Colby v. Colby , 190 Conn. App. 140 ( 2019 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
DIANE COLBY v. ARTHUR COLBY
(AC 41102)
Lavine, Prescott and Elgo, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dissolved
pursuant to a California dissolution judgment, appealed to this court
from the judgment of the trial court denying his motion for relief from
a 2007 stipulation of the parties that had been approved and adopted
as an order by the California court. Pursuant to the stipulation, the
parties agreed that the defendant owed the plaintiff $241,416 in past
due child support payments plus interest. The stipulation also included
an acknowledgement that the defendant was advised to seek legal coun-
sel regarding the terms and execution of the stipulation but that he
freely and voluntarily elected to represent himself. In an unrelated per-
sonal injury action brought by the defendant against the plaintiff, the
parties entered into a settlement agreement pursuant to which the defen-
dant acknowledged the debt that he owed to the plaintiff pursuant to
the 2007 order and the defendant received $48,000, which was credited
toward the satisfaction of that debt. In 2016, the plaintiff domesticated
the 2007 order in Connecticut pursuant to statute (§ 46b-71) and filed,
inter alia, a motion for contempt, alleging various arrearages. Thereafter,
the defendant filed the subject motion for relief from the 2007 order on
the grounds that the stipulation was the product of fraud and that he
had signed it while under duress. Following a hearing, the trial court
denied the motions for contempt and for relief from the 2007 order,
and ordered the defendant to pay the stipulated amount plus accrued
interest. In its memorandum of decision, the court detailed its application
of California law to the defendant’s claims and found that there a paucity
of credible evidence that the defendant was under duress when he
executed the stipulation, and that he failed to apply for the relief or
protections offered by the applicable California provisions within the
time limitations that California law provided. Thereafter, the court
granted the defendant’s motion to reargue and determined that the
defendant owed the plaintiff $397,523.96, which consisted of $241,416
pursuant to the 2007 order minus the $48,000 settlement credit, plus
postjudgment interest. On the defendant’s appeal to this court, held:
1. The trial court did not abuse its discretion in denying the defendant’s
motion for relief from the 2007 order on the ground that he failed to
timely seek relief under California law, as that court’s finding that there
was no extrinsic fraud was not clearly erroneous; the record revealed
that the defendant did not present any evidence that the plaintiff pre-
vented him from timely presenting a claim seeking relief from the stipula-
tion due to alleged inaccuracies within it regarding the amount of the
arrearage, that the stipulation advised the defendant to seek counsel
regarding its terms, but the defendant voluntarily elected not to do so,
and that not only did the defendant fail to avail himself of the protections
offered under California law following the entry of 2007 order, but he
also, while represented by counsel, reiterated and acknowledged the
arrearage that he owed to the plaintiff when he settled the personal
injury case.
2. Contrary to the defendant’s claim, the trial court properly calculated
postjudgment interest; the 2007 order constituted a money judgment,
which, under California law, bears statutory postjudgment interest on
the principal and accrued interest, and, therefore, the court properly
calculated postjudgment interest on the basis of the entire balance owed
by the defendant.
Argued February 8—officially released May 21, 2019
Procedural History
Action to enforce a foreign judgment of dissolution,
brought to the Superior Court in the judicial district
of Hartford, where the court, Nastri, J., denied the
defendant’s motion for relief from a certain stipulation
of the parties that had been approved and adopted as
an order by the foreign court; thereafter, the court,
Nastri, J., granted the defendant’s motion to reargue
and modified the amount that the defendant owed to
the plaintiff, and the defendant appealed to this
court. Affirmed.
Patrick W. Boatman, with whom, on the brief, was
Erin E. Boatman, for the appellant (defendant).
Diane Frances Colby, self-represented, the appellee
(plaintiff) filed a brief.
Opinion
LAVINE, J. The defendant, Arthur Colby, appeals
from the judgment of the trial court rendered after the
plaintiff, Diane Colby, sought to enforce a California
judgment pursuant to General Statutes § 46b-70 et seq.1
On appeal, the defendant claims that the court improp-
erly (1) denied him relief from the California judgment,
(2) declined to order the plaintiff to produce receipts
in support of child support expenditures,2 and (3) calcu-
lated postjudgment interest. We affirm the judgment of
the trial court.
