Billington v. Billington

• Decision Date: 20 August 1991
• Docket Number: No. 14143,14143
• Citation: 595 A.2d 1377,220 Conn. 212
• Parties: Jeri L. BILLINGTON v. Randall J. BILLINGTON.
• Court: Connecticut Supreme Court

Page 1377

595 A.2d 1377

220 Conn. 212

Jeri L. BILLINGTON v. Randall J. BILLINGTON.

No. 14143.

Supreme Court of Connecticut.

Argued June 6, 1991.

Decided Aug. 20, 1991.

Gerald L. Garlick, with whom, on the brief, was Alan Saltzman, Hartford, for appellant (plaintiff).

Randall J. Billington, pro se, for appellee (defendant).

C. Ian McLachlan, William H. Narwold, and Laura B. Welch, Hartford, filed a brief for Connecticut Chapter of American Academy of Matrimonial Lawyers as amicus curiae.

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and BORDEN, JJ.

BORDEN, Associate Justice.

The principal issue in this certified appeal ¹ is whether a party to a marital dissolution judgment must establish, in order subsequently to open the judgment based upon a claim of fraud, that she was diligent during the original action in attempting to discover the fraud. We conclude that the movant need not establish such diligence, and accordingly reverse the judgment of the Appellate Court.

For purposes of this appeal, we accept the facts as stated by the Appellate Court. On June 19, 1987, the parties' marriage was dissolved pursuant to a stipulated judgment; Mihalakos, J.; that incorporated by reference a settlement agreement between the parties. "During the negotiations preceding the dissolution, the parties agreed to apportion between them certain pieces of real estate. The defendant [Randall J. Billington] received residential property located on Ellsworth Avenue in New Haven, and the plaintiff [Jeri L. Billington] received other real property of supposedly equal value. On his financial affidavit, the defendant assigned the Ellsworth Avenue property a value of $225,000. He failed, however, to disclose the fact that he had received a written offer of $380,000 for the parcel. On June 22, 1987, three days after the parties' marriage was dissolved, the defendant accepted the offer and later conveyed the property for a renegotiated price of $360,000.

"The parties conducted their settlement negotiations in an atmosphere of mutual distrust and suspicion. Despite the contentiousness of the discussions, neither party obtained an independent appraisal of their real estate, nor did either party file motions for discovery or requests for production. Thus, the plaintiff did not discover the defendant's arrangement to sell the property until September or October, 1987." Billington v. Billington, 23 Conn.App. 45, 46-47, 578 A.2d 674 (1990).

In December, 1988, the plaintiff moved to open the judgment, claiming that the defendant had fraudulently concealed the value of the Ellsworth Avenue property. ² Id., at 47, 578 A.2d 674. The trial court, Harrigan, J., found that the plaintiff had established fraud by nondisclosure and by misrepresentation. The court also found that there were no laches or unreasonable delay on the plaintiff's part, that she had not lacked diligence in attempting to discover the fraud, ³ that the fraud had been proven by clear and satisfactory evidence, and that there was a substantial likelihood that the result of a new hearing would be different. Accordingly, the court granted the plaintiff's motion as to the financial orders incident to the dissolution judgment, and ordered a new hearing with respect to those orders. ⁴ After the trial court, F. Freedman, J., issued new financial orders, the defendant appealed from the new judgment to the Appellate Court.

The Appellate Court, relying principally on this court's decisions in Jucker v. Jucker, 190 Conn. 674, 677, 461 A.2d 1384 (1983), and Varley v. Varley, 180 Conn. 1, 4, 428 A.2d 317 (1980), agreed with the defendant that the plaintiff was barred from opening the judgment because she had not established that she had been diligent in attempting to discover the fraud. ⁵ Although the Appellate Court agreed with the trial court's finding that the defendant "could not have reasonably believed that the Ellsworth Avenue property was worth only $225,000," it determined that the plaintiff "made absolutely no effort to protect herself from the fraud of which she now complains." Billington v. Billington, supra, 23 Conn.App. at 48, 578 A.2d 674. The court reasoned that, had the plaintiff utilized available discovery procedures she would probably have learned of the defendant's negotiations to sell the property for more than its listed value, and, had she secured an appraisal, she would have discovered that the defendant had substantially undervalued the property. Id.

