Federal Income Tax Return . . . and . . . they have each had
the opportunity to review same.
‘‘[The defendant] has . . . filed . . . Corporate and Partnership Tax
Returns for those items of separate property . . . which are deemed to be
confidential due to the interest of . . . parties not in privity [with this]
Agreement. Although [the plaintiff has requested them, she] has not been
furnished with copies of such documents, and is executing this Agreement
despite her lack of access to [them].
‘‘In lieu of providing copies of such Corporate and Partnership Tax
Returns, [the defendant] has [represented to the plaintiff] . . . the value of
the businesses as set forth in Schedule ‘A.’ Similarly, [the plaintiff has
represented to the defendant] the value of assets listed on Schedule ‘B.’
Both parties acknowledge that they are relying upon such representations
. . . regarding the financial . . . circumstances of the other party, in exe-
cuting this Agreement. . . .
‘‘5. OWNERSHIP AND DIVISION OF PROPERTY
‘‘In the event of a . . . judicial dissolution of the marriage, each party
shall retain his or her separate property to his or her exclusive ownership
and use. . . .
‘‘7. INTENTION OF AGREEMENT
‘‘This Agreement is solely intended to make provision for the ownership,
division and distribution of marital and separate property. . . .
‘‘10. PAYMENT UPON OPERATIVE EVENT
‘‘If an operative event . . . occurs . . . [the defendant] shall pay to [the
plaintiff] . . . in full . . . settlement of . . . all claims . . . that [the
plaintiff] may have against [the defendant] for a distributive award for any
contribution . . . of whatever kind . . . to the appreciation of separate
property, including but not limited to: Essential Oils, Inc.; Flavormatic, Inc.;
or R & R Realty or any subsidiary or derivative endeavor. . . .
‘‘C. If an operative event first occurs after . . . the seventh anniversary
. . . but not later than the twelfth anniversary . . . of the marriage, then
as a property settlement [the defendant] shall pay [the plaintiff a] sum equal
to twenty . . . percent of [his] adjusted gross income . . . .
‘‘ ‘[A]djusted gross income’ shall be . . . the average of [the defendant’s]
adjusted gross annual income . . . for the five . . . years immediately pre-
ceding . . . the operative event, including the year of the operative
event. . . .
‘‘11. OPERATIVE EVENT, DEFINED
‘‘[A]n operative event . . . shall mean . . . [c]ommencement of an
action . . . by either party seeking a . . . dissolution of the marriage
. . . .
‘‘15. SUBSEQUENT PROCEEDINGS
‘‘The parties agree that all . . . provisions of the Agreement shall be
binding upon them upon the date of [their] marriage . . . [and] shall . . .
be binding upon [them] and shall become a part of any subsequent agreement
entered into between [them] . . . . The provisions of this Agreement shall
. . . be incorporated but not merged in any judgment . . . of divorce . . .
obtained by either party . . . [and] shall . . . survive the same . . . .
‘‘19. SITUS
‘‘This Agreement shall be construed . . . in accordance with the laws
of the State of New York. . . .
‘‘21. LEGAL REPRESENTATION
‘‘The parties represent . . . that [they have been represented by counsel
of their respective choice] . . . .’’ (Emphasis added.)
5
The New York court upheld the validity of the prenuptial agreement,
stating in its May 4, 2010 decision: ‘‘The plaintiff has failed to establish that
the represented value of the Flavormatic Companies was false at the time
it was made; that the defendant knew the values to be false; and that the
alleged misrepresentation of the value of the companies was made for the
purpose of inducing the plaintiff to enter into the prenuptial agreement.
Moreover, there is no showing that the plaintiff relied on the alleged misrep-
resentation or that she was injured as a result of the alleged misrepresenta-
tion. On the contrary, the plaintiff concedes that she knowingly waived any
and all rights to the Flavormatic Companies. She testified unequivocally
that she knew the defendant intended to keep these companies as separate
property regardless of their values.’’
6
Other pertinent provisions of the stipulation that underscore its contrac-
tual nature follow.
‘‘ARTICLE XVI
‘‘WAIVER OF EQUITABLE DISTRIBUTION
‘‘1. The parties intend this Agreement to constitute an Agreement pursuant
to [New York Domestic Relations Law] § 236 (B) (3). They intend this
Agreement and its provisions to be in lieu of each of their respective rights
pursuant to all aspects of [New York Domestic Relations Law] § 235 (B).
