Fitzsimons v. Fitzsimons

• Decision Date: 11 August 2009
• Docket Number: No. 29919.,29919.
• Citation: 975 A.2d 729,116 Conn.App. 449
• Court: Connecticut Court of Appeals
• Parties: Lori FITZSIMONS v. Stephen FITZSIMONS.

975 A.2d 729

116 Conn.App. 449

Lori FITZSIMONS v. Stephen FITZSIMONS.

No. 29919.

Appellate Court of Connecticut.

Argued June 2, 2009.

Decided August 11, 2009.

Pamela A. Olejarczyk, for the appellant (defendant).

David N. Rubin, for the appellee (plaintiff).

FLYNN, C.J., and ALVORD and HENNESSY, Js.

ALVORD, J.

In this marital dissolution action, the defendant, Stephen Fitzsimons, appeals from the judgment of the trial court with respect to the court's financial orders. Specifically, the defendant claims that the court abused its discretion by (1) modifying the marital property division postjudgment and (2) awarding the plaintiff, Lori Fitzsimons, relief not claimed by her at trial. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant's appeal. The parties were married on March 23, 1991, and had three minor children as of the date of dissolution. In November, 2006, the plaintiff filed a complaint seeking a dissolution of her marriage to the defendant, alleging that their marriage had broken down irretrievably. The parties entered into a custody agreement on February 28, 2008, which the court found to be fair and equitable. The parties were unable, however, to resolve the issues of alimony, child support and the division of property and debts. The court held a limited contested hearing on those issues on February 28, 2008.

The plaintiff suggested in her proposed orders that the defendant vacate the marital residence on or before June 1, 2008, and that she retain exclusive possession of the marital residence until the parties' youngest child reached the age of eighteen.¹ The plaintiff further proposed that she pay the mortgage, insurance, taxes and utilities for the property during that period as well as repairs costing less than $500. She also proposed that the defendant be permitted to retain personal property with a combined value of $80,864 to provide him with funds to relocate.² Finally, the plaintiff proposed that upon the youngest child's attainment of the age of eighteen, the house be sold and the net proceeds shared equally by the parties.

The defendant's proposed orders provided in relevant part that the plaintiff would quitclaim her interest in the marital residence to the defendant. In exchange, the defendant offered to refinance the property within sixty days, pay the existing mortgages in full and pay the plaintiff half of the net equity in the property.

The court issued its memorandum of decision on March 14, 2008. The court found that "[t]he journey to an irretrievable breakdown began in about 1997, when the [defendant] began to drink too much and too often. He consumed alcohol almost daily. His consumption increased in frequency and quantity. He drank to an excess. He easily consumed a thirty pack of beer in two days. When he drank, he became controlling. His mood changed in direct relation to the amount of alcohol he consumed. He became increasingly argumentative and angry. His anger seemed to `come from out of nowhere.' He was unabashedly insulting, demeaning and verbally abusive toward the [plaintiff] in private and in public. In the presence of company, guests friends, their children and other children, he called her vulgar and vile names, humiliated her and degraded and debased her. She never argued back. She never called him derogatory names. She never reacted, retorted or responded to him in kind. Many times he reduced her to tears in front of their friends and children. His unfettered alcohol consumption and behavior toward her while consuming alcohol is the principal cause of the breakdown of the marriage.

"They jointly own the marital residence at 165 Meadowside Road in Milford. Its fair market value is $320,000. There is a balance of $126,500 due on a first mortgage. There is [a] balance of $11,203 due on a home equity line of credit secured by a second mortgage. The equity value of the home is $182,298.

"Both parties contributed significantly and substantially to the acquisition, preservation, expenses and appreciation of the home. The [plaintiff] wants to remain in the home until their youngest child's eighteenth birthday, and the right to sell (at her discretion) the property on or before the youngest child's eighteenth birthday and then equally divide the net proceeds. The [defendant] also wants to retain and remain in the home. He has qualified for a refinance mortgage loan in the amount of $220,000. He is able to refinance the property within sixty days and is willing to pay the [plaintiff] half of the `net equity.'"

