Gaary v. Gillis

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ELIZABETH A. GAARY v. PATRICK J. GILLIS
(AC 37170)
DiPentima, C. J., and Lavine and Alvord, Js.
Argued October 26, 2015—officially released January 5, 2016

(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Munro, J.)
John R. Williams, for the appellant (defendant).
Thomas M. Cassone, for the appellee (plaintiff).
Opinion

PER CURIAM. The defendant, Patrick J. Gillis,
appeals from the postjudgment ruling of the trial court
denying his motion to open prior postdissolution modi-
fications of alimony and child support obligations on
the ground of fraud.1 The defendant claims that the trial
court abused its discretion in denying his motion to
open because the plaintiff, Elizabeth A. Gaary, at the
hearings on the prior postdissolution modification
motions (1) ‘‘concealed . . . a lump sum payout of
$700,000’’ in connection with the settlement of her pend-
ing litigation in Michigan and (2) ‘‘concealed . . . the
fact that her relationship with her Michigan partners
was severed because of her intentional wrongdoing.’’
We disagree and, accordingly, affirm the judgment of
the trial court.
The following facts and procedural history are rele-
vant to our review of the defendant’s claims. The court,
Munro, J., dissolved the parties’ fourteen year marriage
on June 17, 2010. Various orders were entered at that
time, including, inter alia, orders relating to alimony
and child support for their two minor children. Approxi-
mately one month after the dissolution judgment was
rendered, the plaintiff, a radiologist, was terminated
from her employment by Premier Medical Care, P.C.
(Premier), a Michigan professional corporation.
On August 6, 2010, the plaintiff filed a motion for
modification to decrease the amount of alimony she
was obligated to pay the defendant for the stated reason
that her ‘‘employment [had been] involuntarily termi-
nated.’’ On June 21, 2011, she filed a motion for modifi-
cation to increase the defendant’s child support
obligation, claiming a decrease in her employment
income. A hearing on the plaintiff’s motion to modify
her alimony obligation was held on June 7 and 8, 2011.
At the conclusion of the hearing, the court ruled from
the bench that alimony payments to the defendant were
to be decreased from $1750 per week to $700 per week.
As part of that ruling, the court stated: ‘‘I am going to
provide for a second look after the litigation between
the plaintiff and her former employer is concluded. . . .
[T]he second look would have to occur after that trial
is concluded, a result is obtained, and if no appeal
is taken.’’
On August 3, 2011, the court held a hearing on the
plaintiff’s motion to increase the amount of child sup-
port to be paid by the defendant. At the conclusion
of the hearing, the court allowed the parties to file
posthearing briefs. The court issued its memorandum
of decision on February 8, 2012, in which it increased
the amount of the defendant’s child support obligation
for the minor children to $132 per week.
In early January, 2012, the plaintiff’s attorneys in
Michigan, who were representing her in the Michigan
employment litigation, received a check in the amount
of $700,000, payable jointly to the law firm and the
plaintiff as settlement proceeds. On February 27, 2012,
the defendant filed a postjudgment motion to modify
the support and alimony orders entered on June 8, 2011,
and February 8, 2012, claiming a substantial change in
circumstances occasioned by the plaintiff’s receipt of
$700,000 as ‘‘partial’’ settlement of the Michigan litiga-
tion. On the same day, the defendant filed a motion to
open the financial orders in the June 17, 2010 judgment
of dissolution because, inter alia, the plaintiff ‘‘realized
a $700,000 financial gain’’ from her business interests
in Michigan even though she had claimed in 2010 that
those interests had zero value. Those two motions were
never pursued by the defendant or adjudicated by the
trial court.
On November 20, 2013, which was approximately
twenty-two months after the defendant became aware
of the receipt of the settlement proceeds, he filed his
motion for an Oneglia hearing that is the subject of the
present appeal. The defendant claimed that the June 8,
2011 and February 8, 2012 rulings should be opened on
the basis of fraud. Following the June 26, 2014 hearing
on that motion, and the submission of posthearing
briefs by the parties, the court issued its memorandum
of decision on August 26, 2014, denying the defendant’s
motion. The court found that ‘‘[t]he plaintiff had dis-
closed the litigation pending in Michigan at the modifi-
cation hearing. Therefore, there was no fraudulent
representation.’’ This appeal followed.