Accordingly, except to the extent provided in this Agreement, the parties
mutually waive their rights and release each other from any claims for
maintenance, distribution of marital property, distributive awards, special
relief or claims regarding separate property or increase in the value
thereof. . . .
‘‘ARTICLE XVII
‘‘FULL DISCLOSURE
‘‘Each party has had the opportunity to make independent inquiry into
the complete financial circumstances of the other and is fully informed of
the income, assets, property and financial prospects of the other. Each has
had a full opportunity and has consulted at length with his or her attorney
regarding all of the circumstances hereof, and acknowledges that this Agree-
ment has not been the result of any fraud, duress or undue influence
exercised by either party upon the other or any other person or persons
upon the other. Both parties acknowledge that this Agreement has been
achieved after competent legal representation and honest negotiations. . . .
‘‘ARTICLE XXIII
‘‘RECONCILIATION AND MATRIMONIAL DECREES
‘‘1. This Agreement shall not be invalidated or otherwise affected by a
reconciliation . . . and this Agreement shall not be invalidated or otherwise
affected by any decree or judgment of separation or divorce made by any
court in any action which may presently exists or may hereafter be instituted
by either party against the other for a separation or divorce, and the obliga-
tions and covenants of this Agreement shall survive any decree or judgment
of separation or divorce and shall not merge therein, and this Agreement
may be enforced independently of such decree or judgment. . . .
‘‘ARTICLE XXIV
‘‘LEGAL INTERPRETATION
‘‘All matters affecting the execution, interpretation, performance and
enforcement of this Agreement and the rights of the parties hereto shall be
governed by the laws of the State of New York. . . . Any actions or claims
involving this Agreement . . . shall be governed by the Laws of the State
of New York and the Supreme Court of the State of New York, Westchester
County will retain jurisdiction . . . of all such issues, provided at least one
party resides in Westchester County New York. . . . If both parties reside
outside of New York State, any actions or claims involving this Agreement
. . . shall be brought in a court of competent jurisdiction, and with respect
to any choice of laws, the Laws of the State of New York shall be applied
and govern in all respects.’’ (Emphasis added.)
7
‘‘The general rule is, that by a judgment . . . the contract or instrument
upon which the proceeding is based becomes entirely merged in the judg-
ment. By the judgment of the court, it loses all of its vitality and ceases to
bind the parties to its execution. Its force and effect are then expended,
and all remaining legal liability is transferred to the judgment or decree.
Once becoming merged in the judgment, no further action at law or suit in
equity can be maintained on the instrument.’’ (Internal quotation marks
omitted.) 30 R. Lord, Williston on Contracts (4th Ed. 2004) § 76:50, p. 237.
‘‘However, the parties may agree that certain contractual rights will
survive the entry of a judgment. This is particularly likely in the case of
separation agreements in divorce cases. Thus, it has been said: ‘If parties
who are dissolving their marriage wish to retain contractual remedies as
well as the remedies that are available under the dissolution judgment, then
they may do so by entering into an agreement and identifying which, if any,
of the terms of their agreement they wish to have the court incorporate
into the judgment, and which terms they wish to have survive as separate
agreements.’ ’’ (Emphasis added.) Id., 239.
‘‘Contract clauses which require the application of the laws of other states
upon breach or dispute are recognized as proper in Connecticut. . . . The
ordinary rule is that where a cause of action arising in another [s]tate is
asserted in our courts, we look to the laws of that [s]tate to determine all
matters of substance involved in it, but that matters of procedure are gov-
erned by our own law . . . .’’ (Citation omitted; internal quotation marks
omitted.) People’s United Bank v. Kudej, 134 Conn. App. 432, 438, 39 A.3d
1139 (2012); see also General Statutes § 46b-71 (b).
8
The stipulation provided that following the sale of the marital home, the
defendant was to pay the plaintiff base child support in the amount of $5000
per month. The judgment of dissolution states in relevant part: ‘‘Each party
has a right to seek a modification of the child support order upon a showing
of: (I) a substantial change in circumstances; or (II) that three years have
passed since the order was entered, last modified or adjusted; or (III) there
has been a change in either party’s gross income by fifteen percent or more
since the order was entered, last modified, or adjusted; however, if the
parties have specifically opted out [of] subparagraph (II) or (III) of this
paragraph in a validly executed agreement or stipulation, then that basis to
seek modification does not apply.’’
9
The court’s application of New York Domestic Relations Law was in
keeping with § 46b-71 (b), which provides in relevant part that, in modifying a
foreign matrimonial dissolution judgment, the substantive law of the foreign
jurisdiction shall be controlling.
