Mecca v. Mecca

M
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   ELIZABETH MECCA v. WILLIAM F. MECCA, JR.
                 (AC 43293)
                     Moll, Alexander and DiPentima, Js.

                                    Syllabus

The defendant, whose marriage to the defendant had previously been dis-
    solved, appealed from the decision of the trial court denying his motion
    to open the judgment of dissolution. Prior to the commencement of the
    dissolution action, the plaintiff forwarded to the defendant an e-mail,
    which he did not read, which contained information relating to certain
    pending litigation involving the estate of the plaintiff’s uncle. The dissolu-
    tion judgment incorporated the parties’ separation agreement, in which
    the defendant expressly waived any right to proceeds to be received by
    the plaintiff in the future as a result of the estate litigation. More than
    four months later, the defendant filed a motion to open the judgment,
    claiming that the judgment was obtained as a result of fraudulent misrep-
    resentations by the plaintiff and that the plaintiff failed to disclose her
    receipt of an inheritance related to a settlement of the estate litigation.
    The court denied the motion, finding that the defendant chose not to
    read the documents regarding the litigation, which were disclosed by
    the plaintiff, and that there was no fraud on the part of the plaintiff.
    On the defendant’s appeal, held:
1. The defendant could not prevail on his claim that the trial court abused
    its discretion when it applied an incorrect legal standard in denying his
    motion to open: contrary to the defendant’s claim, the court did not
    improperly assign him a duty of due diligence; the court simply acknowl-
    edged that a party to a dissolution action cannot ignore documents that
    were appropriately delivered to him, only to later claim that the disclosed
    potential asset was fraudulently withheld from him, which was particu-
    larly true in the present case, where the defendant had ample time
    and opportunity to review the disclosures, the plaintiff informed the
    defendant of the potential asset, the defendant signed a separation
    agreement wherein he waived any right to the potential asset, and the
    separation agreement was incorporated into the judgment of dissolution;
    moreover, the court correctly applied the elements of fraud in addressing
    the defendant’s claim and found that there was no fraud on the part of the
    plaintiff because the plaintiff clearly disclosed her intangible, potential
    interest in the estate to the defendant with ample time for him to review
    the disclosure, and, by focusing on whether the plaintiff disclosed and
    characterized the asset in the documents provided to the defendant, it
    was clear that the court applied the appropriate legal standard.
2. The defendant’s claim that the trial court abused its discretion by failing
    to consider a pattern of fraudulent conduct on the part of the plaintiff
    was without merit; the court found that the plaintiff made appropriate
    disclosures to the defendant, expressly stating that there was no fraud,
    and this court’s review of the record supported that court’s conclusion
    because the plaintiff’s potential asset, which was known to the defen-
    dant, involved a contested estate in Canada, and the final settlement of
    the litigation related to the estate occurred almost one year after the
    judgment of dissolution was rendered.
       Argued December 1, 2020—officially released March 30, 2021

                              Procedural History

   Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Fairfield and tried to the court, Truglia, J.;
judgment dissolving the marriage and granting certain
other relief in accordance with the parties’ separation
agreement; thereafter, the court, Rodriguez, J., denied
the defendant’s motion to open the judgment, from
which the defendant appealed to this court. Affirmed.
  Sheila S. Charmoy, for the appellant (defendant).
 Jonathan E. Von Kohorn, with whom, on the brief,
was Tara L. Von Kohorn, for the appellee (plaintiff).
                           Opinion

