Reinke v. Sing , 186 Conn. App. 665 ( 2018 )

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GAIL REINKE v. WALTER SING
(AC 36210)
Keller, Bright and Beach, Js.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed to this court from the judgment of the trial court
opening the dissolution judgment and issuing certain financial orders.
After this court reversed the trial court’s judgment opening and modi-
fying the dissolution judgment, the plaintiff, on the granting of certifica-
tion, appealed to our Supreme Court, which reversed this court’s
judgment and remanded the case to this court with direction to consider
the merits of the plaintiff’s claims on appeal. On remand, held:
1. The plaintiff could not prevail on her claim that the trial court erred by
failing to find that the defendant committed fraud when he submitted
inaccurate financial affidavits to the court at the time of the original
dissolution judgment: although parties in a dissolution action have a
fiduciary-like duty to fully and frankly disclose their financial informa-
tion, the plaintiff’s claim that once an underreporting of income and
assets was proven, the burden shifted to the defendant to prove fair
dealing by clear and convincing evidence was unavailing, as the plaintiff
did not ask the court to require the defendant to prove fair dealing by
clear and convincing evidence, nor did she allege or argue that the
defendant was in a fiduciary relationship with her or that he owed her
the duties that are owed to a beneficiary of a fiduciary relationship, she
failed to provide any authority to support her burden shifting analysis,
and our Supreme Court previously has rejected such a burden shifting
argument; moreover, the trial court’s finding that the plaintiff failed to
prove fraud was not clearly erroneous and was supported by sufficient
evidence in the record, including extensive testimony by the defendant
about the information he had provided on his financial affidavits in
which he attempted to demonstrate that his disclosures were made in
good faith, even if some of them were incorrect, which supported a
finding that the underreporting of income and assets that occurred was
not necessarily the result of fraud.
2. The trial court’s alimony award did not reflect an abuse of discretion:
nothing in the record suggested that the court, which had found that
an underreporting of income by the defendant in fact had occurred but
did not find that the defendant’s failure to fully disclose his assets and
income amounted to fraud, acted arbitrarily in rendering its new financial
orders, as the court stated that it considered the evidence and relevant
statutes, including the child support guidelines, it provided a remedy
to the plaintiff by altering the financial orders of the original dissolution
judgment in a variety of ways, including setting a new alimony award that
increased the plaintiff’s award by 11 percent and created a significant
arrearage in her favor, and it endeavored to craft new financial orders
that were consistent with the principles that governed the original
decree; moreover, the trial court, having found no wrongdoing by the
defendant and having expressly found that the plaintiff did not sustain
her burden of proving that the defendant acted fraudulently, was not
obligated to penalize the defendant by awarding the plaintiff greater
alimony or asset awards.
3. The plaintiff’s claim that the trial court erred with respect to its distribution
of five marital assets that came to light after the court opened the
judgment was unavailing; that court’s division of the assets at issue did
not appear to have been arbitrarily made or the product of mistake,
and was expressly based on the parties’ intent to divide martial assets
evenly, as reflected in their original stipulation, and in light of the court’s
finding that the plaintiff did not prove that the defendant acted in a
fraudulent manner, her claim that the court unfairly rewarded the defen-
dant for wrongful conduct with respect to his financial affidavit necessar-
ily failed.
4. The plaintiff failed to demonstrate that the trial court’s award of attorney’s
fees reflected an abuse of discretion; even if that court, in making its
original award of attorney’s fees, overlooked a certain affidavit of the
plaintiff’s attorney, the plaintiff failed to demonstrate that reversible
error existed, as the court never stated that it would not consider the
subject affidavit, nor did it improperly refuse to consider awarding fees
allegedly incurred during a substantial portion of the litigation, the
court’s decision showed that it considered the reasonableness of the
fees generally but focused on the fact that the affidavits submitted by
the plaintiff’s attorneys set forth an amount of fees that was dispropor-
tionately high when compared to the results achieved, and the plaintiff
failed to provide any authority for her claim that, in light of the court’s
finding that the defendant had failed to disclose fully his income and
assets at the time of the original dissolution judgment, it was obligated
to award the plaintiff all of the fees she had incurred.
5. The plaintiff could not prevail on her claim that the trial court abused
its discretion by failing in its financial orders to promote full and frank
disclosure in financial affidavits and by failing to address adequately
the defendant’s omission of substantial income and assets from his
financial affidavits; that court, having found discrepancies in the defen-
dant’s reporting of his income and assets, provided the plaintiff with a
proper remedy for the defendant’s failure to disclose assets and income
fully by altering the financial orders of the original dissolution judgment
in a variety of ways, and given that the court expressly found that the
plaintiff had not proven fraud, it was not obligated to provide the plaintiff
with any more favorable financial orders.
Argued September 11—officially released December 18, 2018
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk and tried to the court, Hon.