The following facts, as found by the trial court, and
procedural history underlie this appeal. The parties
were married on February 23, 1980, and they have one
child who was born in 1988. The marriage broke down,
and they divorced. On April 19, 1996, the parties entered
into a marital settlement agreement. On October 4, 1996,
this agreement, which required the defendant to pay
child and spousal support, was approved by and incor-
porated into a dissolution judgment in the California
Superior Court. According to the judgment, the defen-
dant was to pay $1080 per month to the plaintiff for
child support until their child reached age nineteen,
died, or was emancipated; to pay one half of child care
costs, education expenses, and medical expenses; to
pay a percentage of additional income he earned; and
to maintain a life insurance policy. Additionally, the
defendant was to pay the plaintiff spousal support of
$120 per month.
The defendant sought a modification of the dissolu-
tion judgment due to a reduction in his income. On
November 16, 2000, following a hearing, the dissolution
judgment was modified by the California Superior
Court. By the terms of the modification, the defendant
was to pay child support of $531 per month until Febru-
ary, 2001, when child support was reduced to $497 per
month; to pay $150 per month toward the child support
arrearage; and to pay one half of the child’s tutoring
expenses with the plaintiff providing receipts.
The defendant failed to abide by the terms of the
modification, and, on April 25, 2007, the plaintiff filed
an application in the California Superior Court for an
assignment order and determination of arrearages,
alleging that the defendant had not paid the full amount
of child support; had not contributed to medical
expenses, child care costs, or education costs; did not
maintain a life insurance policy or reimburse the plain-
tiff for life insurance premiums that she paid on his
behalf; and had not paid spousal support.
On July 12, 2007, the parties entered into a stipulation
that was approved and adopted as an order of the Cali-
fornia Superior Court (2007 judgment). Pursuant to the
2007 judgment, the parties agreed that the defendant
owed the plaintiff a total of $241,416 in past due child
support payments plus interest.3 Included in the stipula-
tion was an acknowledgement by the parties that the
defendant was advised to seek legal counsel regarding
the terms and execution of the stipulation, but that he
‘‘freely and voluntarily elected to represent himself
. . . .’’ There were no further proceedings in the matter
subsequent to the 2007 judgment.
In 2006, the plaintiff’s dog bit the defendant’s face,
and he commenced a personal injury action against the
plaintiff. The action was resolved by means of an August
27, 2009 settlement. Pursuant to the settlement, the
defendant acknowledged the $241,416 debt he owed to
the plaintiff pursuant to the 2007 judgment. When he
entered into the settlement and signed the release, the
defendant was represented by counsel who stated that
he ‘‘fully explained the terms and conditions of the
foregoing [r]elease . . . to [the defendant], that [the
defendant] acknowledged . . . that he understands
said [r]elease and the legal effects thereof, [and that
counsel] believe[d] that [the defendant] understands
the [r]elease and the legal effect of the [r]elease . . . .’’
Pursuant to the settlement agreement, the defendant
received $48,000 in the form of credit toward the satis-
faction of the 2007 judgment.
In March, 2016, the plaintiff filed the 2007 judgment
in Connecticut pursuant to General Statutes § 46b-71.
On April 7, 2016, she filed a motion for contempt, dated
March 29, 2016, alleging various arrearages, and filed
a motion to implead4 on August 10, 2016. On August
15, 2016, the defendant filed a motion for relief from
the 2007 judgment on the grounds of fraud and duress.5
A hearing on the motions took place on December 9,
2016, and January 5, 6 and 31, 2017.
On August 2, 2017, the court denied the motions for
contempt, to implead, and for relief, and ordered the
defendant to pay the plaintiff $465,498.29 in installments
with interest accruing at a rate of 10 percent. In its
memorandum of decision, the court detailed its applica-
tion of California law, including California Code of Civil
Procedure § 4736 and California Family Code § 2122,7
to the defendant’s claims and found that, not only was
there a ‘‘paucity of credible evidence that the defendant
was under duress when he executed the stipulation,’’
but that the defendant failed to apply for the relief or
protections offered by the California provisions within
the time limitations that California law provided.