10
The court ordered the defendant to pay the plaintiff $10,190 per month
in child support until the older of the parties’ two children attained the age
of twenty-one years. The modified support order was made retroactive,
resulting in an arrearage of $145,320. The court ordered the defendant to pay
the arrearage to the plaintiff in three installments. The court also awarded
the plaintiff $50,000 in attorney’s fees.
11
It is perplexing why the plaintiff filed a motion to open the judgment
of dissolution and requested a new dissolution trial because she remarried
three days after divorcing the defendant. The parties agreed pursuant to
the stipulation that the plaintiff may enforce the stipulation independently
without disturbing the judgment of dissolution. As the trial court stated,
the plaintiff was required to bring a plenary contract action, rather than
attack the judgment of dissolution.
12
In her motion to open, the plaintiff averred in part:
‘‘2. Prior to their marriage, the parties entered into a prenuptial agreement
[pursuant to which], plaintiff waived her interest in defendant’s separate
property, including his business interests. At the time, defendant was a 50
[percent] owner of Flavormatic Industries, Essential Oil Suppliers and R &
R Realty, of which entities defendant’s brother was his partner. Defendant’s
financial disclosure for purposes of the prenuptial agreement consisted of
his 1996 personal income tax return reflecting $41,000 in wages and $11,157
in rental income, a schedule listing his business interests and the values of
his bank and brokerage accounts . . . and a statement from his accountant
of the fair market value of his business interests. Plaintiff specifically waived
any further discovery in executing the prenuptial agreement. . . .
‘‘4. Plaintiff commenced a divorce action on February 2, 2009. During
the divorce proceedings, plaintiff unsuccessfully challenged the prenuptial
agreement on the basis of defendant’s fraud . . . and, as a result, the Court
limited discovery and plaintiff was not permitted access to documents
related to defendant’s business interests . . . .
‘‘5. The parties started a divorce trial on April 4, 2011 [but] settled and
executed a [stipulation] dated April 11, 2011, which was subsequently
incorporated into the divorce judgment.
‘‘6. In connection with the trial, defendant had submitted to plaintiff and
to the Court a sworn Statement of New Worth . . . dated April 1, 2011.
‘‘7. On his [statement of net worth] under GROSS INCOME, defendant
wrote ‘0.00.’ Defendant then wrote ‘See Attached 2010 income information’
. . . [and] attached . . . documents relative to the prior year’s income
. . . .
‘‘8. Defendant indicated total expenses on his [statement of net worth]
of $12,096 per month . . . not including any support to be paid towards
plaintiff and the parties’ two children.
‘‘9. On his [statement of net worth], defendant [listed his assets] . . . .
‘‘10. . . . According to defendant at the time of the parties’ divorce, other
than the value of his business (which he stated was N/A), his other cash
and retirement assets totaled $131,215 . . . which he claimed was his ‘sepa-
rate property’ under the parties’ prenuptial agreement except for [a] . . .
brokerage account and the cash value of his life insurance policy.
‘‘11. Based upon defendant’s ‘disclosures’ on his sworn financial statement,
relied upon by plaintiff, the parties entered into [a] settlement, which set
forth that their [stipulation] superseded the Prenuptial Agreement:
‘‘a. Child Support:
‘‘- Defendant to pay child support to plaintiff in the amount of $5000 per
month, based upon defendant’s gross income of $265,000 in 2009 . . .
‘‘- Defendant to pay 80 [percent] of statutory add-ons for the children; and
‘‘- Defendant to pay 60 [percent] of college [costs] for the children with
a [State University of New York] cap.
‘‘b. Alimony: Plaintiff waived her right to alimony. . . .
‘‘12. . . . [P]laintiff [received] cash assets from the marriage totaling
$488,776 . . . .
‘‘15. On November 21, 2014 . . . after domesticating the New York Judg-
ment of Divorce in Connecticut, plaintiff filed a motion to modify . . . on
the ground that under New York law, defendant’s income had increased by
at least [15] percent since the Judgment of Divorce resulting in a substantial
change in circumstances requiring an upward modification . . . .
‘‘18. It was only during the discovery process on the [motion to modify]
did plaintiff begin to learn that defendant’s April, 2011 statement of net
worth . . . contained false statements and material omissions intended to
mislead plaintiff and the Court, and misrepresent his actual income and the
parties’ marital assets. . . .