Dennis F. Harrigan, judge trial referee; judgment dis-
solving the marriage and granting certain other relief
in accordance with the parties’ stipulation; thereafter,
the court, Shay, J., granted the plaintiff’s motion to
open the judgment and issued certain orders; subse-
quently, the court, Shay, J., issued a corrected memo-
randum of decision, and the plaintiff appealed to this
court; thereafter, the court, Shay, J., issued an articula-
tion of its decision; subsequently, this court reversed
the trial court’s judgment and remanded the case with
direction to deny the plaintiff’s motion to open; there-
after, the plaintiff filed a petition for certification to
appeal with our Supreme Court, which granted the peti-
tion and remanded the matter to this court to consider
the plaintiff’s claims. Affirmed.
Eric M. Higgins, for the appellant (plaintiff).
Reine C. Boyer, for the appellee (defendant).
Opinion
KELLER, J. This appeal returns to the Appellate Court
on remand from our Supreme Court for resolution of
the claims raised by the plaintiff, Gail Reinke. Reinke
v. Sing, 328 Conn. 376, 179 A.3d 769 (2018).1 The plaintiff
appeals from the judgment of the trial court after it
reissued several financial orders that were part of an
original judgment that dissolved her marriage to the
defendant, Walter Sing. The plaintiff claims that the
court erred (1) by failing to find that the defendant
committed fraud when he submitted inaccurate finan-
cial affidavits to the court at the time of the original
dissolution judgment, (2) with respect to its alimony
award, (3) with respect to its distribution of property,
(4) with respect to its award of attorney’s fees, and (5)
by failing in its financial orders to promote full and
frank disclosure in financial affidavits and by failing to
address adequately the defendant’s omission of sub-
stantial income and assets from the financial affidavits
that he filed at the time of the original dissolution judg-
ment. We affirm the judgment of the trial court.
Several facts are not in dispute. The parties were
married in 1989. On October, 2, 2007, their marriage was
dissolved by the trial court, Hon. Dennis F. Harrigan,
judge trial referee. At the time of this original dissolu-
tion judgment in 2007, the plaintiff was forty-seven
years of age and the defendant was fifty-six years of
age. The plaintiff, who holds a bachelor’s degree, was
a homemaker during the marriage, but occasionally
worked in a part-time capacity. The defendant, who
holds a degree in mathematics, worked steadily
throughout the marriage and, at the time of the dissolu-
tion proceedings, was a self-employed information tech-
nology consultant. There were two children of the
marriage. At the time of the original dissolution, the
parties’ son was seventeen years of age and their daugh-
ter was fourteen years of age. At the time of the subse-
quent judgment at issue in the present appeal, both
children had reached the age of majority.
The parties’ written ‘‘Stipulation for Judgment’’ was
incorporated by reference into the original judgment
of dissolution. Among the financial provisions in the
original decree, the defendant was ordered to pay the
plaintiff $3,333.33 in unallocated alimony and child sup-
port each month, beginning on October 1, 2007, subject
to de novo review at the request of either party begin-
ning on October 1, 2016. Generally, the stipulation incor-
porated in the judgment reflected the parties’ intent to
divide their marital assets equally.
On May 4, 2010, the plaintiff filed a motion to open
the judgment of dissolution on the ground that the
defendant engaged in fraud during the original dissolu-
tion proceedings by failing to disclose in his financial
affidavit information concerning the extent of his
assets. According to the plaintiff, this resulted in an
undervaluation of the defendant’s assets by approxi-
mately $160,000. The plaintiff asked for the case to be
opened ‘‘for the purpose of complete discovery and an
equitable distribution of the parties’ entire marital
estate.’’
On September 28, 2010, by agreement of the parties,
the court, Shay, J., opened the original judgment of
dissolution for purposes of reassessing the financial
orders. In opening the judgment, the court did not make
any finding with respect to fraud, nor did the parties
stipulate that fraud had occurred. Thereafter, the par-
ties engaged in extensive discovery for over two and
one half years.
On August 23, 2013, following a six day trial, the
court found that, at the time of the original dissolution
judgment in 2007, the defendant had underreported his
assets. In light of the underreporting that had occurred,
the court entered numerous financial orders that, in
several material ways, differed from those in the origi-
nal judgment. In its memorandum of decision, the court
stated in relevant part: ‘‘[T]he evidence supports a find-
ing that there are substantial discrepancies between
the [defendant’s] income as first reported at the time
of the original hearing and what actually should have
been reported. In fact, the stipulation of the parties was
based upon the assumption that the [defendant] had
gross income of $100,000, when, in fact, he was earning
twice that. . . . The [defendant] has filed multiple
financial affidavits over the course of the case, thus
presenting the court with the proverbial ‘moving target.’
In calculating the [defendant’s] net income, the court
has not factored in business expenses, since the [defen-
dant] offered no credible evidence as to the amount of
[the] same. The court has, however, taken into consider-
ation state and federal taxes, and his health insurance
premiums. Accordingly, the court calculates his net
weekly income as $2061. . . .