The defendant filed a motion to reargue on August
22, 2017, challenging the court’s calculation of the
arrearage amount. The court granted the defendant’s
motion and heard oral argument on October 26, 2017.
On November 6, 2017, the court determined that the
defendant was liable to the plaintiff in the amount of
$397,523.96. This total consisted of $241,416 pursuant
to the 2007 judgment, less a $48,000 credit from the
dog bite settlement, plus postjudgment interest. The
defendant appealed to this court.8 Additional facts will
be set forth as necessary.
Before addressing the merits of the plaintiff’s claims,
we set forth the standard for our review and relevant
legal principles. ‘‘Foreign matrimonial judgments may
be enforced, modified or otherwise dealt with in Con-
necticut pursuant to the provisions of General Statutes
§§ 46b-70 through 46b-75. Section 46b-71 requires the
filing of a certified copy of a foreign matrimonial judg-
ment in the courts of this state where enforcement is
sought and empowers the courts of this state to treat
such a judgment in the same manner as any like judg-
ment of a court of this state. . . . When modifying a
foreign matrimonial judgment, a Connecticut court
must apply the substantive law of the foreign jurisdic-
tion.’’ (Citation omitted; internal quotation marks omit-
ted.) Lindo v. Lindo, 48 Conn. App. 645, 649, 710 A.2d
1387 (1998).
Under California law, ‘‘[e]ither party [to a stipulation]
may move the court to be relieved from the binding
effect of a stipulation previously entered into, and it is
within the sound discretion of the trial court whether
or not such relief should be granted; in this regard the
decision of the trial court will not be disturbed by an
appellate court absent an abuse of discretion. . . . The
grounds upon which the trial court may exercise its
discretion [to grant relief from a stipulation] are that
the stipulation was entered into as the result of fraud,
misrepresentation, mistake of fact, or excusable neglect
. . . that the facts have changed, or that there is some
other special circumstance rendering it unjust to
enforce the stipulation.’’ (Citations omitted.) People v.
Trujillo, 67 Cal. App. 3d 547, 554–55, 136 Cal. Rptr.
672 (1977).
‘‘[T]he standard of review in family matters is well
settled. An appellate court will not disturb a trial court’s
orders in domestic relations cases unless the court has
abused its discretion or it is found that it could not
reasonably conclude as it did, based on the facts pre-
sented. . . . In determining whether a trial court has
abused its broad discretion in domestic relations mat-
ters, we allow every reasonable presumption in favor
of the correctness of its action. . . . Appellate review
of a trial court’s findings of fact is governed by the
clearly erroneous standard of review. . . . A finding
of fact is clearly erroneous when there is no evidence
in the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed. . . . Our def-
erential standard of review, however, does not extend
to the court’s interpretation of and application of the
law to the facts. It is axiomatic that a matter of law is
entitled to plenary review on appeal.’’ (Citation omitted;
footnote omitted; internal quotation marks omitted.)
Princess Q. H. v. Robert H., 150 Conn. App. 105, 111–12,
89 A.3d 896 (2014).
I
The defendant claims that the court improperly (1)
denied his request for relief from the 2007 judgment and
(2) declined to order the plaintiff to produce receipts
in support of the court’s calculation of arrearage that
was agreed to in the stipulation. In essence, the defen-
dant argues that the court failed to engage in an analysis
of the accuracy of the arrearage as agreed to in the
stipulation, and, because the arrearage was inaccurate,
the 2007 judgment should have been set aside due to
extrinsic fraud. We disagree.
The court determined that, although there were pro-
tections available to the defendant under California
Code of Civil Procedure § 473 and California Family
Code § 2122,9 the defendant failed to timely raise any
claims regarding the stipulation. The court found that
after the stipulation was adopted as an order of the
court on July 12, 2007, there were no further proceed-
ings in the matter. Further, the defendant failed to artic-
ulate why he could not have timely availed himself of
the protections offered to him under California law.
