Gershon v. Back

• Citation: 201 Conn.App. 225,242 A.3d 481
• Decision Date: 10 November 2020
• Docket Number: AC 42778
• Court: Connecticut Court of Appeals
• Parties: Elana GERSHON v. Ronald BACK

201 Conn.App. 225

242 A.3d 481

Elana GERSHON

v.Ronald BACK

AC 42778

Appellate Court of Connecticut.

Argued May 20, 2020

Officially released November 10, 2020

Alexander J. Cuda, Westport, for the appellant (plaintiff).

Joseph T. O'Connor, Stamford, for the appellee (defendant).

Lavine, Bright and Beach, Js.^*

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 dissolution (motion to open) filed by the plaintiff, Elana Gershon, 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 governed 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 businessman 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 dissolution 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 proceedings, the parties engaged in extensive litigation, discovery, and negotiations regarding the prenuptial agreement, 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 further provided, among other things, that it was to be incorporated by reference, but not merged , in the judgment of dissolution and that it "may be enforced independently of such decree or judgment [of dissolution]."⁶

The stipulation also provided that "[a]ll matters affecting 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 plaintiff 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 connection 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 discovery. 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 specifically 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 suspicion of the defendant's alleged fraud,¹⁴ the court ordered the parties to appear for an Oneglia hearing on December 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 standard 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 December 4, 5, and 6, 2018. Both parties testified at the hearing, as well as the plaintiff's forensic accountant, Lee Sanderson. On December 21, 2018, counsel for the parties appeared for final arguments. Counsel for the plaintiff argued that the evidence demonstrated that the defendant had failed to disclose significant assets at the time the stipulation was negotiated. Counsel for the defendant argued that eight years after the plaintiff had received the benefits of the stipulation, she was precluded 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 plaintiff 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 demonstrated 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 conduct discovery of the defendant's finances. As a preliminary matter, the court stated that two facts were critical to its decision, to wit: (1) the stipulation was incorporated 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. at 269–70, 540 A.2d 713. 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...