Zakko v. Kasir

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ANGHAM ZAKKO v. LAITH KASIR
(AC 45315)
Clark, Seeley and DiPentima, Js.

Syllabus

The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed to this court from the revised financial orders issued
by the trial court following its granting of the plaintiff’s motion to open
the dissolution judgment. In accordance with the parties’ separation
agreement, which was incorporated into the original dissolution judg-
ment, the defendant was required to pay the plaintiff alimony in an
amount equal to 30 percent of his gross earned income from work until
he reached the age of sixty-five or, if he received veteran’s disability
income prior to turning sixty-five, 30 percent of his veteran’s disability
income plus 30 percent of any additional earned income. After the
parties’ marriage was dissolved, the defendant became disabled, stopped
working, and began receiving Social Security disability benefits in addi-
tion to payments from a veteran’s disability policy and a MassMutual
disability insurance policy. As a result, the defendant’s earned income
decreased, and he began paying the plaintiff significantly less alimony.
The defendant did not pay the plaintiff any portion of the income he
received from the MassMutual policy because he did not believe that
it constituted earned income for purposes of the dissolution judgment.
The plaintiff filed a motion to open the dissolution judgment, arguing
that it had been secured by fraud on the part of the defendant or, in
the alternative, that it was obtained by the mutual mistake of the parties
regarding the defendant’s income and assets. At a hearing to determine
whether the plaintiff was entitled to pursue discovery with respect
to her fraud allegations, the plaintiff’s counsel began questioning the
defendant about the MassMutual policy. Following an objection by the
defendant’s counsel, the trial court started questioning the parties’ attor-
neys and did not allow either counsel to further question the defendant
or to present other evidence. The trial court then stated that it found
that the defendant had not committed fraud because the defendant had
listed the MassMutual policy on his financial affidavit and issued an
order from the bench opening the judgment of dissolution with respect
to financial orders on the basis of mutual mistake and fundamental
fairness. Following a trial held for the purpose of issuing new financial
orders, the trial court, inter alia, rejected the plaintiff’s claim that the
MassMutual policy constituted property subject to equitable division
because the defendant’s entitlement to benefits under that policy was
inchoate at the time of the original dissolution judgment. The plaintiff
appealed, and the defendant cross appealed, to this court. Held that the
trial court deprived the defendant of his due process rights by not
allowing him to be heard in a meaningful manner on the plaintiff’s motion
to open the dissolution judgment: the trial court’s actions prevented the
defendant’s counsel from examining his own client, who was the sole
witness to testify at the hearing, and from introducing any evidence of
his own in opposition to the plaintiff’s motion; moreover, although the
trial court stated that it was opening the judgment on the basis of a
mutual mistake, it did not clearly identify the issue about which the
parties were purportedly mistaken, and, due to its failure to provide the
parties with a meaningful opportunity to introduce evidence, the record
did not support a finding that the parties were mutually mistaken regard-
ing whether the plaintiff was entitled to share in the value or proceeds
of the MassMutual policy; furthermore, contrary to the plaintiff’s asser-
tion that the defendant’s due process rights were not violated because
there were no disputed issues of material fact concerning her claim of
a mutual mistake, the transcript from the hearing at which the original
dissolution judgment was rendered did not, by itself, establish that
the parties were mutually mistaken about anything with respect to the
MassMutual policy, an evidentiary hearing was required to resolve the
plaintiff’s motion to open, and, because the trial court failed to conduct
an evidentiary hearing that comported with due process, it lacked the
authority to issue the new financial orders that the plaintiff challenged
on appeal; accordingly, this court reversed the judgment of the trial
court and remanded the case with direction to reinstate the original
financial orders and to hold a new hearing on the motion to open.
Argued October 11, 2023—officially released January 9, 2024

Procedural History

Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of New Britain, where the court, Hon. Edward J.
Dolan, judge trial referee, rendered judgment dissolving
the marriage and granting certain other relief in accor-
dance with the parties’ separation agreement; there-
after, the court, Hon. Edward J. Dolan, judge trial ref-
eree, granted the plaintiff’s motion to open the judgment
as to financial matters only, and the defendant appealed
to this court, which granted the plaintiff’s motion to
dismiss the appeal; subsequently, the matter was tried
to the court, Klau, J.; judgment revising certain finan-
cial orders, from which the plaintiff appealed and the
defendant cross appealed to this court. Reversed; fur-
ther proceedings.