   ALEXANDER, J. The defendant, William F. Mecca,
Jr., appeals from the decision of the trial court denying
his motion to open the judgment of dissolution. On
appeal, he argues that the court abused its discretion
by (1) applying an incorrect legal standard with respect
to his motion to open and (2) failing to consider a
pattern of fraudulent conduct on the part of the plaintiff,
Elizabeth Mecca. We disagree and affirm the judgment
of the trial court.
   The following facts and procedural history are rele-
vant to our resolution of this appeal. The parties were
married on June 18, 2000, in Portland. On June 4, 2015,
the plaintiff’s uncle, Bernard ‘‘Birdie’’ Marcus (Birdie
Marcus), died. On December 21, 2015, the plaintiff for-
warded an e-mail to the defendant, which he received
but did not read. The e-mail contained details of a com-
plaint filed in Canada by the plaintiff and other members
of the Marcus family alleging that Birdie Marcus had
been manipulated by his caretakers into executing a
will that excluded his family members. This e-mail also
contained a statement from the Canada Trust Company,
dated November 5, 2015, that listed the gross value of
the Estate of Birdie Marcus at C$5,809,294.15. Because
the will of Birdie Marcus was contested and benefited
a large number of third parties, the final settlement of
the estate required extensive litigation that took place
over a period of nearly four years.
   In June, 2017, the plaintiff instituted the underlying
dissolution action. On February 20, 2018, the marriage
of the parties was dissolved by the court and the dissolu-
tion judgment incorporated the parties’ separation
agreement. Under the terms of the separation agree-
ment, the defendant expressly ‘‘waive[d] any right, title
or interest in and any proceeds to be received by the
[plaintiff] in the future as a result of [the pending] litiga-
tion in [Canada] involving the . . . [Estate of] Birdie
Marcus . . . .’’1
  On December 14, 2018, the defendant filed a motion
to open the judgment of dissolution, alleging that the
judgment was obtained as a result of fraudulent misrep-
resentations made by the plaintiff.2 Specifically, the
defendant asserted that the plaintiff ‘‘made material
misrepresentations on her [f]inancial [a]ffidavit inas-
much as she failed to disclose her receipt of an inheri-
tance, that had already happened or was imminent,
because she had entered into a settlement agreement
as the result of a will contest . . . [that] ha[d] been
pending in the Superior Court of Quebec . . . [in] the
Estate of Birdie Marcus . . . .’’ (Internal quotation
marks omitted.) The defendant further argued that the
plaintiff ‘‘failed to list her interest in [the Estate of
Birdie Marcus and the related] action during the entire
pendency of the dissolution action . . . [and] made
material misrepresentation[s] at her deposition on Janu-
ary 23, 2018 . . . .’’
   The court, Rodriguez, J., held a hearing on the defen-
dant’s motion to open on June 4 and 14, 2019. In denying
the motion, the court found the following: ‘‘[T]he plain-
tiff disclosed a possible interest . . . in [the Estate of
Birdie Marcus] . . . . [T]he plaintiff did not conceal
anything . . . [and] disclosed what she knew of the
existence of the claims in Canada. . . . [The defen-
dant] chose not to read the documents and to not make
a claim, waiving it in the separation agreement. There-
fore . . . there is no fraud in this case . . . .’’ This
appeal followed.3
                             I
  The defendant first claims that the court abused its
discretion by applying an incorrect legal standard in
denying the motion to open. He argues that the court
improperly (1) assigned to him a duty of due diligence
and (2) failed to consider the proper elements of fraud
in a marital dissolution action. We disagree.
                            A
    The defendant first argues that the court improperly
assigned to him a duty of diligence. Specifically, he
claims that, with regard to the Estate of Birdie Marcus,
‘‘[the plaintiff] was required to make an investigation
of her assets using any readily available information,
and clearly disclose the results of that investigation
on her affidavit.’’ The defendant argues that the court
‘‘incorrectly placed a duty of diligence on the . . .
[d]efendant’’ and that his ‘‘waiver was not an intentional
relinquishment of a known right.’’ The plaintiff counters
that ‘‘[t]he defendant’s argument . . . ignores the fact
that [the plaintiff’s interest in the Estate of Birdie Mar-
cus] was an intangible asset properly disclosed in
advance of the judgment and separately negotiated as
an express provision of the separation agreement.’’ We
agree with the plaintiff.
  Our standard of review is well established: ‘‘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 rea-
sonable 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.’’ (Internal quotation marks omitted.)
Reville v. Reville, 

312 Conn. 428

, 440, 

93 A.3d 1076

(2014).
  The defendant claims that the court applied an incor-
rect legal standard by erroneously assigning him a duty
of due diligence. In making this claim, however, the
defendant mischaracterizes the applicable law, which
requires ‘‘a continuing duty to disclose pertinent finan-
cial information until the judgment of dissolution is
final.’’ (Internal quotation marks omitted.) Lederle v.
Spivey, 