The defendant subsequently filed a motion for articu-
lation that requested the trial court to articulate its
holding regarding the defendant’s claim that the plaintiff
had ‘‘fraudulently concealed the fact that the termina-
tion of her prior employment was caused by her own
actions.’’ In the court’s responsive articulation filed May
26, 2015, it made the following factual findings: ‘‘The
plaintiff had disclosed to the court and to the defendant
that she had been terminated as an employee. . . . The
plaintiff provided testimony about the termination on
June 7, 2011. There was uncontroverted testimony that
there was litigation pending between the plaintiff and
[her former employer]. Testimony was elicited by the
defendant’s legal counsel from the plaintiff that her
termination was a surprise and that she had been placed
on employment probation due to her poor perfor-
mance.’’ For those reasons, the court concluded that
there was no concealment as alleged by the defendant.
We first set forth the applicable standard of review
and legal principles that govern our analysis of the
defendant’s claims. ‘‘Our review of a court’s denial of
a motion to open [based on fraud] is well settled. We
do not undertake a plenary review of the merits of a
decision of the trial court . . . 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 unreasonably
and in clear abuse of its discretion. . . . In determining
whether the trial court abused its discretion, this court
must make every reasonable presumption in favor of
its action. . . . The manner in which [this] discretion
is exercised will not be disturbed so long as the court
could reasonably conclude as it did. . . .
‘‘Fraud consists in deception practiced in order to
induce another to part with property or surrender some
legal right, and which accomplishes the end designed.
. . . 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.2 . . . A court’s determina-
tions as to the elements of fraud are findings of fact
that we will not disturb unless they are clearly errone-
ous. . . . There are three limitations on a court’s ability
to grant relief from a dissolution judgment secured by
fraud: (1) there must have been no laches or unreason-
able delay by the injured party after the fraud was
discovered;3 (2) there must be clear proof of the fraud;
and (3) there is a substantial likelihood that the result
of the new trial will be different.’’ (Citation omitted;
footnotes added; internal quotation marks omitted.)
Spilke v. Spilke, 116 Conn. App. 590, 594–95, 976 A.2d
69, cert. denied, 294 Conn. 918, 984 A.2d 68 (2009).
‘‘In considering a motion to open the judgment on the
basis of fraud, then, the trial court must first determine
whether there is probable cause to open the judgment
for the limited purpose of proceeding with discovery
related to the fraud claim. . . . This preliminary hear-
ing is not intended to be a full scale trial on the merits
of the [moving party’s] claim. The [moving party] does
not have to establish that he will prevail, only that there
is probable cause to sustain the validity of the claim.
. . . If the moving party demonstrates to the court that
there is probable cause to believe that the judgment
was obtained by fraud, the court may permit discovery.
See Oneglia v. Oneglia, [14 Conn. App. 267, 269–70,
540 A.2d 713 (1988)] (approving trial court’s position
that [i]f the plaintiff was able to substantiate her allega-
tions of fraud beyond mere suspicion, then the court
would open the judgment for the limited purpose of
discovery, and would later issue an ultimate decision
on the motion to open after discovery had been com-
pleted and another hearing held).’’ (Citations omitted;
internal quotation marks omitted.) Bruno v. Bruno, 146
Conn. App. 214, 231–32, 76 A.3d 725 (2013).
In the present case, the defendant was required to
demonstrate that there was probable cause to believe
that the court’s prior modifications of the parties’ ali-
mony and child support obligations were obtained by
fraud, i.e., that the plaintiff had concealed the receipt
of settlement proceeds from her Michigan employment
litigation and that she concealed that she was termi-
nated from her previous employment ‘‘because of her
intentional wrongdoing.’’