Rather, the defendant argues an exception to the time
limitations due to extrinsic fraud, and faults the court
for failing to make findings regarding whether equitable
relief was warranted due to the claimed inaccuracies
within the stipulation.
‘‘Extrinsic fraud occurs when a party is deprived of
the opportunity to present his claim or defense to the
court; where he was kept ignorant or, other than from
his own negligence, fraudulently prevented from fully
participating in the proceeding. . . . Examples of
extrinsic fraud are: concealment of the existence of a
community property asset, failure to give notice of the
action to the other party, and convincing the other party
not to obtain counsel because the matter will not pro-
ceed . . . . The essence of extrinsic fraud is one par-
ty’s preventing the other from having his day in
court.’’(Citations omitted; internal quotation marks
omitted.) Estate of McGuigan, 83 Cal. App. 4th 639,
649–50, 99 Cal. Rptr. 2d 887 (2000).
The defendant did not present to the court any evi-
dence that the plaintiff prevented him from timely pre-
senting a claim seeking relief from the stipulation due
to inaccuracies within it. Additionally, the stipulation
itself advised the defendant to seek counsel regarding
its terms, but the defendant voluntarily elected not to
do so. Not only did the defendant fail to avail himself
of the protections offered under California law after
the 2007 judgment was entered, but he also, while repre-
sented by counsel, reiterated and acknowledged the
arrearage he owed to the plaintiff when he settled the
personal injury case in 2009. We conclude that the
court’s finding of no extrinsic fraud is not clearly errone-
ous and that the court did not abuse its discretion by
denying relief to the defendant from the 2007 judgment
on the ground of his failure to timely seek relief.
The defendant additionally takes issue with the
expenses outlined within the stipulation and argues that
the trial court improperly failed to engage in an analysis
of the accuracy of the arrearage to which he agreed.
Because we conclude that the court did not err in deny-
ing the defendant relief from the 2007 judgment, we
need not address the defendant’s argument that the
terms within the 2007 judgment, which he willingly
agreed to more than ten years before bringing a claim
challenging the calculation of the arrearage, were inac-
curate. For this same reason, the defendant’s second
claim, that the court erred in declining to order the
plaintiff to produce receipts in support of the stipula-
tion’s arrearage calculation, also fails.
II
The defendant’s final claim is that the court improp-
erly calculated postjudgment interest. Specifically, the
defendant argues that the court improperly applied
interest to the total arrearage, which included accrued
interest, rather than to the principal amount of the
arrearage, and that he should not be responsible for
the compounded interest. We disagree.
In calculating the postjudgment interest, the court
properly determined that ‘‘[u]nder California law, inter-
est continues to accrue on both the principal amount of
the arrearages as well as the interest already accrued.’’
‘‘[California] Code of Civil Procedure [§] 685.020 con-
tains the basic rule for calculating postjudgment inter-
est . . . . [I]nterest commences to accrue on a money
judgment on the date of entry of the judgment. . . .
Unless the judgment otherwise provides, if a money
judgment is payable in installments, interest com-
mences to accrue as to each installment on the date
the installment becomes due.
‘‘Further, [California] Code of Civil Procedure [§]
685.010, subdivision (a) establishes that [i]nterest
accrues at the rate of 10 percent per annum on the
principal amount of a money judgment remaining
unsatisfied. . . .
‘‘Delinquent child support payments accrue postjudg-
ment interest under the rules applicable to installment
judgments. Statutory interest on unpaid child support
payments accrues as a matter of law as to each install-
ment when each installment becomes due. . . .
Accrued arrearages are treated like a money judgment
for purposes of assessing statutory interest. Unless oth-
erwise specified in the judgment, interest accrues as to
each installment when each installment becomes due
and continues to accrue for so long as the arrearage
remains unpaid. . . . Because accrued arrearages are
treated like money judgments, courts cannot retroac-
tively modify or terminate the arrearages. . . . Interest
accrues as a matter of law [on unpaid child support],
and parents are charged with knowledge of the law.’’
