Terry v. Terry

• Decision Date: 03 July 2007
• Docket Number: No. 26843.,26843.
• Citation: 102 Conn.App. 215,925 A.2d 375
• Court: Connecticut Court of Appeals
• Parties: Cheryl TERRY v. William TERRY.

925 A.2d 375

102 Conn.App. 215

Cheryl TERRY v. William TERRY.

No. 26843.

Appellate Court of Connecticut.

Argued March 22, 2007.

Decided July 3, 2007.

Campbell D. Barrett, with whom were Kevin W. Hadfield and, on the brief, C. Michael Budlong, Hartford, for the appellant (defendant).

Ralph J. Monaco, with whom, on the brief, was Thomas J. Londregan, New London, for the appellee (plaintiff).

FLYNN, C.J., and BISHOP and DiPENTIMA, Js.

FLYNN, C.J.

The defendant, William Terry, appeals from the postjudgment orders of the trial court issued after the dissolution of his marriage to the plaintiff, Cheryl Terry. On appeal, the defendant claims that the court (1) improperly denied his motion to open the dissolution judgment on the basis of fraud or mutual mistake and (2) improperly denied his motion to vacate or reargue the denial of his motion to open. 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 August 30, 1981. A dissolution action was filed in 1997, and a judgment of dissolution was rendered on July 20, 1999. On June 23, 2005, the defendant filed a postjudgment motion to open and modify the judgment of dissolution. The defendant claimed that the judgment should be opened on the basis of fraud or mutual mistake because the plaintiff had failed to list the existence of a pending civil lawsuit on the sworn financial affidavit that she had filed at the time of the dissolution trial. The defendant requested that he be allocated a portion of the lawsuit proceeds.

The circumstances that gave rise to the lawsuit, which is at the center of this appeal, began in July, 1998. During that time, the plaintiff owned a school bus company and submitted a bid to the city of Hartford (city) in response to an invitation to bid for a proposed contract to provide bus transportation services for Hartford public schools. Cheryl Terry Enterprises, Ltd. v. Hartford, 270 Conn. 619, 623, 854 A.2d 1066 (2004). Her bid was rejected by the city, despite being the lowest bid. Id. Thereafter, in July, 1998, the plaintiff filed an action alleging, inter alia, equal protection and antitrust violations against the city, seeking money damages as well as temporary and permanent injunctive relief preventing the city from awarding the contract to any company other than itself. Id. The plaintiff's request for a temporary injunction was denied. Id.

In July, 1998, a hearing was held in the parties' dissolution action concerning the sale of the plaintiff's other two bus companies, and at that hearing the subject of the action against the city was discussed in open court before the defendant and his counsel. Additionally, the entire file pertaining to that action was turned over to the defendant's counsel prior to the final hearings in the dissolution matter.

In April, 1999, the plaintiff filed her financial affidavit. Although the plaintiff's financial affidavit listed assets of almost $2 million and liabilities of only approximately $170,000, the lawsuit against the city was not listed as an asset or a contingent asset.

The court rendered a judgment of dissolution in July, 1999. The decision of the court provided for the distribution of the parties' assets and the custody of their minor child.

The lawsuit against the city proceeded, and, on February 3, 2000, the plaintiff authorized her attorneys to file an offer of judgment for $25,000. If the city had accepted the offer, then pursuant to the statute in effect at the time of the offer, namely, General Statutes (Rev. to 1999) § 52-192a (a), and Practice Book (2000) § 17-14, judgment would have entered in the plaintiff's favor for $25,000.¹ The court granted the city's motion for a directed verdict on all of the counts in the plaintiff's complaint, with the exception of the antitrust claim, which went to the jury. Cheryl Terry Enterprises, Ltd. v. Hartford, supra, 270 Conn. at 619, 854 A.2d 1066. The jury returned a verdict in favor of the plaintiff for $500,000 on that claim. Thereafter, the court granted the city's motion to set aside the verdict.