David V. DeRosa, for the appellant-cross appellee
(plaintiff).
Angham Zakko, self-represented, the appellant-cross
appellee (plaintiff).
David A. McGrath, with whom was Ashley Cervin,
for the appellee-cross appellant (defendant).
Opinion

CLARK, J. This appeal and cross appeal arise from
the trial court’s judgment granting a motion to open a
dissolution judgment as to financial matters only filed
by the plaintiff, Angham Zakko, and the subsequent
entry of new financial orders. On appeal, the plaintiff
claims that the trial court, Klau, J., erred in fashioning
revised financial orders by (1) failing to classify a pri-
vate disability policy as a marital asset, subject to divi-
sion under General Statutes § 46b-81, (2) crafting inequi-
table alimony orders, (3) ordering an inequitable
property distribution, and (4) not compelling the defen-
dant, Laith Kasir, to provide her with a signed authoriza-
tion in order to complete discovery on alleged foreign
bank accounts. On cross appeal, the defendant claims
that the trial court, Hon. Edward J. Dolan, judge trial
referee, erred in granting the plaintiff’s motion to open
the dissolution judgment in the first instance because
(1) it deprived him of due process by failing to provide
adequate notice that the judgment might be opened
at a preliminary discovery hearing and a meaningful
opportunity to be heard or to present evidence before
granting the motion, and (2) there was no evidence to
support the court’s conclusion that there was a mutual
mistake. We agree with the defendant that the trial court
deprived him of his due process rights and, therefore,
that it was improper for the court to grant the plaintiff’s
motion to open. Because it was improper for the court
to open the dissolution judgment, we further conclude
that the court lacked the authority to issue the new
financial orders that the plaintiff challenges on appeal.
Accordingly, we reverse the judgment of the trial court
and remand the case with direction to reinstate the
April 5, 2016 financial orders and to hold a new hearing
on the motion to open.
The following facts and procedural history are rele-
vant to our resolution of this appeal and cross appeal.
On April 5, 2016, the court, Hon. Edward J. Dolan,
judge trial referee, rendered judgment dissolving the
parties’ marriage. The parties’ separation agreement
(agreement) was incorporated into the judgment of dis-
solution. The agreement divided the marital property
and provided that the defendant would pay the plaintiff
alimony of ‘‘30% of his gross earned income from work
until such time as [the defendant] attains the age of 65.
This is currently $1,142 a week. If, prior to attaining
the age of 65, [the defendant] commences receiving
Veteran’s Disability Income, then [the defendant’s] ali-
mony obligation shall be reduced to 30% of his gross
Veteran’s Disability Income plus 30% of additional
earned income, if any, he may have in addition to his
Veteran’s Disability.’’
After the dissolution of the parties’ marriage, the
defendant became disabled. His disability prevented
him from working, but he began receiving Social Secu-
rity disability benefits in addition to payments from a
veteran’s disability policy and a separate MassMutual
disability insurance policy (MassMutual policy). Due to
the defendant’s disability and his inability to work, the
defendant’s earned income decreased significantly. As
a result, he began paying the plaintiff significantly less
in alimony. The defendant did not pay the plaintiff any
portion of the income he received from the MassMutual
policy because the dissolution judgment was silent as
to that policy, and it was his position that the income
he received from that policy did not constitute ‘‘earned
income’’ for purposes of the dissolution judgment.
The plaintiff filed myriad postjudgment motions,
including a motion to compel and a motion for modifica-
tion filed on October 10, 2017, and two separate motions
for contempt filed on November 13 and December 19,
2017. In these motions, the plaintiff argued, inter alia,
that (1) the defendant was required to pay her 30 per-
cent of the income he received under the MassMutual
policy and (2) the defendant had failed to pay the plain-
tiff either 30 percent of his total veteran’s disability
benefits before the benefits were reduced by his Social
Security disability benefits or 30 percent of his Social
Security disability benefits. On December 22, 2017, the
plaintiff filed a memorandum of law in support of her
request to conduct postjudgment discovery, seeking
information regarding the MassMutual policy.
On January 19, 2018, the defendant filed an objection
to both the plaintiff’s December 19, 2017 motion for
contempt and the memorandum of law in support of
the plaintiff’s request for discovery in connection with
her claim that she was entitled to 30 percent of the
income the defendant received under the MassMutual
policy. The defendant argued that the MassMutual pol-
icy did not constitute ‘‘earned income’’ under the agree-
ment and the dissolution judgment and that the defen-
dant, therefore, was not required to pay the plaintiff
any portion of the income he received under that policy.