(Citations omitted; emphasis in original; internal quota-
tion marks omitted.) In re Marriage of McClellan, 130
Cal. App. 4th 247, 250–51, 30 Cal. Rptr. 3d 5 (2005).
‘‘After [a judgment], postjudgment interest accrues
on any unpaid principal and interest.’’ (Emphasis in
original.) Brown v. California Unemployment Ins.
Appeals Board, 20 Cal. App. 5th 1107, 1119, 229 Cal.
Rptr. 3d 710 (2018). ‘‘[I]t has generally been held that
a judgment bears interest on the whole amount thereof,
although such amount is made up partly of interest on
the original obligation, and even though the interest is
separately stated in the judgment. This rule is not
affected by statutes which prohibit the allowance of
compound interest . . . .’’ (Emphasis added; internal
quotation marks omitted.) Big Bear Properties, Inc. v.
Gherman, 95 Cal. App. 3d 908, 915, 157 Cal. Rptr. 443
(1979). ‘‘Another common situation in which interest
on interest is allowed is when prejudgment interest is
incorporated in a judgment which then bears interest.’’
Westbrook v. Fairchild, 7 Cal. App. 4th 889, 895, 9 Cal.
Rptr. 2d 277 (1992).
In the present case, the 2007 judgment constituted a
money judgment, which, under California law, bears
statutory postjudgment interest on the principal and
accrued interest. We, therefore, conclude that the court
properly calculated postjudgment interest on the basis
of the entire balance owed by the defendant from the
amount agreed to in the stipulation.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes §§ 46b-70 through 46b-75 govern the enforcement of
foreign matrimonial judgments. General Statutes § 46b-71 (a) provides: ‘‘Any
party to an action in which a foreign matrimonial judgment has been ren-
dered, shall file, with a certified copy of the foreign matrimonial judgment,
in the court in this state in which enforcement of such judgment is sought,
a certification that such judgment is final, has not been modified, altered,
amended, set aside or vacated and that the enforcement of such judgment
has not been stayed or suspended, and such certificate shall set forth the
full name and last-known address of the other party to such judgment and
the name and address of the court in the foreign state which rendered
such judgment.’’
2
The defendant argues that the trial court erred in denying him relief
from the California judgment, in part, because it failed to engage in an
analysis of the accuracy of the arrearage as stated in the judgment and to
order the plaintiff to produce receipts in support thereof. We, therefore,
address these claims together.
3
The parties agreed in relevant part:
‘‘1. As of March 19, 2007, the [defendant] owes to [the plaintiff] a total
of $241,416.00 in arrearages as follows:
‘‘A. Spousal support arrearages: $10,440.00 principal, $7,178.00 interest,
totaling $17,618.00.
‘‘B. As of March 19, 2007, the [defendant] owes to the [plaintiff] the
following child support arrearages:
‘‘b. Base Child Support: $86,500.00 principal, $51,676.00 interest, total-
ing $138,176.00.
‘‘c. Medical Support: $13,375.00 principal, $8,046.00 interest, totaling
$21,421.00.
‘‘d. Child Care Expenses: $9,454.00 principal, $8,077.00 interest, totaling
$17,531.00.
‘‘e. Remedial Education: $25,212.00 principal, $11,851.00 interest, total-
ing $37,063.00.
‘‘f. Life Insurance Premiums: $6,300.00 principal, $3,307.00 interest, total-
ing $9,607.00.
‘‘3. Interest on the foregoing child support amounts, as well as principal
amounts, shall constitute child support and not spousal support or family
support.’’
4
The plaintiff sought to implead the defendant’s present wife, Jane Colby,
and also sought to implead, on April 16, 2016, the defendant’s mother, Laura
Colby, who passed away before the court ruled on the motion.