151 Conn. App. 813

, 819, 

96 A.3d 1259

, cert.
denied, 

314 Conn. 932

, 

102 A.3d 84

(2014). In denying the
plaintiff’s motion, the court made the following finding:
‘‘[T]he plaintiff . . . disclosed what she knew of the
existence of the claims in Canada . . . informing [the
defendant] of the existence of the claims. With that
knowledge, [the defendant] chose not to read the docu-
ments and to not make a claim, waiving it in the separa-
tion agreement.’’ The court did not place a ‘‘duty of due
diligence’’ on the defendant, as he attempts to charac-
terize its determination. Rather, the court simply
acknowledged that a party to a dissolution action can-
not simply ignore documents that were appropriately
delivered to him, only to later claim that the disclosed
potential asset was fraudulently withheld from him.
This is particularly true in the present case, where the
defendant had ample time and opportunity to review
the plaintiff’s disclosures. The trial court heard testi-
mony that the initial disclosure by the plaintiff of the
Estate of Birdie Marcus occurred via e-mail on Decem-
ber 21, 2015, and that an additional, related disclosure
was made on January 18, 2017. The court credited this
evidence and found that the plaintiff had informed the
defendant of the potential asset. On February 16, 2018,
the defendant signed a separation agreement, wherein
he waived any right to the potential asset from the
estate. The parties agreed to incorporate the terms of
their separation agreement, which included the defen-
dant’s waiver of any right to the potential asset from
the estate, into the court’s final judgment of dissolution
rendered on February 20, 2018.
   It is also notable that the potential asset at issue
was subject to a degree of uncertainty, as to both its
availability and value. The defendant claims that the
plaintiff failed ‘‘to make an investigation of her assets
using any readily available information, and [to] clearly
disclose the results of that investigation,’’ but in making
this claim he fails to account for the circumstances
surrounding the potential asset. The trial court clearly
addressed the uncertainty of this asset: ‘‘The court is
mindful . . . of the lengthy process involved when
claims against estates are made. No one really knows
what if any assets will result at the end of the litigation.
Therefore, the court finds that the plaintiff did not have
any knowledge of what her benefits would be nor if she
would receive any from the [Estate of Birdie Marcus]
at the time of her dissolution.’’ The record clearly sup-
ports the court’s finding because the potential asset was
timely disclosed by the plaintiff and was appropriately
classified as an intangible asset. The plaintiff met her
‘‘continuing duty to disclose pertinent financial informa-
tion’’; (internal quotation marks omitted) Lederle v.

Spivey, supra

, 

151 Conn. App. 819

; and the defendant’s
waiver in the separation agreement and in the final
judgment of dissolution was not the result of fraud. We
conclude, therefore, that the court applied the proper
legal standard and was within its discretion in denying
the defendant’s motion to open the judgment of dissolu-
tion.
                             B
   The defendant next argues that the court abused its
discretion by failing to consider the proper elements
of fraud in a marital dissolution action. The defendant
claims that the plaintiff made false factual representa-
tions at her deposition on January 23, 2018, and ‘‘com-
mitted fraud by failing to disclose the existence and
value of the Birdie Marcus case on her financial affida-
vits . . . .’’ Additionally, the defendant argues that the
plaintiff ‘‘deprived the . . . [c]ourt of being able to find
that the separation agreement was fair and equitable,’’
and that he relied on the plaintiff’s false statement and
failure to disclose to his detriment. The defendant fur-
ther claims that ‘‘[t]here was no laches or unreasonable
delay . . . after he discovered the fraud,’’ and ‘‘[t]he
evidence demonstrated that there [was] a substantial
likelihood that the result of [a] new trial [would] be
different.’’ Finally, the defendant claims that the plain-
tiff’s counsel made false representations of fact. In
response, the plaintiff argues that the defendant failed
to establish the elements of fraud necessary to support
the opening of a final judgment. We agree with the
plaintiff.
   As stated previously, ‘‘our review is limited to the
issue of whether the trial court has acted unreasonably
and in clear abuse of its discretion.’’ (Internal quotation
marks omitted.) Reville v. 

Reville, supra

, 

312 Conn. 440

.
Accordingly, we will overturn the judgment of the trial
court only if it could not reasonably have concluded
as it did.