In its decision, the court ordered that "[t]he [defendant] shall immediately refinance the marital home ... and terminate the [plaintiff's] liability on the existing first mortgage and the ... home equity line of credit by May 30, 2007.... The [plaintiff] shall cooperate with the [defendant] to effectuate a refinance of the property. She shall quitclaim all of her interest in the real property to the [defendant] for that purpose. He shall pay to the [plaintiff] by May 30, 2008, the sum of ... $91,149.00 ... as her share of the equity in the property upon refinancing it."³

The plaintiff filed a postjudgment motion to reargue on March 20, 2008. The plaintiff argued, inter alia, that, in light of the defendant's fault in causing the breakdown of the marriage and because the court declined to allow her to remain in the house until her youngest child reached the age of eighteen, she should be awarded a greater share of the equity in the marital residence. The plaintiff requested that she be awarded 60 percent and the defendant 40 percent. The court granted the plaintiff's motion to reargue, conducted a hearing on April 14, 2008,⁴ and opened the judgment.

On April 16, 2008, the court issued a decision on the plaintiff's motion. The court found that "[u]pon reconsideration, the court agrees with the plaintiff that the defendant's conduct should not be weighed equally with the other relevant statutory criteria and should be accorded greater consideration in the division of the equity in the marital home by awarding the plaintiff a greater share (60 percent) and a lesser share (40 percent) to the defendant." The court modified its order to provide that "the payment to the plaintiff by the defendant pursuant to ... the memorandum of decision rendering judgment, dated March 14, 2008, shall be $109,379."

On May 6, 2008, the defendant filed a postjudgment motion to reargue. The defendant argued that the March 14, 2008 decision "granted the equal split sought by both parties in their respective statements of claim." (Emphasis in original.) In addition, the defendant argued that "[nowhere] did the plaintiff seek for a disparate split of the marital equity; moreover, virtually all of the relief sought by the plaintiff was granted by the first memorandum of decision, and no further consideration should have been given." The court denied the motion, stating that "[c]ounsel [and the] parties had the opportunity to present all of their claims and arguments at the time of the hearing on the reargument on [April 14, 2008]."

I

First, the defendant claims that the court abused its discretion by modifying the marital property division postjudgment. Specifically, the defendant argues that a division of marital property is not subject to postjudgment modification absent fraud or mutual mistake. We disagree.

It is well settled that a civil judgment of the Superior Court may be opened if a motion to open or set aside is filed within four months of the issuance of a judgment. Passamano v. Passamano, 228 Conn. 85, 88 n. 4, 634 A.2d 891 (1993); Bunche v. Bunche, 180 Conn. 285, 287-88, 429 A.2d 874 (1980); Martin v. Martin, 99 Conn.App. 145, 155-56, 913 A.2d 451(2007); Richards v. Richards, 78 Conn. App. 734, 739-40, 829 A.2d 60, cert. denied, 266 Conn. 922, 835 A.2d 473 (2003). "A motion to open a judgment is governed by General Statutes § 52-212a and Practice Book § 17-4. Section 52-212a provides in relevant part: `Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed... .' Practice Book § 17-4 states essentially the same rule." Richards v. Richards, supra, at 739-40, 829 A.2d 60.

In the present case, the motion to reargue⁵ was filed on March 20, 2008, six days after the memorandum of decision was filed. Accordingly, it was filed within the four month requirement of § 52-212a. Under those circumstances, the court was vested with the discretion to modify its property division.

"Within four months of the date of the original judgment, Practice Book [§ 17-4] vests discretion in the trial court to determine whether there is a good and compelling reason for its modification or vacation.... The exercise of equitable authority is vested in the discretion of the trial court and is subject only to limited review on appeal.... 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. The only issue on appeal is 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 reasonable presumption in favor of its action." (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 94-95, 952 A.2d 1 (2008). In light of the court's finding, upon reconsideration, that the defendant's conduct in causing the irretrievable breakdown of the parties' marriage should be taken into consideration in the division of the equity in the marital home, we cannot say that awarding the plaintiff an additional 10 percent of that equity was an abuse of the court...