The Appellate Court distinguished its earlier decision in Greger v. Greger, 22 Conn.App. 596, 578 A.2d 162, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990), in which it had reached a contrary result on a similar set of facts. The court concluded that, unlike this case, the trial court in Greger had explicitly found that the defendant had perpetrated a fraud on the court, and that the absence of such a finding in this case was significant. Billington v. Billington, supra, 23 Conn.App. at 49, 578 A.2d 674. Accordingly, the Appellate Court reversed the new judgment and remanded the case with direction to reinstate the original judgment. Id. This appeal followed.

We granted certification in order to determine: (1) whether our law should continue to require a marital litigant to exercise diligence in discovering her marital partner's fraud as a condition of opening a judgment concerning the financial aspects of the dissolution of their marriage on the basis of that fraud; and (2) in this context, whether there should be a difference between fraud on the court and fraud on the adverse party. For the reasons that follow, we conclude that a requirement of diligence in the discovery of marital fraud should be abandoned, but that the concept of a fraud on the court is properly confined to situations where both of the parties intentionally conceal material information from the court.

I

We turn now to the first certified issue. " '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.' " Alexander v. Church, 53 Conn. 561, 562, 4 A. 103 (1886), quoting T. Cooley, Torts p. 474. 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. Maturo v. Gerard, 196 Conn. 584, 587, 494 A.2d 1199 (1985); Miller v. Appleby, 183 Conn. 51, 54-55, 438 A.2d 811 (1981). A marital judgment based upon a stipulation may be opened if the stipulation, and thus the judgment, was obtained by fraud. Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980). "The power of the court to vacate a judgment for fraud is regarded as inherent and independent of statutory provisions authorizing the opening of judgments; hence judgments obtained by fraud may be attacked at any time." Id.

In Varley v. Varley, supra, 180 Conn. at 4, 428 A.2d 317, we imposed four limitations on the granting of relief from a marital judgment secured by fraud: "(1) There must have been no laches or unreasonable delay by the injured party after the fraud was discovered. (2) There must have been diligence in the original action, that is, diligence in trying to discover and expose the fraud. (3) There must be clear proof of the perjury or fraud. (4) There must be a substantial likelihood that the result of the new trial will be different." ⁶ We reiterated those four limitations in Jucker v. Jucker, supra, 190 Conn. at 677, 461 A.2d 1384. The Appellate Court has applied these limitations as well. See Gelinas v. Gelinas, 10 Conn.App. 167, 174, 522 A.2d 295, cert. denied, 204 Conn. 802, 525 A.2d 965 (1987); Grayson v. Grayson, 4 Conn.App. 275, 286, 494 A.2d 576 (1985); Jackson v. Jackson, 2 Conn.App. 179, 189, 478 A.2d 1026 (1984); but see Greger v. Greger, supra, 22 Conn.App. at 599-600, 578 A.2d 162 (express finding of fraud on court required that judgment be opened without regard to four limitations). In this case, we are concerned only with the second of these limitations, namely, that the party seeking to open the judgment exercised diligence in the original action in order to discover and expose the fraud. We are persuaded that the time has come to abandon that limitation.

First, the authorities upon which Varley relied for the "diligence" limitation; F. James, Civil Procedure (1965) § 11.7, pp. 540-42; note, 36 Ill.L.Rev. 894, 896-97 (1942); Restatement (Second), Judgments § 116 (Tent. Draft No. 6, 1979); were drawn primarily from the commercial context, and did not address the special considerations that are inherent in litigation over the dissolution of a marriage. Indeed, we have recognized that "[a]nalogies drawn from commercial litigation fail to respond adequately to the situation of emotional trauma commonly associated with the irretrievable breakdown of a marriage." Monroe v. Monroe, 177 Conn. 173, 182, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979); see also Grayson v. Grayson, supra, 4 Conn.App. at 298, 494 A.2d 576. The established principle that due diligence is required in commercial transactions therefore has no applicability in the marital context.

Furthermore, the diligence requirement is inconsistent with the nature of a marital dissolution case and with the rights and obligations arising out of the marital relationship that it legally terminates. Our Practice Book has 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." Practice Book § 463. The opposing party is required to file a similar affidavit "at lease...