Grayson v. Grayson, 2614

• Decision Date: 18 June 1985
• Docket Number: No. 2614,2614
• Citation: 494 A.2d 576,4 Conn.App. 275
• Court: Connecticut Court of Appeals
• Parties: Arthur I. GRAYSON v. Elyn K. GRAYSON.

Page 576

494 A.2d 576

4 Conn.App. 275

Arthur I. GRAYSON v. Elyn K. GRAYSON.

No. 2614.

Appellate Court of Connecticut.

Argued Feb. 5, 1985.

Decided June 18, 1985.

Wesley W. Horton, Hartford, with whom was Susan M. Cormier, Hartford, for appellant (defendant).

Lawrence P. Weisman, Westport, with whom, on the brief, was Ellen B. Lubell, Westport, for appellee (plaintiff).

Before DUPONT, C.P.J., and HULL and BORDEN, JJ.

HULL, Judge.

The defendant wife appeals from the judgment of the trial court denying her motion to open a judgment of dissolution on the ground of fraud in the plaintiff husband's affidavit. The original judgment was based on the oral stipulation of the parties, made in open court. The defendant's major claims are three: (1) that the defendant was denied a fair hearing because the court's twenty-three paragraph factual statement was taken verbatim from the plaintiff's proposed findings of fact submitted to the trial court after the hearing on the motion to open; (2) that the court's findings of fact were unsupported by the evidence and thereby were clearly erroneous; and (3) that the court erred in its conclusion that the defendant did not meet the requirements for opening a judgment based on fraud. Boiled down, the latter two issues merge into the single issue of whether the court's judgment was clearly erroneous. Practice Book § 3060D. ¹ We conclude that the defendant was not denied a fair hearing and that the judgment was not clearly erroneous. We, therefore, find no error.

There is no dispute about the procedural background of this case. On May 28, 1981, the third day of the dissolution trial, the court, Hon. William L. Tierney, Jr., state trial referee, dissolved the thirty year marriage of the parties incorporating into the judgment an oral settlement, stipulated to by the parties, regarding the division of property and nonmodifiable alimony. The plaintiff, fifty-six years old at the time, was a graduate of the Wharton School of Finance and Columbia Law School who had been successfully involved for many years in business for himself. The defendant, fifty-three years old, was a graduate of Simmons College and is the sole shareholder and employee of Minuteman Realty Company. The parties have three grown children.

The plaintiffs' chief vehicle for his various business interests was Grayson Associates, Inc., a Connecticut corporation of which he was the sole shareholder. With immaterial exceptions, all of his various forms of income and investment funneled through this conduit, which he controlled totally. He was a general partner in three limited partnerships operating three bowling centers, Nutmeg Bowl, Colonial Lanes, and Laurel Lanes, the profits from which were paid to Grayson Associates, Inc. He was also the sole shareholder in three corporations operating lounges associated with these bowling centers, the profits from which were turned over to the bowling centers. Grayson Associates, Inc., provided the plaintiff with a salary, a profit sharing plan which, among other investments, was also a limited partner in the three bowling centers, and a deferred benefit pension plan which was also a limited partner in the three bowling centers.

The stipulated judgment ordered the plaintiff to pay to the defendant lump sum alimony of $150,000, payable in installments of $50,000 by June 28, 1981, $50,000 by August 28, 1981, both of which have been paid, and $50,000 by February 28, 1982, which the plaintiff has paid into escrow pending the outcome of this appeal, together with nonmodifiable periodic alimony of $12,000 per year. The plaintiff was also ordered to pay $15,000 as part of the defendant's attorney's fees and to maintain a $50,000 life insurance policy on his life owned by the defendant and payable to her. The defendant was ordered to transfer her one half interest in a business building at 636 Kings Highway, Fairfield, to the plaintiff, the equity in which he claimed was $50,000. The defendant was required to relinquish her claim in the amount of $27,000 to a certificate of deposit managed by the plaintiff. The defendant was awarded full ownership of Daniel Oil, which the plaintiff's affidavit claimed produced an income of $18,000 per year. Works of art valued by the plaintiff at $64,700 were ordered divided between the parties. Otherwise, each was to retain substantial other assets shown on their affidavits. The principal asset shown by the plaintiff's affidavit is the valuation, after taxes due on liquidation, of his pension plan in Grayson Associates, Inc., at $340,152 and the principal asset shown by the defendant's affidavit is the former family residence at 15 Berkeley Road, Westport, in which the claimed equity was $167,000.