‘‘20. Defendant lied on his [statement of net worth] about his available
and true compensation as the owner of Flavormatic, listing his 2011 income
as ‘0.00’ and his 2010 income as $150,000, and then each year starting
with the year of his divorce taking compensation ranging from $950,000 to
$1,900,000 . . . .
‘‘21. Defendant stockpiled money in his corporation in order to avoid
equitable distribution of marital assets and to avoid paying alimony and
child support . . . .
‘‘25. Defendant hid the income [he earned] during the marriage, which
would have resulted in significant nonbusiness assets subject to equitable
distribution, stockpiling those sums in his businesses, because he knew that
plaintiff would not have access to the information by virtue of the trial
court upholding the enforceability of the prenuptial agreement. Defendant
intentionally omitted this information on his [statement of net worth] for
the purpose of fraudulently inducing plaintiff [to enter] into a [stipulation]
which was egregiously inequitable. Defendant’s misconduct was wilful, mali-
cious and unlawful, as a result of which this Court should vacate the parties’
April, 2011 [stipulation], open the divorce judgment and order a new trial.
‘‘26. Had defendant been truthful on his [statement of net worth], there
is a reasonable possibility that . . . the settlement would have been differ-
ent [in that plaintiff would not have waived alimony, would not have agreed
to $5000 per month in child support, would have demanded counsel fees,
would not have agreed to limit the defendant’s obligation to pay for the
children’s college expenses at the State University of New York cap, would
not have agreed to pay 40 percent of the children’s college expenses, would
not have agreed to leave the marriage with less than $500,000, and would
have demanded higher life insurance coverage for child support and for
alimony].’’ (Emphasis altered; footnote omitted.)
13
‘‘Oneglia and its progeny are grounded in the principle of the finality
of judgments.’’ Brody v. Brody, 153 Conn. App. 625, 631, 103 A.3d 981, cert.
denied, 315 Conn. 910, 105 A.3d 901 (2014).
14
In Oneglia, the plaintiff wife filed a motion to open the judgment of
dissolution, claiming that the defendant husband fraudulently had misrepre-
sented his finances with respect to the parties’ separation agreement. Oneg-
lia v. Oneglia, supra, 14 Conn. App. 268. The wife asked the court to
open the judgment and to allow ‘‘ ‘complete discovery.’ ’’ Id. The trial court
deferred a decision on the issue of discovery until it had conducted a hearing
to determine whether the wife ‘‘possessed enough preliminary evidence on
the question of fraud to justify a full-blown discovery process.’’ Id. Following
the hearing, the court found that the wife ‘‘had not put forth sufficient indicia
of fraud to justify an opening of the judgment and further discovery.’’ Id.,
269. The wife appealed, claiming that she had a right to conduct discovery
and to compel the husband to testify. Id. This court disagreed and affirmed
the judgment of the trial court, stating that the wife’s premise was incorrect
in that our rules of practice and statutes do not provide for postjudgment
discovery. Id. The trial court’s position was straightforward: ‘‘If the [wife]
was able to substantiate her allegations of fraud beyond mere suspicion, then
the court would open the judgment for the limited purposes of discovery,
and would later issue an ultimate decision on the motion to open after
discovery had been completed and another hearing held.’’ (Emphasis added.)
Id., 269–70.
15
At the conclusion of the October 26, 2018 hearing, counsel for the
defendant informed the court that the defendant wanted to address the
court personally. The defendant then stated to the court that he wanted the
proceedings to be expedited because he had been diagnosed with glioblas-
toma, a brain tumor. His desire was to resolve the litigation to put his affairs
in order and to not burden his family and his estate.
16
Counsel for the defendant also argued that the court should dismiss
the motion to open because the plaintiff had failed to make out a prima
facie case of fraud on the part of the defendant. Although the court found
that the plaintiff failed to make out a prima facie case of fraud, it did not
dismiss the motion to open on that basis.
17
In Oberstein, the defendant wife sought by way of counterclaims to
reform the parties’ separation agreement at the time the plaintiff husband
commenced an action for dissolution of marriage. Oberstein v. Oberstein,
supra, 93 App. Div. 2d 375. The court set forth the rule of law in that regard
as follows: ‘‘It has been established law in this [s]tate that where there is
an existing separation agreement, which controls the respective support
obligations of the parties, in a subsequent matrimonial action for divorce
neither alimony nor support is in issue unless and until the support terms
of the separation agreement are set aside. On this basis, the courts have
regularly denied any financial disclosure in such an action, as long as the
support terms of the separation agreement remain in effect.’’ Id., 376. ‘‘How-
ever, so much of defendant’s notice to take plaintiff’s oral deposition as
requests information regarding his present financial condition is premature.
