Pinkney v. Griffin, No. FA 97-0716925 (CT 11/30/2004)
| Decision Date | 30 November 2004 |
| Docket Number | No. FA 97-0716925,FA 97-0716925 |
| Court | Connecticut Supreme Court |
| Parties | Patricia Pinkney v. Anthony Griffin Opinion No.: 86723 |
The plaintiff (hereinafter also "Pinkney") and the defendant (hereinafter also "Griffin") entered into a separation agreement dated December 7, 1998 which served as the basis of the entry of a judgment of dissolution of marriage dated January 11, 1999, Brennan, JTR. Plaintiff has brought the motion to open based upon alleged fraud committed by the defendant in the separation agreement, the motion for contempt because of the defendant being allegedly in arrears in his child support payments and the defendant has brought his motion for modification of child support claiming a substantial change in circumstances in which the defendant is realizing less income from his occupation. These motions covered several days of trial, the plaintiff being represented by Attorney James Wing and the defendant by Attorney Brian Woolf, both of whom did an admirable job in presenting the issues on behalf of their clients. Testimony on these hearings ended on November 15, 2004.
The leading case on the issue of reopening a judgment based upon fraud is Weinstein v. Weinstein, 79 Conn.App. 638, 642 (2003). In that case the Court stated, inter alia: "A marital judgment based upon a stipulation may be opened if the stipulation, and thus the judgment, was obtained by fraud . . . A court's determination as to the elements of fraud are findings of fact that we will not disturb unless they are clearly erroneous.
The Court further stated: "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 . . ." Id. at 642.
Additionally, the Court stated: ". . . there must be clear proof of the fraud; . . ."
This Court bases most of its decision on the credibility of the witnesses which is based upon their appearance and demeanor on the witness stand, the consistency and inconsistency of their testimony, their memory or lack thereof of certain events, whether they were candid and forthright or evasive and incomplete, their manner in responding to questions and their interest or lack of interest in the case.
The short answer to this question is yes.
This Court finds the plaintiff to have been a credible witness. She was candid and forthright. The defendant, on the other hand, the Court finds, was not credible as a witness or party. His demeanor on the witness stand was atrocious. He was evasive, he was offensive, he was angry, he was volatile, and he remembered more than he said he did. His conduct was appalling, and his apologies from time to time rang hollow. He was simply not believable on several important issues.1
In addition, he acted as someone who is completely innocent of anything he had previously done or said and blamed it all on his prior attorneys and his accountants. At various times he was represented by Attorney Cheryl Canino, Attorney Joseph Elder, Attorney Mark Swerdloff, Attorney John Forrest, Attorney James Callaghan, and finally Attorney Brian Woolf. The Court does not believe that all of these attorneys misrepresented his positions and his figures on financial affidavits as well as other alleged facts propounded on his behalf. Mr. Griffin would have this Court believe that he was unaware of the reasons for Judge Thomas Bishop entering an order of child support of $282.00 per week at a lengthy hearing on March 4, 1998. However, not only was he properly represented by Attorney Canino, but the transcript of that hearing, which the Court has reviewed, (Court Exhibit 5) shows that Mr. Griffin himself fully participated in a dialogue with Judge Bishop and understood full well the basis on which the support award was issued.
Moreover, he received an IRS form 1099 for the year 1999 from Mo Heaven, Inc. showing income of $82,500 which he claims was in kind income in the form of clothing instead of cash. See plaintiff's Exhibit 3. However, this income was never declared on his income tax return. The Court does not believe that this was an omission by his accountant at the time but rather Griffin's failure to turn over the 1099 to his accountant.
His financial affidavits have been inaccurate. In his financial affidavit of May 18, 2004 he does not show as an asset the real estate that he owned. (Court Exhibit 2).
The fraud itself can be found in the Separation Agreement or Stipulation dated December 7, 1998.
The Separation Agreement is not only in the file, but is plaintiff's Exhibit 10. On page 5 as to child support, the agreement recites Judge Bishop's order of $282 per week child support on March 4, 1998. It further recites that the support obligation is agreed to be $187 per week effective retroactively to March 4, 1998, a difference of $95 per week. The agreement goes on to state that "The Defendant has declined to complete responses to Plaintiff's request for discovery and represents that his income differs from that stated in his sworn financial affidavit dated February 28, 1998 and that said affidavit was prepared in error by one of his prior attorneys." This was the affidavit showing income in his business of $2,180.18 per week. Judge Bishop, after deducting certain business expenses, concluded that his income was much less but enough in accordance with the Child Support Guidelines to come up with a figure of $282 per week. The plaintiff had a right to discovery, had a right to proceed with a forensic accounting to determine the value of a business known as "Anthony's Clothing." However, she gave up those rights in return for the definite child support order of $187 per week and on the basis that the defendant claimed that he had sold his business known as "Anthony's Clothing." The primary basis for the fraud claim is the following words in the Separation Agreement on page 7:
"In consideration of the Plaintiff's acquiescence in allowing support to be retroactively modified in the absence of proof of a change in circumstances and in further consideration of her waiving her right to proceed with a forensic accounting to determine the value of a business known as "Anthony's Clothing" which the defendant had previously indicated was his property on his Affidavit of February 28, 1998, but which he now states was sold more than two years ago, the parties agree that the $187-week child support order shall not be modifiable downward as to amount for one (1) year from the date of this agreement, except as provided for herein." (Emphasis added).
The plaintiff has admitted that he never sold Anthony's Clothing and that, therefore, the statement that it was sold more than two years ago is false. This statement meets the first criteria of Weinstein v. Weinstein, supra that a false date representation was made as a statement of fact. On September 21, 2004, Attorney James Callaghan, who represented the defendant at the time of signing the separation agreement testified that the defendant had told him that Anthony's Clothing had been sold to a group of investors including Ray Allen, the former University of Connecticut basketball star. This statement by the defendant to his attorney was, of course, false. Attorney Callaghan testified that he had discussions lasting several hours on December 6, 1998 and December 7, 1998 in which the sale of the business was discussed and he, Callaghan, believes that the defendant understood what he was saying. Further, Griffin's financial affidavit of December 7, 1998, plaintiff's Exhibit 11, does not have Anthony's Clothing listed as an asset. Attorney Callaghan testified on September 21, 2004 that in going over the financial affidavit, he asked Griffin if he had any other assets to which Griffin replied "no." Based upon Attorney Callaghan's testimony, which the Court believes, the Court finds that the statement made verbally to the plaintiff during the discussion prior to the execution of the separation agreement and the same statement that the business had been sold two years ago in the separation agreement were not only untrue but were known to be untrue by their maker, namely the defendant. It is also clear to this Court that the statement was made with the intent of inducing reliance thereon. It is clear from the wording on page 7 that the defendant by stating that he had sold Anthony's Clothing falsely claimed that it was not an asset so there could be no forensic accounting to determine its value. This was part of the misrepresentation that his income...
To continue reading
Request your trial