On January 23, 2018, the court, Connors, J., issued
an order sustaining the defendant’s objection to the
plaintiff’s postjudgment discovery requests with respect
to her pending motions. In so ruling, the court con-
cluded that ‘‘[t]he language in the judgment [was] clear
and unambiguous. Pursuant to the terms of the judg-
ment, the plaintiff’s alimony [was] limited to 30 percent
of the defendant’s veteran’s disability benefits and 30
percent of any other earned income. Income from any
other sources is therefore irrelevant.’’
Thereafter, on March 22, 2019, the plaintiff filed a
motion to open the judgment, arguing that ‘‘the judg-
ment was secured by fraud on the part of the defendant’’
or that, in the alternative, ‘‘the judgment was obtained
by the mutual mistake of the parties regarding the defen-
dant’s income and assets.’’ In her memorandum of law
in support of her motion, the plaintiff claimed that the
defendant had committed fraud by (1) ‘‘failing to list the
veteran’s [disability] policy as an asset on his financial
affidavit,’’ (2) ‘‘failing to value his [MassMutual policy],’’
(3) ‘‘failing to list the [dividends] he received from the
MassMutual policy as income,’’ (4) ‘‘failing to list the
premiums he paid for the veteran’s disability policy and
the MassMutual polic[y] in expenses,’’ and (5) ‘‘falsely
stating that his disability income would be $118,000
for the first year and then $79,000 thereafter.’’ In the
alternative, the plaintiff asserted that the judgment
should be opened due to the parties’ mutual mistake.
Specifically, the plaintiff argued that both parties
‘‘incorrectly calculated the defendant’s income upon his
disability and incorrectly believed that the defendant’s
assets and income were accurately represented on his
financial affidavit’’ and that the defendant ‘‘mistakenly
misstated his disability income and the value of his
MassMutual policy on his financial affidavit . . . .’’ In
his objection to the plaintiff’s motion to open, the defen-
dant maintained that there had been no fraud or mutual
mistake. With respect to the MassMutual policy, the
defendant argued that (1) ‘‘the MassMutual [policy] was
fully disclosed and accurately represented on [the
defendant’s] financial affidavits’’ and (2) ‘‘[the defen-
dant’s] representations at the time of judgment as to
the facts that then existed . . . were entirely accurate
and not mistaken.’’
On June 25, 2019, the court, Hon. Edward J. Dolan,
judge trial referee, held a hearing with respect to the
plaintiff’s motion to open. At that hearing, both parties
represented to the court that the purpose of the hearing
was to determine whether the plaintiff was entitled to
pursue discovery with respect to her fraud allegations
by establishing that there was probable cause to believe
that the defendant had committed fraud. See Oneglia
v. Oneglia, 14 Conn. App. 267, 269–70, 540 A.2d 713
(1988).1 After a brief hearing, which will be discussed
in greater detail subsequently in this opinion, the court
found that the defendant had not committed fraud but,
nevertheless, issued an order opening the judgment of
dissolution only with respect to the financial orders on
the basis of mutual mistake. The defendant subse-
quently appealed the court’s judgment granting the
plaintiff’s motion to open, but this court dismissed that
appeal because it concluded that the court’s order did
not constitute a final judgment. See Wolfork v. Yale
Medical Group, 335 Conn. 448, 459, 239 A.3d 272 (2020)
(‘‘[i]t is well settled that, as a general rule, the granting
of a motion to open renders a trial court’s judgment
nonfinal and, therefore, ineffective pending its resolu-
tion’’ (internal quotation marks omitted)).
Thereafter, the court held a trial for the purpose of
issuing new financial orders. That trial took place over
the course of five separate days between April and
October, 2021. Following trial, the court, Klau, J.,
issued a memorandum of decision dated February 3,
2022, acknowledging that the parties’ marriage had been
dissolved as of April 5, 2016, and rendering judgment
issuing revised financial orders concerning both the
parties’ property and income. With respect to alimony,
the court ordered the defendant to pay the plaintiff
$500 per week, which the court found amounted to 38
percent of the parties’ combined net weekly incomes.