On September 23, 1981, the defendant moved to open the judgment rendered on May 28, 1981 on the ground that the stipulated agreement was based upon a fraudulent affidavit of May 26, 1981, submitted by the plaintiff to the court and to the defendant. ² Extensive discovery was conducted by the defendant prior to the dissolution and the evidentiary hearing on this matter. Depositions were taken, and the defendant used the services of an accountant, an actuary and a bowling expert. Her accountant examined records at the office of the plaintiff. The trial court, Jacobson, J., held hearings on the motion to open on June 1, June 2, July 27, and August 17, 1983.

The plaintiff filed a memorandum on September 1, 1983, including a requested finding of facts of twenty-three numbered paragraphs. The defendant filed no such request and did not object to the plaintiff's filing of such a request. On September 19, 1983, the court filed a memorandum of decision which adopted the plaintiff's requested findings of fact verbatim except that in paragraph nineteen there is an apparent typographical error in that the reference to the plaintiff's 1981 income should refer to his 1982 income. ³

At the hearing on this appeal, the defendant did not argue that this procedure denied her a fair trial, in view of the holding in Cameron v. Avonridge, Inc., 3 Conn.App. 230, 235, 486 A.2d 661 (1985). The defendant claimed, however, that the present case points out the wisdom of the Cameron court's reference to the "hazards that may result from such a practice." More specifically, she argues that the findings were advocate oriented, were found without evidence, and were ambiguous. ⁴ The court stated in Cameron that "[t]he plaintiffs, relying on United States v. Forness, 125 F.2d 928 (2d Cir.), cert. denied sub nom. City of Salamanca v. United States, 316 U.S. 694, 62 S.Ct. 1293, 86 L.Ed. 1764 (1942), claim that the trial court erred in adopting the language in the defendant's brief as its memorandum of decision. United States v. Forness, supra, 942, states that 'a comparison of the findings with the opinion seems to show that the findings proposed by the defendants were mechanically adopted, with the consequence that some of the findings made by the district court are not supported by the evidence and not substantially in accord with the opinion.' The case does not condemn the use of language in a brief of one of the parties but points out the hazards that may result. Here, the trial court specifically acknowledged in its memorandum of decision that it relied heavily on the defendant's trial brief because the facts and legal theories advanced therein were consistent with the court's views, and it did not believe that it could improve on the defendant's language. Although we do not approve of this practice, we cannot find that it resulted in less than a fair trial. Nor was there any manifest abuse of discretion or injustice. See Long v. Schull, 184 Conn. 252, 257-58, 439 A.2d 975 (1981)." Cameron v. Avonridge, Inc., supra, 3 Conn.App. at 235, 486 A.2d 661.

In the leading case of United States v. Forness, supra, the court, while reversing the District Court on other grounds, stated the reasons for disapproving such a practice, in part, as follows: "We stress this matter because of the grave importance of fact-finding. The correct finding, as near as may be, of the facts of a law suit is fully as important as the application of the correct legal rules to the facts as found. An impeccably 'right' legal rule applied to the 'wrong' facts yields a decision which is as faulty as one which results from the application of the 'wrong' legal rule to the 'right' facts. The latter type of error, indeed, can be corrected on appeal. But the former is not subject to such correction unless the appellant overcomes the heavy burden of showing that the findings of fact are 'clearly erroneous.' " Id., 942.

"It is sometimes said that the requirement that the trial judge file findings of fact is for the convenience of the upper courts. While it does serve that end, it has a far more important purpose--that of evoking care on the part of the trial judge in ascertaining the facts." Id.

We can add little to this statement except to note that the practice of adopting parties' proposed findings of fact invites error or sloppy analysis on the judge's part. More importantly, the appearance of justice is just as important as the reality, and a verbatim adoption of the facts proferred by one of the advocates invites a public suspicion of the trial court's decision. The perceptions by the public and by the losing litigant of our system of justice are surely not enhanced by such a practice.

In expressing our strong disapproval of such a procedure, we in no way impugn the trial judge in this case. Counsel at the hearing on this appeal made it clear that no attack was being made on the integrity or competency of the trial judge.

The court in Cameron v. Avonridge, Inc., supra, noted that the trial court specifically acknowledged its heavy reliance on the defendant's trial brief in its memorandum of decision. No comment to that effect was made by the trial court in this case. Although the use of such a...