Plaintiff’s present financial circumstances are not relevant to the defendant’s
claim, inter alia, that she was deceived regarding the true extent of her
husband’s income at the time that the separation agreement was entered
into and will not become an issue unless and until the separation agreement
or its support provisions have been vacated or set aside on the grounds of
fraud, duress or overreaching, etc.’’ (Internal quotation marks omitted.) Id.,
376–77, quoting Potvin v. Potvin, 92 App. Div. 2d 562, 563, 459 N.Y.S.2d
313 (1983).
‘‘The equitable distribution statute . . . continued, in effect, the prior
rule which directed compulsory financial disclosure where alimony, mainte-
nance or support is in issue. . . . However, where, as here the support or
maintenance obligations of the parties are fixed by an agreement, neither
support nor maintenance is ‘in issue’ unless there is a real and legitimate
presentation to vacate the support terms of the agreement on the basis of
the criteria explicitly set forth in the statute. Thus, in such cases, it is
necessary to review the factual predicate which has been set forth to ascer-
tain whether, in fact, the underlying circumstances establish a proper basis to
modify the agreement.’’ Oberstein v. Oberstein, supra, 93 App. Div. 2d 379–80.
18
In Moore, the New York trial court balanced the need to respect the
finality of separation agreements with the need for accurate disclosure and
permitted postjudgment discovery. Moore v. Moore, supra, 2015 WL 4530304,
*5–8. Moore is factually and procedurally distinguishable from the present
case. Moore concerned the application of a former husband seeking to
subpoena financial records from his former spouse in order ‘‘to frame [a]
complaint to challenge a two-year old separation agreement.’’ Id., *1. The
court stated that New York Civil Practice Law and Rules 3102 (c) ‘‘contains
no preconditions to pre-complaint disclosure—[it] seems to obviate the need
to have an already vacated separation agreement as a predicate to disclosure.
Instead, as interpreted by the New York courts, [it] simply requires a party
seeking such disclosure to articulate the elements of a cause of action.’’ Id.,
*5. In balancing the need for accurate disclosure and the finality of separation
agreements, the court noted that ‘‘[t]he parties expressly agreed that further
disclosure to enforce the [a]greement would be permissible at any time
either party had an obligation to the other.’’ Id., *7. ‘‘In concluding that
the sensitive balance of the intrusiveness of the requested discovery when
weighed against the nature of the claim makes disclosure permissible, this
court is not conducting any pre-screening of the merits of the husband’s
claim. Any such determination would await the filing of a complaint, an
answer and further proceedings.’’ Id. The court further concluded that to
the extent the husband wished to ‘‘invalidate the agreement incorporated
[but] not merged into a judgment of divorce, he must do so by a plenary
action.’’ Id., *8.
In the present case, the stipulation contained no provision for further
disclosure to enforce or to vacate it. Furthermore, the plaintiff’s motion to
open is not the equivalent of a New York Civil Practice Law and Rules 3102
(c) application for preaction discovery, which can be pursued in Connecticut
through an equitable bill of discovery. See Practice Book § 13-18. Finally,
the plaintiff’s motion to open seeks to avoid the plenary action to challenge
the stipulation that the court in Moore said was the complaining party’s sole
method to challenge the separation agreement. Under the procedural posture
of this case, if the court had permitted discovery, the plaintiff would not
have been required to commence such an action in which to allege fraud.
19
The court also set forth in detail its legal analysis, including eight specific
factual findings. Because we conclude that the trial court properly deter-
mined that, pursuant to New York substantive law, the plaintiff was required
to bring a plenary action to challenge the stipulation, we need not address
her remaining claims. See footnote 1 of this opinion.
20
It appears that the court may have used the terms ‘‘deny’’ and ‘‘dismiss’’
interchangeably. The order the court issued on January 31, 2019, stated that
the ‘‘matter shall be set down for argument as to show cause as to why the
plaintiff’s motion to open . . . should not be denied consistent with New
York law.’’ (Emphasis added.) At the commencement of the hearing on
March 19, 2019, the court stated: ‘‘I think that since the matter started with
a hearing with regard to postjudgment discovery and was not per se a
hearing on the merits, I believe that the appropriate cause of action is to
dismiss and to the extent that my memorandum, although I think in two
places one place I think I said deny/dismiss and just—I type my own deci-
sions so—but in any event that’s the appropriate remedy because it’s jurisdic-
tional and jurisdiction is always in this particular instance because it impli-
cates the subject matter, you can raise it at any time and even by the court
and that’s Practice Book [§] 10-33 is a motion to dismiss . . . .’’