The court also rejected the plaintiff’s claim that the
MassMutual policy constituted property subject to equi-
table division pursuant to § 46b-81. The court reasoned
that the defendant’s entitlement to disability benefits
under the MassMutual policy was inchoate at the time
of the original dissolution judgment because he was not
disabled at that time and the prospect of him receiving
benefits under that policy was speculative.2
This appeal and cross appeal followed. Given the
nature of the defendant’s cross appeal, which chal-
lenges the court’s decision to open the judgment of
dissolution in the first instance, we address his claims
first. Additional facts will be set forth as necessary.
On cross appeal, the defendant claims that the court
violated his right to due process of law by not allowing
him to be heard in a meaningful manner on the plaintiff’s
motion to open the 2016 dissolution judgment before
the trial court granted the motion.3 Specifically, the
defendant claims that he was not afforded a reasonable
opportunity to present evidence, to call his own wit-
nesses, or to be examined by his attorney, as he was
the sole witness allowed to testify at the hearing on the
plaintiff’s motion to open. We agree with the defendant.
We begin by setting forth our standard of review and
the relevant legal principles governing the defendant’s
claim. ‘‘Whether the court violated the defendant’s con-
stitutional procedural due process rights is a question
of law over which our review is plenary. . . . [F]or
more than a century the central meaning of procedural
due process has been clear: Parties whose rights are
to be affected are entitled to be heard; and in order
that they may enjoy that right they must first be notified.
. . . It is equally fundamental that the right to notice
and an opportunity to be heard must be granted at a
meaningful time and in a meaningful manner. . . .
[T]hese principles require that a [party] have . . . an
effective opportunity to defend by confronting any
adverse witnesses and by presenting his [or her] own
arguments and evidence orally.’’ (Citation omitted;
internal quotation marks omitted.) Merkel v. Hill, 189
Conn. App. 779, 786–87, 207 A.3d 1115 (2019).
‘‘A fundamental premise of due process is that a court
cannot adjudicate any matter unless the parties have
been given a reasonable opportunity to be heard on the
issues involved. . . . Generally, when the exercise of
the court’s discretion depends on issues of fact which
are disputed, due process requires that a trial-like hear-
ing be held, in which an opportunity is provided to
present evidence and to cross-examine adverse wit-
nesses. . . . It is a fundamental tenet of due process
of law as guaranteed by the fourteenth amendment to
the United States constitution and article first, § 10, of
the Connecticut constitution that persons whose . . .
rights will be affected by a court’s decision are entitled
to be heard at a meaningful time and in a meaningful
manner. . . . Where a party is not afforded an opportu-
nity to subject the factual determinations underlying
the trial court’s decision to the crucible of meaningful
adversarial testing, an order cannot be sustained.’’
(Internal quotation marks omitted.) Morera v. Thurber,
187 Conn. App. 795, 799–800, 204 A.3d 1 (2019).
It is axiomatic that parties have a right to present
evidence on contested issues when at a hearing before
the court. See Eilers v. Eilers, 89 Conn. App. 210, 218,
873 A.2d 185 (2005) (‘‘we hold that a party has a due
process right to present evidence on contested factual
issues and that a court’s annoyance or impatience with
the pace and range of questioning or the court’s disgust
with a witness will not justify the termination of a hear-
ing before a party has been given a reasonable opportu-
nity to examine and to cross-examine witnesses on facts
pertinent to the issues at hand’’); Szot v. Szot, 41 Conn.
App. 238, 242, 674 A.2d 1384 (1996) (trial court ‘‘did
not have the right to terminate the hearing before the
plaintiff had a fair opportunity to present evidence on
the contested issues’’ where trial court had ended cross-
examination and entire presentation of evidence due
to its apparent frustration with plaintiff’s counsel).
