Gershon v. Back

• Decision Date: 21 February 2023
• Docket Number: SC 20599
• Citation: 346 Conn. 181,288 A.3d 602
• Parties: Elana GERSHON v. Ronald BACK
• Court: Connecticut Supreme Court

346 Conn. 181

288 A.3d 602

Elana GERSHON

v.Ronald BACK

SC 20599

Supreme Court of Connecticut.

Argued October 13, 2022

Officially Released February 21, 2023

James P. Sexton, Hartford, with whom were Julia K. Conlin and, on the brief, John R. Weikart, for the appellant (plaintiff).

Kenneth J. Bartschi, with whom were Karen L. Dowd and, on the brief, Wesley W. Horton, Hartford, and Joseph T. O'Connor, Stamford, for the appellees (defendants).

McDonald, D'Auria, Mullins, Ecker and Alexander, Js.

ECKER, J.

New York's so-called "plenary action rule" requires a party seeking to modify or vacate a separation agreement that survives a final judgment of divorce to file a plenary action on the contract instead of a motion to open, modify or vacate the divorce judgment. This certified appeal requires us to determine whether New York's plenary action rule is procedural or substantive for choice of law purposes. The trial court concluded that the rule was substantive and dismissed for lack of subject matter jurisdiction the motion, filed by the plaintiff, Elana Gerson, to open and set aside the final judgment of divorce. The Appellate Court agreed that the New York rule was substantive but disagreed that the trial court lacked subject matter jurisdiction and, therefore, concluded that the plaintiff's motion should have been denied instead of dismissed. Gershon v. Back , 201 Conn. App. 225, 253–54, 242 A.3d 481 (2020). We affirm the judgment of the Appellate Court.

This case has a long and contentious history. The plaintiff and the defendant, Ronald Back,¹ were married on August 16, 1997. Prior to their marriage, the parties entered into a prenuptial agreement, pursuant to which the plaintiff waived her interest in the defendant's separate property, including his business interest in Flavormatic Industries (Flavormatic). During their marriage, the parties resided in New York and had two children. In February, 2009, the parties separated, and the plaintiff commenced a divorce action in the New York Supreme Court (New York court). The plaintiff challenged the enforceability of the prenuptial agreement, but the New York court rejected the plaintiff's claim, finding that she "had presented no evidence establishing that the prenuptial agreement was procured by the defendant's fraud or overreaching." (Emphasis omitted; internal quotation marks omitted.)

In April, 2011, during their divorce trial, the parties settled their dispute by entering into a "[s]tipulation of [s]ettlement and [a]greement" (separation agreement), which superseded the prenuptial agreement and resolved the parties’ "respective financial and property rights, support, and all other respective rights, remedies, privileges and obligations to each other, arising out of the marriage ...." Pursuant to the separation agreement, the parties agreed to keep their own separate property and the income and appreciation thereof "free from any claim whatsoever from the other party." Additionally, the parties agreed to waive their respective rights to each other's retirement accounts and to divide the proceeds of the sale of the marital residence. The defendant also agreed to pay the plaintiff $400,000 "[a]s further equitable distribution of the parties’ assets ...." The separation agreement contains a choice of law provision, which provides 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."

The separation agreement incorporates New York's plenary action rule by explicitly providing that it "shall not be invalidated or otherwise affected by any decree or judgment of separation or divorce made by any court in any action [that] may presently exist or may hereafter be instituted by either party against the other for a separation or divorce, and the obligations and covenants of this [a]greement shall survive any decree or judgment of separation or divorce and shall not merge therein, and this [a]greement may be enforced independently of such decree or judgment." The separation agreement also states that "[b]oth parties agree, stipulate and consent that no judgment, order or decree in any action for divorce or separation, whether brought in the [s]tate of New York, or in any other state or country having jurisdiction [over] the parties hereto, shall make any provisions for alimony or child support or affect the property rights of either party in a manner inconsistent with the provisions of this [a]greement, but if any provision is made in any judgment, order or decree which is inconsistent with the provisions of this [a]greement, or imposes a different or greater obligation on either of the parties hereto than provided in this [a]greement, the provisions of this [a]greement shall take precedence and shall be the primary obligation of both of the parties hereto. It is further agreed that upon the trial of any action [that] may hereafter be instituted by either of the parties against the other for an absolute divorce in any court of competent jurisdiction, the party instituting such action shall read the provisions of this [a]greement relating to maintenance and support into the record of such action as a stipulation between the parties as to the questions of maintenance and support. Such party shall further request that the decree shall contain a provision specifically reciting, in words or substance, ‘said [a]greement is not merged in, but survives this decree, and the parties thereof are hereby ordered to comply with it on its terms at all times and places.’ "