The trial court determined, after the requisite hearing;
see Bruno v. Bruno, supra, 146 Conn. App. 232–33; that
the defendant failed to demonstrate that the plaintiff
had concealed these matters during the hearings on the
prior modification hearings. The court’s findings in this
regard are not clearly erroneous and are fully supported
by the record. With respect to the settlement proceeds,
it is apparent that the defendant was aware of the pend-
ing Michigan litigation and the possibility that it would
settle or proceed to trial at the time of those modifica-
tion hearings. At the beginning of the June 7, 2011 hear-
ing on the plaintiff’s motion to decrease her alimony
obligation to the defendant, the defendant’s counsel
requested a continuance because ‘‘there is litigation as
[to] whether [the plaintiff] was wrongfully terminated’’
and it was not known at that point ‘‘whether she has
certain rights as to reinstatement, as to damages, [or]
as to back pay . . . .’’4 For that reason, the defendant
‘‘object[ed] to her proceeding on the motion to modify
at [that] time and respectfully request[ed] that any pros-
ecution of this motion be continued or adjourned until
such time as there is a final decision in the matter of—
in the matters pending in the state of Michigan.’’
After the court denied the motion for a continuance,
the two day hearing proceeded with the plaintiff’s testi-
mony. On cross-examination, the defendant’s counsel
focused on the pending employment litigation. In
responding to his questions, and the questions of her
own counsel, the plaintiff testified that she was sur-
prised by her termination from employment, that her
employer had filed a lawsuit against her immediately
after she had received the notice of termination, that
she could not use her former employer as a reference
for future employment because of the ‘‘contentious’’
nature of their relationship, and that her employer had
contested her right to any unemployment compensa-
tion. The notice of termination, at the request of the
defendant’s counsel, was marked as a full exhibit. Refer-
ring to the exhibit, the defendant’s counsel stated:
‘‘[T]he reason for your termination was for cause, cor-
rect?’’ The plaintiff responded: ‘‘That’s what they
allege, yes.’’
The hearing was continued to the next day, June 8,
2011. At that time, the plaintiff continued to respond
to the defendant’s questions regarding her termination
of employment. The plaintiff testified: ‘‘[T]heir alleged
cause for firing me was regarding outside activities as
an assistant clinical professor at Columbia and teach-
ing.’’ She also acknowledged that her former employer
was ‘‘asking me to resign or take some kind of admission
of fault.’’ Additionally, when asked by the defendant’s
counsel, ‘‘what do you think your case is worth,’’ the
plaintiff stated that she did not know because the matter
still was being litigated.5
After witness testimony had concluded, the parties’
counsel made closing arguments to the court. The
defendant’s counsel stated: ‘‘[I]t appears from the plead-
ings and it appears from the exhibit, which is the admin-
istrative law judge’s decision upholding [the plaintiff’s]
award of unemployment compensation . . . it appears
that—which, according to [the plaintiff], was not
appealed—it appears that she has a pretty good case,
that she was wrongfully terminated in Michigan, and
that—you, know, she is going to be entitled to some
kind of an award or some kind of a settlement. We
don’t know what that is going to be.’’6 For that reason,
the defendant’s counsel requested that the court include
a provision in its ruling for a ‘‘second look’’ after the
litigation concluded: ‘‘I would think, at the very least,
that we would have a second look to any decision Your
Honor might make after that decision comes down in
Michigan to see how it would impact on [the plaintiff’s]
income since her termination . . . .’’ The court agreed
with the request of the defendant’s counsel and, in its
ruling made at the end of the hearing, stated: ‘‘I am
going to provide for a second look after the litigation
between the plaintiff and her former employer is con-
cluded.’’
At the August 3, 2011 hearing on the plaintiff’s motion
to increase the defendant’s child support obligation,
again there were questions addressed to the status of
the ongoing Michigan employment litigation. The defen-
dant’s counsel asked the plaintiff whether she had
retained an expert to value her interest in Premier. She
responded in the affirmative, and counsel then asked:
‘‘Didn’t your expert render an opinion that your interest
in Premier had a fair value in excess of $1.6 million.’’
She stated that her expert had reached that conclusion.