In the present case, the court did not allow the defen-
dant’s counsel to examine the one witness who testified
at the hearing on the motion to open or to offer any of
his own evidence in opposition to the plaintiff’s motion
to open. At the beginning of the hearing, the plaintiff’s
counsel, Attorney Alan Rome, called the defendant as
a witness. Shortly after Rome began questioning the
defendant about the underlying divorce proceedings
and the MassMutual policy, the defendant’s counsel,
Attorney David McGrath, objected to the line of ques-
tioning. Rather than ruling on the objection, the court
began questioning the attorneys and never allowed the
parties to return to questioning the witness or to present
additional evidence. During that exchange, and after
reviewing the transcript from the hearing at which it
had rendered the original dissolution judgment, the
court made clear to the parties that, in its view, and
contrary to the conclusion Judge Connors previously
had reached when denying the plaintiff’s request for
postjudgment discovery in connection with the Mass-
Mutual policy, the original dissolution judgment
required the defendant to pay the plaintiff 30 percent
of the income he received from the MassMutual policy.4
Thereafter, and without allowing the parties to intro-
duce any further evidence, the court issued an order
from the bench opening the judgment as to financial
matters only, stating: ‘‘Go outside, act like grownups
and settle this case. I’m going to reopen it. You have
the right to pursue discovery and if you would rather pay
your lawyer [than] give the money that will ultimately
go to your kids, God bless you, and I can’t stop you
from being ridiculous.’’ After making this statement,
the court began to question both parties as to how much
money they had paid their attorneys in legal fees, in
comparison to how much money they were attempting
to gain through a judgment in their favor, before reiter-
ating that it was opening the judgment.5 When the defen-
dant’s counsel asked the court to make it clear for the
record whether it was making a finding that there was
probable cause to believe that fraud existed, the court
stated that it did not find that there was fraud because
the defendant had listed the MassMutual policy on his
financial affidavit. Instead, the court stated that it was
opening the judgment on the basis of mutual mistake
and fundamental fairness.6
On the record before us, it is clear that the defendant
did not have a reasonable opportunity to be heard in
opposition to the plaintiff’s motion to open the dissolu-
tion judgment. The court’s actions prevented the defen-
dant’s counsel from examining his own client, who was
the sole witness to testify at the hearing, and from
introducing any evidence whatsoever of his own. More-
over, although the court stated that it was opening the
judgment on the basis of a mutual mistake, the court
did not clearly identify what the parties purportedly
were mistaken about. Additionally, due to the court’s
failure to provide the parties with a meaningful opportu-
nity to introduce evidence, the record does not support
a finding that the parties were mutually mistaken about
whether the plaintiff was entitled to share in the value
or proceeds of the MassMutual policy. Indeed, it is
difficult to conceive of how the court could make such
a finding when the parties themselves were never even
given the opportunity to testify about that question.
The plaintiff claims that the defendant’s due process
rights were not violated because there were no disputed
issues of material fact concerning her claim that there
had been a mutual mistake with respect to the MassMu-
tual policy. In her view, the record supports the court’s
finding of mutual mistake because the court made that
finding on the basis of its review of the transcript of
the hearing at which it rendered the judgment of dissolu-
tion in 2016. As a result, she contends that no eviden-
tiary hearing was required. We are not persuaded.
We have reviewed the transcript from the hearing at
which the original dissolution judgment was rendered
and conclude that it does not by itself establish that
the parties were mutually mistaken about anything with
respect to the MassMutual policy. First, because the
court seemed to base its ruling on its own determination
that the original dissolution judgment actually required
the defendant to pay the plaintiff 30 percent of his
income from the MassMutual policy, the court did not
identify the mutual mistake. Consequently, it is not pos-
sible to conclude that the transcript from the hearing
on the original dissolution judgment shows that the
parties were mutually mistaken. Second, the plaintiff
makes two differing arguments in support of her claim
that there was a mutual mistake between the parties
concerning the MassMutual policy. On the one hand,
she claims that, at the time of the original dissolution
judgment, the MassMutual policy constituted marital
property that was subject to equitable division and that
both parties mistakenly assigned the policy no value.
On the other hand, she also argues that the parties
were mutually mistaken when they failed to include the
income from the MassMutual policy in their calculation
of her alimony benefit. Putting aside the fact that these
two differing positions reflect that the plaintiff is unable
to articulate clearly the purported mutual mistake, the
transcript from the 2016 hearing at which the original
dissolution judgment was rendered does not support
either theory.7
Contrary to the plaintiff’s assertions, therefore, we
conclude that an evidentiary hearing was required to
resolve the plaintiff’s motion to open. That conclusion
is consistent with our case law, which makes clear that
when deciding a motion to open on the basis of mistake,
due process generally requires that the parties be given
an opportunity to present evidence. ‘‘A motion to open
a stipulated judgment, when grounded on mistake or
duress, necessarily requires the court to make a factual
determination before it can exercise its discretion to
grant or deny the motion . . . . In making its factual
determination whether a stipulated judgment should be
opened, the court must inquire into whether the decree
itself was obtained by fraud, duress, accident or mis-
take. . . . When such a factual determination must be
made, due process requires a hearing to provide the
parties with an opportunity to present evidence.’’ (Cita-
tion omitted; internal quotation marks omitted.) Hous-
ing Authority v. Goodwin, 108 Conn. App. 500, 507,
949 A.2d 494 (2008).
Because the court failed to conduct an evidentiary
hearing that comported with due process, its order
opening the judgment as to financial matters must be
reversed. In addition, because the court improperly
opened the judgment, it lacked the authority to issue
the new financial orders the plaintiff seeks to challenge
in this appeal. See Callahan v. Callahan, 157 Conn.