Id.
‘‘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; (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.’’ (Internal quotation
marks omitted.) Weinstein v. Weinstein, 

275 Conn. 671

,
685, 

882 A.2d 53

(2005); see also Mattson v. Mattson,

74 Conn. App. 242

, 245–46, 

811 A.2d 256

(2002). The
elements of fraud have been defined by our Supreme
Court: ‘‘(1) a false representation was made as a state-
ment 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.’’
Billington v. Billington, 

220 Conn. 212

, 217, 

595 A.2d
1377

(1991).
  In the present case, in denying the defendant’s motion
to open, the court found the following: ‘‘[T]he plaintiff
did not conceal anything, as she disclosed what she
knew of the existence of the claims in Canada. [The
defendant] knew about the estate; telling is [the] plain-
tiff’s . . . e-mail . . . with [thirty-three] pages of doc-
uments informing [him] of the existence of the claims.
With that knowledge, [the defendant] chose to not . . .
read the documents and to not make a claim, waiving
it in the separation agreement. Therefore, the court
finds that there is no fraud in this case . . . .’’ On the
basis of our review of the record, the court was well
within its discretion in finding that there was no fraud
on the part of the plaintiff. As the court detailed, the
plaintiff clearly disclosed her intangible, potential inter-
est to the defendant, with ample time for the defendant
to review it. The defendant simply failed to review this
disclosure. By focusing on whether the plaintiff dis-
closed and characterized the asset in the documents
provided to the defendant, it is clear that the court
applied the appropriate legal standard in addressing the
defendant’s claim of fraud. Accordingly, we conclude
that the court correctly applied the elements of fraud
in this case and correctly found that there was no fraud
by the plaintiff. On the basis of our review of the record,
the court did not abuse its discretion in denying the
defendant’s motion to open.
                             II
   The defendant’s final claim is that the court abused
its discretion by failing to consider as relevant a pattern
of fraudulent conduct on the part of the plaintiff. In
response, the plaintiff argues that ‘‘[t]he defendant
failed to establish any pattern of fraud, including during
the pendente lite period.’’ We agree with the plaintiff.
  As stated previously, the applicable standard of
review for this claim is abuse of discretion, meaning
that we will not disturb the judgment of the trial court
unless it could not reasonably have concluded as it did.
Reville v. 

Reville, supra

, 

312 Conn. 440

.
   Given our discussion in part I B of this opinion regard-
ing the defendant’s allegations of fraud, it is clear that
the defendant’s claim is without merit. As we previously
noted, the court found that the plaintiff made appro-
priate disclosures to the defendant, and expressly
stated that ‘‘there is no fraud in this case . . . .’’ Our
review of the record supports the court’s conclusion
that there was no fraud, based on either a single act or
on a pattern of behavior. The plaintiff’s potential asset,
which was known to the defendant, involved a con-
tested estate in Canada. The plaintiff signed an agree-
ment to settle the Estate of Birdie Marcus litigation on
December 28, 2018, and the final settlement of that
litigation occurred on February 9, 2019, almost one
year after the judgment of dissolution was rendered.
Accordingly, the court was well within its discretion in
denying the defendant’s motion to open.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
     The ultimate resolution of the litigation involving the Estate of Birdie
Marcus did not occur until February 9, 2019, when a settlement agreement
was finalized by the court in Canada.
   2
     Although a motion to open a judgment generally must be filed within
four months of the date on which the judgment was rendered, ‘‘[General
Statutes §] 52-212a does not abrogate the court’s common-law authority to
open a judgment beyond the four month limitation upon a showing that the
judgment was obtained by fraud . . . .’’ Bruno v. Bruno, 

146 Conn. App.
214

, 230, 

76 A.3d 725

(2013).
   3
     We note that the defendant also raised an evidentiary claim in his reply
brief that ‘‘[t]he trial court committed reversible error when it excluded
excerpts of the transcript of the plaintiff’s deposition.’’ We decline to address
this claim because it was not properly raised by the defendant. See, e.g.,
Bovat v. Waterbury, 

258 Conn. 574

, 585 n.11, 

783 A.2d 1001

(2001). ‘‘Claims
of error by an appellant must be raised in his original brief . . . so that the
issue as framed by him can be fully responded to by the appellee in its
brief, and so that [an appellate court] can have the full benefit of that written
argument.’’ (Internal quotation marks omitted.) State v. Floyd, 

253 Conn.
700

, 713 n.12, 

756 A.2d 799

(2000).

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