On May 11, 2011, the New York court dissolved the parties’ marriage in a final judgment of divorce, which incorporated the separation agreement by reference but provided that the separation agreement "shall survive and shall not be merged in this judgment ...." The judgment of divorce further stated that "jurisdiction over all matters affecting the execution, interpretation, performance and enforcement of this judgment [and/or] the [separation agreement] ... shall be as specifically provided by the parties’ [separation agreement]."

The plaintiff remarried three days later and moved to Greenwich with her new husband and the parties’ children. The defendant later remarried and moved to Connecticut, as well. On October 27, 2014, the plaintiff registered the final judgment of divorce in the Superior Court in the judicial district of Stamford-Norwalk pursuant to General Statutes § 46b-71.²

Extensive litigation in the Superior Court followed. In November, 2014, the plaintiff moved to modify the judgment to increase the defendant's child support obligations, arguing that "there has been a substantial change in circumstances since the date of judgment in that three years have passed since the order was entered ... and the defendant's income has increased by at least [15] percent ...."³ In connection with this motion, the plaintiff obtained discovery regarding the defendant's finances for the three years preceding the filing of the motion. Following full disclosure of the parties’ respective finances, the trial court granted the plaintiff's motion, increased the defendant's child support obligation, and awarded the plaintiff attorney's fees.

After the trial court's order issued, there was a flurry of further litigation, including motions for reargument filed by both parties, the defendant's motion to offset his child support obligation with a credit for college room and board expenses, and the plaintiff's motions for contempt due to the defendant's failure to pay the retroactive amount of his increased child support obligation and the plaintiff's attorney's fees. The trial court denied the motions for reargument, granted the defendant's motion for a credit, and denied the plaintiff's motions for contempt.

The plaintiff then filed a motion to open and set aside the divorce judgment, which is the operative motion at issue in this appeal. In her motion, the plaintiff claimed that she had learned during the modification proceeding that the divorce judgment "was obtained through the fraudulent conduct of the defendant" in that he "made material misrepresentations of fact to the court and to the plaintiff in his sworn financial statement provided at the time of the settlement." Specifically, referring to the defendant's "[a]ttached 2010 [i]ncome [i]nformation," the plaintiff alleged that the defendant's sworn statement of net worth dated April 1, 2011, listed his gross income for the year 2011 as "0.00," even though his W-2 form reported wages from Flavormatic in the amount of $1,900,000 in 2011.⁴ (Emphasis omitted; internal quotation marks omitted.) The plaintiff further alleged that the defendant "stockpiled money in his corporation in order to avoid equitable distribution of marital assets and to avoid paying alimony and child support." (Emphasis omitted.) According to the plaintiff, "there is a reasonable probability that the result of the settlement would have been different had the defendant not made material misrepresentations of fact ...." The plaintiff's motion asked the court to open the final judgment of divorce, to vacate the settlement agreement, to order a new trial, and to award the plaintiff attorney's fees. In an accompanying memorandum of law, the plaintiff requested postjudgment discovery, arguing that she had met her burden under Oneglia v. Oneglia , 14 Conn. App. 267, 540 A.2d 713 (1988), of demonstrating sufficient indicia of fraud to justify opening the judgment and conducting further discovery. See id., at 270, 540 A.2d 713 (plaintiff was permitted to conduct postjudgment discovery if she "was able to substantiate her allegations of fraud beyond mere suspicion").

The defendant opposed the plaintiff's motion to open, arguing that the plaintiff had failed to state a claim for fraud or misrepresentation under New York law because the defendant's 2011 statement of net...