Prior to the resolution of the claim for permanent injunctive relief, the plaintiff appealed from the judgment of the trial court setting aside the verdict on the antitrust claim. See Cheryl Terry Enterprises, Ltd. v. Hartford, 262 Conn. 240, 811 A.2d 1272 (2002).² Our Supreme Court dismissed the appeal, concluding that the plaintiff had not appealed from a final judgment because the claim for injunctive relief had not been determined. Id., at 242, 811 A.2d 1272. The case thereafter was reclaimed to the trial list, the trial court denied the plaintiff's request for a mandatory injunction to prevent the city from awarding the contract to another bidder, and the plaintiff again appealed. See Cheryl Terry Enterprises, Ltd. v. Hartford, supra, 270 Conn. at 619, 854 A.2d 1066.³ In August, 2004, our Supreme Court reversed the decision of the trial court setting aside the verdict and ordered that the verdict be reinstated. See id. In May, 2005, the plaintiff and the city entered into a stipulated judgment in the plaintiff's favor for $2.5 million, which represented the $500,000 jury verdict trebled and an award of $1 million in attorney's fees and costs.⁴ In the defendant's June, 2004 postjudgment motion to open and modify the judgment of dissolution, he requested that he be allocated a portion of the $1.5 million received by the plaintiff. He based his motion on claims of fraud and mutual mistake. On July 28, 2005, a hearing was held on this motion and other pending motions. The defendant did not appear in court, and his attorney proceeded on the motion to open the judgment without requesting a continuance of the proceeding. Ruling from the bench, the trial court denied the defendant's motion to open the judgment, reasoning that the defendant had full knowledge of the lawsuit.

On July 29, 2005, the defendant filed a motion for a continuance and a motion to vacate or reargue the July 28, 2005 order denying his motion to open. The motion to vacate or reargue was based on the claim that the defendant had been unable to attend the July 28 hearing on the motion to open due to health reasons and that his attorney was unable to present evidence in his absence. The defendant was present in court on July 29, 2005, and testified that he had been suffering from chest pains the previous day, had gone to a hospital and had remained there until four o'clock in the evening when he signed out against medical advice. The court granted the continuance of other unrelated motions because of the defendant's medical reasons and rescheduled hearings on those other motions to the following month. However, it did address the motion to vacate or reargue. In denying the defendant's motion to vacate or reargue, the court reasoned that the order it had issued denying the motion to open was appropriate given the plaintiff's testimony that the defendant and his attorney had the plaintiff's litigation file pertaining to the Hartford lawsuit prior to the dissolution hearing. The court further reasoned that the defendant was aware of the lawsuit and, even though it had no specific value at that time, he easily could have requested a percentage of whatever verdict might be rendered in a subsequent trial.

On September 9, 2005, the court issued a memorandum of decision resolving pending motions. With respect to the motions pertaining to the Hartford lawsuit, the court reasoned that it had denied both the motion to open and motion to vacate or reargue because "[a]lthough this lawsuit was instituted in 1998 and was not listed as an asset on the plaintiff's financial affidavit . . . the defendant had knowledge of the pending lawsuit and although no value could be ascribed to the lawsuit at that time, [the] defendant could have requested an order for a percentage of any proceeds that might be recovered."

Subsequently, on January 19, 2006, the defendant filed a motion for articulation, requesting that the court articulate the basis for the orders issued on July 28 and 29, 2005. On June 15, 2006, the court explained that although the plaintiff had not listed the lawsuit on her financial affidavit, she had disclosed fully everything concerning the lawsuit and had not concealed any information. The court explained that it had denied the defendant's motion to open because there was no basis to the defendant's claim that the plaintiff was aware of the value of the lawsuit on July 20, 1999, nor any basis to his claim that she intentionally had withheld this information from him. The court further explained that it had denied the defendant's July 29 motion to vacate or reargue because the defendant had proceeded with the July 28 hearing on his motion to open without his client being present, and, on the basis of the evidence presented on July 28, 2005, it had found no reason or grounds to vacate the decision denying the defendant's motion to open.

This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion to open the dissolution judgment on the basis of fraud or mutual mistake. We disagree.

"It is a well-established general rule that . . . a judgment rendered by the court . . . can subsequently be opened [after the four month limitation set forth in General Statutes § 52-212a and Practice Book § 17-43]⁵. . . if it is shown that . . . the judgment, was obtained by fraud . . . or because of mutual mistake." (Internal quotation marks omitted.) Nelson v. Charlesworth, 82 Conn.App. 710, 713, 846 A.2d 923 (2004).

"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. . . . In an appeal from a denial of a motion to open a judgment, our review is limited to the issue of whether the trial court has acted...