The defendant became aware of the settlement, or
partial settlement, of the Michigan employment litiga-
tion and the amount of the settlement proceeds in Janu-
ary, 2012. On February 27, 2012, the defendant filed a
postjudgment motion to modify the support and ali-
mony orders entered on June 8, 2011, and February 8,
2012, that was based on the plaintiff’s receipt of the
settlement proceeds, and a motion to open the financial
orders in the June 17, 2010 judgment of dissolution on
the ground that the plaintiff had claimed in 2010 that
her interest in Premier had zero value. The defendant,
however, did not pursue those motions, and did not
seek adjudication of these issues by the court. Instead,
the defendant filed the present motion for an Oneglia
hearing on November 20, 2013, claiming fraud through
the plaintiff’s alleged concealment of the amount of the
settlement proceeds and the reason for her termination
from employment.
After the defendant’s presentation of evidence at the
June 26, 2014 hearing, the court concluded that ‘‘there
was no fraudulent representation’’ because ‘‘[t]he plain-
tiff had disclosed the litigation pending in Michigan at
the modification hearing,’’ and ‘‘[t]he plaintiff provided
testimony about the termination on June 7, 2011 [such
that the court] does not find . . . a concealment as
alleged by the defendant.’’ The court’s findings and con-
clusions are amply supported by the record, as evi-
denced by the quoted excerpts from the transcripts of
the hearings on the prior motions for modification. We
conclude that the court correctly determined that the
defendant was unable to meet the minimal evidentiary
threshold of establishing his allegations of fraud beyond
a mere suspicion, and, therefore, that the court did not
abuse its discretion in denying the defendant’s motion
to open the prior postdissolution modifications of ali-
mony and child support.
The judgment is affirmed.
1
The defendant’s motion, dated November 20, 2013, was titled ‘‘Motion
to Modify Judgment as Modified by Court Orders (Malone, J.) Entered June
8, 2011, and February 8, 2012.’’ At the time of the June 26, 2014 hearing on
the defendant’s ‘‘Motion to Modify,’’ the parties agreed that the motion was
in essence a motion to open for fraud, which necessitated a hearing pursuant
to Oneglia v. Oneglia, 14 Conn. App. 267, 540 A.2d 713 (1988), as evidenced
by the following colloquy:
‘‘The Court: [A]s I read through the motion, while it is entitled motion to
modify, looking at the body of the motion, I interpret this to be essentially
a motion for an Oneglia hearing to determine whether there is a basis to
go forward with a formal hearing to reopen decisions that were entered by
me and found by me on June 8, 2011, and February 8, 2012. Is that correct?
‘‘[The Defendant’s Counsel]: Yes, Your Honor. I have no problem with
proceeding on the basis of this being an Oneglia hearing. I think that we’re
prepared with the evidence that will meet that burden.
‘‘The Court: All right. Is that your understanding, sir?
‘‘[The Plaintiff’s Counsel]: Yes, Your Honor. . . . [W]e are here and pre-
sent for a preliminary Oneglia hearing . . . .’’
2
Under certain circumstances, fraud may consist of silence or conceal-
ment when a person is under a duty to disclose information. See Reville v.
Reville, 312 Conn. 428, 441, 93 A.3d 1076 (2014).
3
The plaintiff claims, as an alternative ground for affirmance of the judg-
ment, that the defendant’s motion ‘‘should have been denied as a result of
laches and his inexcusable delay in its filing.’’ In light of our resolution of
the defendant’s claims, we need not reach the plaintiff’s alternative ground
for affirmance.
4
A copy of the complaint and counterclaim pertaining to the Michigan
employment litigated already had been provided to the defendant.
5
In the plaintiff’s June 6, 2011 financial affidavit, she listed the Michigan
litigation under ‘‘all other assets’’ with the following explanation: ‘‘Net value
of Premier v. Affiant (Employment Litigation) not included. Outcome of
litigation could result in some [additional] liability or asset . . . .’’
6
Despite having made the statement that it appeared that the plaintiff had
been ‘‘wrongfully terminated,’’ the defendant’s counsel made a subsequent
statement during closing arguments that ‘‘reading the complaint and the
counterclaim [from the Michigan litigation], there may be some basis for
suspecting that [the plaintiff] may have caused her own problems in this
regard.’’