21
On appeal, the defendant argues that the stipulation exists independently
of the dissolution judgment and governs the parties’ marital rights. We agree
that the stipulation is independent of the dissolution judgment.
22
‘‘Contract clauses which require the application of the laws of other
states upon breach or dispute are recognized as proper in Connecticut. . . .
The ordinary rule is that where a cause of action arising in another [s]tate
is asserted in our courts, we look to the laws of that [s]tate to determine
all matters of substance involved in it, but that matters of procedure are
governed by our own law . . . .’’ (Citation omitted; internal quotation marks
omitted.) People’s United Bank v. Kudej, 134 Conn. App. 432, 438, 39 A.3d
1139 (2012).
23
In her brief on appeal, the plaintiff argued that failure to commence a
plenary action for reformation or rescission of a stipulation is not a fatal
defect in New York. She cited the following cases to support her position:
MacDonald v. Guttman, 72 App. Div. 3d 1452, 1455–56, 900 N.Y.S.2d 177
(2010) (malpractice action; stipulated agreement is independent contract
obligation modifiable by plenary action; under certain circumstances court
may reform agreement to conform to parties’ intent); Banker v. Banker, 56
App. Div. 3d 1105, 1107, 870 N.Y.S.2d 481 (2008) (court did not exceed
authority by reforming stipulation where there was mutual mistake, render-
ing portion of stipulation impossible or impracticable to carry out); Brender
v. Brender, 199 App. Div. 2d 665, 666, 605 N.Y.S.2d 411 (1993) (relevant
stipulation provision set aside where there was mutual mistake regarding
insurance availability); Gaines v. Gaines, 188 App. Div. 2d 1048, 592 N.Y.S.2d
204 (1992) (postdissolution modification of agreement requires plenary
action but modification on motion affirmed because it was granted after
full hearing tantamount to plenary trial). In the present case there is no
claim of mutual mistake, technical defect or agreement of the parties to
proceed on a motion to modify or open the judgment.
The defendant, however, has pointed out that the New York cases cited
by the plaintiff are distinguishable from the present case because the motions
at issue were grounded in mistake, omission, defect, irregularity or a techni-
cal defect. The defendant argues that those cases teach that where the issue
is not in dispute, e.g., inability to subdivide real property, no health insurance
available, or that securities should have been included in equitable distribu-
tion, and both parties request that the court correct a mistake in the agree-
ment, the Appellate Division of the New York Supreme Court will not reverse
the trial court’s judgment. Where the issue is in dispute, however, the issue
must be bought pursuant to a plenary action to reform or to vacate the
agreement. See New York Civil Practice Law and Rules 2001, which provides:
‘‘At any stage of an action, including the filing of a summons with notice,
summons and complaint or petition to commence an action, the court may
permit a mistake, omission, defect or irregularity, including the failure to
purchase or acquire an index number or other mistake in the filing process,
to be corrected, upon such terms as may be just, or, if a substantial right
of a party is not prejudiced, the mistake, omission, defect or irregularity
shall be disregarded, provided than any applicable fees shall be paid.’’ We
agree with the defendant that the cases are distinguishable from the facts
of the present case in which there is no mutual mistake, impossibility,
or impracticality.
24
Pursuant to New York Civil Practice Law and Rules 5015, New York
trial courts may relieve a party from the terms of a judgment on the grounds
of fraud or misrepresentation.
25
In Moore, the court relied on New York Civil Practice Law and Rules
3102 (c) to conclude that the plaintiff was entitled to preaction discovery.
Moore v. Moore, supra, 2015 WL 4530304, *8. New York Civil Practice Law
and Rules 3102 (c), which applies to all civil matters, provides: ‘‘Before
action commenced. Before an action is commenced, disclosure to aid in
bringing an action, to preserve information or to aid in arbitration, may be
obtained, but only by court order. The court may appoint a referee to take
testimony.’’ In Connecticut, preaction discovery may be obtained by means
of an equitable bill of discovery. See Berger v. Cuomo, 230 Conn. 1, 5–6,
644 A.2d 333 (1994). The plaintiff in the present case has not pursued an
equitable bill of discovery.