5
The defendant alleged in his motion that the stipulation ‘‘is the product
of fraud and/or mistake as it does not comport with intervening orders
which modified the [dissolution judgment and] as a result, the stipulation
overstates the arrearages, includes support obligations which no longer
apply . . . and does not give the defendant credit for cash payments he
tendered to [the plaintiff] . . . .’’ Additionally, the defendant alleged that
he signed the stipulation under duress, while he was unrepresented by
counsel, was recovering from dog bite injuries, and was in a state of fear
as he alleged that the plaintiff’s counsel stated that if he did not sign the
stipulation that he would spend ninety days in jail. The trial court found
that, when the defendant signed the stipulation, he was in a law office in
Connecticut and was not in the presence of the plaintiff’s counsel. It con-
cluded that the defendant was not under duress, and the defendant does
not challenge that finding on appeal. Rather, the defendant argues that the
trial court failed to consider the other grounds he alleged.
6
California Code of Civil Procedure § 473 (b) provides in relevant part:
‘‘The court may, upon any terms as may be just, relieve a party or his or
her legal representative from a judgment, dismissal, order, or other proceed-
ing taken against him or her through his or her mistake, inadvertence,
surprise, or excusable neglect. Application for this relief shall be accompa-
nied by a copy of the answer or other pleading proposed to be filed therein,
otherwise the application shall not be granted, and shall be made within a
reasonable time, in no case exceeding six months, after the judgment, dis-
missal, order, or proceeding was taken. . . .’’
7
California Family Code § 2122 provides: ‘‘The grounds and time limits
for a motion to set aside a judgment, or any part or parts thereof, are
governed by this section and shall be one of the following: (a) Actual fraud
where the defrauded party was kept in ignorance or in some other manner
was fraudulently prevented from fully participating in the proceeding. An
action or motion based on fraud shall be brought within one year after the
date on which the complaining party either did discover, or should have
discovered, the fraud. (b) Perjury. An action or motion based on perjury in
the preliminary or final declaration of disclosure, the waiver of the final
declaration of disclosure, or in the current income and expense statement
shall be brought within one year after the date on which the complaining
party either did discover, or should have discovered, the perjury. (c) Duress.
An action or motion based upon duress shall be brought within two years
after the date of entry of judgment. (d) Mental incapacity. An action or
motion based on mental incapacity shall be brought within two years after
the date of entry of judgment. (e) As to stipulated or uncontested judgments
or that part of a judgment stipulated to by the parties, mistake, either mutual
or unilateral, whether mistake of law or mistake of fact. An action or motion
based on mistake shall be brought within one year after the date of entry
of judgment. (f) Failure to comply with the disclosure requirements of
Chapter 9 (commencing with Section 2100). An action or motion based on
failure to comply with the disclosure requirements shall be brought within
one year after the date on which the complaining party either discovered,
or should have discovered, the failure to comply.’’
8
The plaintiff did not attend oral argument before this court. Therefore,
this matter was considered on the basis of both parties’ briefs, the defen-
dant’s oral argument, and the record.
9
The defendant makes the additional argument that the court erred in
relying on California Code of Civil Procedure § 473 and California Family
Code § 2122 instead of relying on California Family Code § 3691, which
provides in relevant part: ‘‘The grounds and time limits for an action or
motion to set aside a support order, or any part or parts thereof, are governed
by this section and shall be one of the following: (a) Actual fraud. Where
the defrauded party was kept in ignorance or in some other manner, other
than his or her own lack of care or attention, was fraudulently prevented
from fully participating in the proceeding. An action or motion based on
fraud shall be brought within six months after the date on which the com-
plaining party discovered or reasonably should have discovered the fraud.
(b) Perjury. An action or motion based on perjury shall be brought within
six months after the date on which the complaining party discovered or
reasonably should have discovered the perjury. . . .’’
We reject this argument because we note that the language in California
Family Code § 3691 is practically the same language used in California
Family Code § 2122, with the only difference being that of the addition of
the phrase: ‘‘other than his or her own lack of care or attention.’’ As such,
even supposing that the court should have, as the defendant argues, applied
§ 3691, the court’s analysis would not have differed because the same time
limitations appear within § 3691 and § 2122. Additionally, the court’s factual
finding that the defendant failed to avail himself of the protection offered
by California law is unchallenged by the defendant.