App. 78, 81, 116 A.3d 317 (court reversed judgment
issuing substitute financial orders and remanded case
with direction to reinstate original financial orders
where trial court did not have authority to open dissolu-
tion judgment), cert. denied, 317 Conn. 913, 116 A.3d
812 (2015), and cert. denied, 317 Conn. 914, 116 A.3d 813
(2015). Accordingly, we need not address the plaintiff’s
claims regarding those financial orders.
The judgment is reversed and the case is remanded
with direction to reinstate the April 5, 2016 financial
orders and to hold a new hearing on the motion to open.
In this opinion the other judges concurred.
1
‘‘In Oneglia v. Oneglia, [supra, 14 Conn. App. 269–70], this court held
that, in considering a motion to open on the basis of fraud, a court must
first make a preliminary determination of whether there is probable cause
to believe that the judgment was obtained by fraud. Oneglia and its progeny
are grounded in the principle of the finality of judgments. . . . [T]he finality
of judgments principle recognizes the interest of the public as well as that
of the parties [that] there be fixed a time after the expiration of which the
controversy is to be regarded as settled and the parties freed of obligations
to act further by virtue of having been summoned into or having appeared
in the case. . . . Without such a rule, no judgment could be relied on. . . .
Oneglia carefully balanced that interest in finality with the reality that in
some situations, the principle of protection of the finality of judgments must
give way to the principle of fairness and equity. . . . The court in Oneglia
thus ratified the gatekeeping mechanism employed by the trial court,
whereby a court presented with a motion to open by a party alleging fraud
in a postjudgment dissolution proceeding conducts a preliminary hearing
to determine whether the allegations are substantiated. . . . [I]f the plaintiff
was able to substantiate her allegations of fraud beyond mere suspicion,
then the court [properly] 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 completed and another hearing held. . . .
This preliminary hearing 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 [or she] will prevail, only that there is probable cause to sustain the
validity of the claim.’’ (Citation omitted; footnote omitted; internal quotation
marks omitted.) Karen v. Loftus, 210 Conn. App. 289, 297–98, 270 A.3d
126 (2022).
2
The court also stated that, after reviewing the case file in preparation
for the trial, it was ‘‘firmly convinced’’ that any misunderstanding concerning
the MassMutual policy was limited to the plaintiff and that there was at
most a unilateral mistake, not a mutual mistake. Nevertheless, because it
was unclear to the court whether it had the inherent authority to vacate
another judge’s earlier order opening a judgment, it proceeded with the trial
of the opened dissolution matter.
3
The defendant also claims, and the parties seem to dispute, whether
proper notice was given that the court would actually consider and rule on
the plaintiff’s motion to open the judgment rather than conduct a preliminary
Oneglia hearing. See footnote 1 of this opinion. The defendant also argues
that, because an Oneglia hearing is held only to determine whether there
is probable cause to believe the original judgment was obtained by fraud,
it was improper for the court to open the judgment at this type of hearing
on the basis of a finding of mutual mistake. Because the record is unclear
as to whether the hearing was scheduled solely for the purpose of addressing
the narrow question of whether there was probable cause to believe that
the defendant had committed fraud and because we nevertheless conclude
that the court conducted the hearing in a manner that deprived the defendant
of due process when it opened the judgment, we need not address these
claims.
4
The court and the parties’ attorneys engaged in the following colloquy:
‘‘The Court: Here’s the real question as far as I’m concerned. Let me take
five minutes and read the transcript.
‘‘[McGrath]: And Your Honor, both sides filed memoranda of law in prepa-
ration.
‘‘The Court: I want to answer my question first. . . . If he is collecting
on another disability policy, then he’s got to pay her 30 percent of that.
. . . It’s income and he owes her 30 percent of it, period.
‘‘[Rome]: I agree with you 100 percent, Your Honor.
‘‘The Court: So, what are we talking about?
‘‘[Rome]: So, let me explain what happened. . . . [The plaintiff] filed a
motion for contempt and a motion for modification to get the 30 percent
paid. Judge Abery-Wetstone ruled denying those motions because of the
language in the separation agreement that says ‘earned income,’ and because
the . . . MassMutual [policy] is paid with after tax dollars, it was not earned
income . . . .
***
‘‘[McGrath]: So, Your Honor, if you look to the actual language of the
judgment there were two versions of the agreement. One of which was
crossed out and initialed by the parties and was replaced with another one.
And what they initially bargained for was that [the defendant] would pay
alimony up to age sixty-two and . . . it changed to sixty-five. . . . And, in
addition to that change, with that change, what they bargained for was they
changed the term ‘any income or gross income’ to ‘earned income’ and earned
income explicitly included this [MassMutual policy]. . . . Judge Connors
specifically . . . concluded and entered an order saying that earned income
did not include any distributions from his MassMutual [policy]. He had
that hearing. Evidence was presented, legal argument was made and Judge
Connors found that that was not included and denied [the plaintiff’s] motion
for contempt. . . .
‘‘The Court: But why am I doing this? . . .
‘‘[Rome]: . . . The issue . . . is exactly your point, Your Honor, is that
this intent and your language that you read in the transcript says exactly
if you get any check, you pay her 30 percent. That was my client’s understand-
ing. He had a MassMutual policy at the day of the divorce. He was disabled
at the day of the divorce according to his own testimony under oath today.
‘‘The Court: Forget about being disabled. I don’t care about any—you are
making this ten times more complicated than it is. It is not complicated.
He got a check. He owed her 30 percent as far as I’m concerned, but the
question is, am I overruling somebody else’s order?
‘‘[Rome]: No. This is a new motion, Your Honor, and all today is about
is whether we have probable cause to do additional discovery. They won’t
even turn over how much he’s getting. . . .
‘‘The Court: Sir, how much are you getting from MassMutual?
‘‘[McGrath]: Your Honor, for the record I object.
‘‘The Court: Fine. How much are you getting?
‘‘[The Defendant]: About $6000 something per month.
‘‘The Court: So, six—
‘‘[The Defendant]: Between $6000 and $7000, I’m not sure exactly the num-
ber.
‘‘The Court: All right. So, let’s say it’s $6000. So, 30 percent of $6000 is what?
‘‘[Rome]: $1800, Your Honor.
‘‘The Court: So, it’s $1800 and you probably spent over [$15,000] on legal
fees in this case already and terrific. This is absolutely ridiculous, absolutely
ridiculous.’’
5
The court stated: ‘‘So, we’re arguing over $18,000. You have each blown
$15,000 and you are each guaranteed to pay another $15,000 based on my
ruling today, which could be right or could be wrong, and if that’s what
you want to do with your money, God bless you, and there isn’t a thing I
can do to stop you. You’re a doctor. You have a brain. This is purely a
financial thing. Figure out a way to settle this case. I mean it’s just ridiculous.
But as far as the ruling is concerned, I’ve reopened it. And now you can
either act like grownups and settle the case or you can appeal and if I get
reversed on appeal you can come back and spend another $15,000 rearguing
it. If that’s what you want to do, go do it.’’
6
The following colloquy took place:
‘‘[McGrath]: For purposes of the record, are you making a finding that
there is probable cause that a fraud existed here?
‘‘The Court: No, not fraud, mutual mistake. I don’t approve of the mentality
of either of these people, but I don’t think it was fraud because it was listed
on his financial affidavit and it’s even conceivable to me that it didn’t even
occur to him at that point that he was going to be able to collect on that
policy. I’m not claiming fraud but on the question of fundamental fairness
and mutual mistake she is entitled to that money.’’
7
Although there was an exchange on the record between the court and
the parties about the defendant’s obligation to pay some portion of his
veteran disability benefits as alimony, there was no discussion whatsoever
of the MassMutual policy:
‘‘The Court: So, you—if you go and you get V.A. money, a V.A. disability,
you have to give her 30 percent of the gross of that V.A. disability and then
you have an affirmative obligation to provide her with copies of your tax
returns every year. And if you find any employment to supplement your
income, you have to pay her 30 percent of that . . . you understand that?
‘‘[The Defendant]: Yes, Your Honor.
‘‘The Court: And you understand what I’ve just said? You have to answer
out loud.
‘‘[The Plaintiff]: Yes, Your Honor, yes.’’