‘‘As to the marital estate, while the differences are
not as dramatic, nevertheless, they exist. A comparison
to investment accounts shows an underreporting of
$16,574 . . . or an 8.5 percent difference. The same
comparison with regard to retirement accounts yields
a more dramatic difference of $63,655 . . . or 62 per-
cent. In addition, no life insurance was shown on the
corrected financial affidavit, where $250,000 term insur-
ance insuring the [defendant’s] life was disclosed on
the original financial affidavit, and less debt is reported
on the corrected affidavit than on the original. Finally,
the [defendant] failed to disclose to the [plaintiff] that
he anticipated approximately $100,000 in income tax
refunds, which he ultimately did receive and put to his
own use.
‘‘The [plaintiff] testified at length about abusive
behavior by the [defendant], physical and mental,
throughout the course of the marriage. There is some
evidence to support her claims, however, much of it is
anecdotal. The family was further stressed by problems
concerning their son . . . .
‘‘A substantial number of the terms of the stipulation
for judgment have already been satisfied in part or in
full, including investment accounts, retirement
accounts, automobiles, and other personal property. On
the other hand, in addition to the omission of certain
assets, the evidence supports a finding that the [plain-
tiff’s] one-third interest in the condominium in Jersey
City, New Jersey, that is shared with the [defendant’s]
brother, and which was to be transferred to the [defen-
dant] in the settlement in return for a $22,000 payment
to the [plaintiff], was undervalued. The evidence sup-
ports a valuation of her interest as $58,833. The [defen-
dant] gave the [plaintiff] a check for $22,000, but, to
date, she has failed to deliver a deed of her interest
to him.
‘‘The principal remaining undivided marital asset is
the family home . . . currently occupied by the [defen-
dant], which the parties have stipulated [has] a fair
market value of $1,565,000, against which there is com-
bined mortgage debt of approximately $650,000. The
house is currently listed for sale.’’
In light of all of the circumstances, the court found
that the parties’ 2007 stipulation, which had been incor-
porated by reference in the original decree, was fair
and equitable and that, apart from the areas in which
it would be modified by the court, it was incorporated
into the new decree. The court stated that, in crafting
the final decree, it would take into account the partial
division of the marital estate that already had occurred
pursuant to the parties’ stipulation. The court found
that there were no exceptional intervening circum-
stances and, thus, it was appropriate to base its division
of the estate on its value as of the date of the original
judgment of dissolution.
Among the most significant ways in which the court
modified the original decree,2 it altered the defendant’s
alimony obligation by ordering him to pay the plaintiff
$4425 in alimony monthly beginning on October 1, 2007,
until May 31, 2010; $4000 in alimony monthly beginning
on June 1, 2010, until May 31, 2011; and $3500 in alimony
monthly beginning on June 1, 2011, until May 31, 2016.
The court specified that its award was nonmodifiable
with respect to its term and that the arrearage created
by its new order was to be paid to the plaintiff at the
rate of $500 per month until paid in full. The court did
not modify the defendant’s child support obligation. As
the parties agree, the court equally divided between
them those assets that it found had been undervalued
or not disclosed previously by the defendant. As an
award of attorney’s fees in connection with this case,
the court ordered the defendant to pay the plaintiff
herself $20,000, her current counsel $10,000, and her
former counsel $10,000. This resulted in an award of
attorney’s fees totaling $40,000.
Thereafter, the plaintiff appealed. In 2015, when this
appeal was previously before this court, the trial court
was ordered, in relevant part, to articulate ‘‘whether it
found that there was no fraud or whether it simply was
not making an express finding regarding fraud. If the
latter, the court is ordered further to articulate whether
it found that there had been fraud as to the first judg-
ment of dissolution.’’3 In its articulation of July 29, 2015,
the trial court stated in relevant part that it had granted
the plaintiff’s motion to open the judgment of dissolu-
tion ‘‘by agreement of the parties’’ and ‘‘[a]t that time,
[it] made no express finding of fraud. Although the
[defendant] did not voluntarily concede any fraudulent
dealings on his part, by agreeing to open the judgment,
he impliedly conceded the fact that the [plaintiff’s] alle-
gations would, if proven, be a sufficient basis for open-
ing the judgment of dissolution. . . . Moreover, the
[plaintiff] was never precluded from raising the issue
of fault at the time of the new hearing, which is, in fact,
just what she did. . . .
‘‘While the court found that the [defendant] had origi-
nally failed to fully disclose some of his assets and
understated his income, it made neither an express
finding that his failure to do so amounted to fraud, nor,
for that matter, that his behavior did not amount to
fraud. In short, under all the circumstances, the [plain-
tiff] failed to meet her burden to establish fraud to
the satisfaction of the court by clear and convincing
evidence. . . . Moreover, the court believes that a find-
ing that fraud was not proven could be fairly implied
from a reading of the decision as a whole, in particular,
relative to its other specific findings and as to the relief
granted.’’ (Citations omitted; emphasis in original; inter-
nal quotation marks omitted.)4
This appeal followed. Additional facts will be set forth
as necessary in our analysis of the plaintiff’s claims.
I
First, we address the plaintiff’s claim that the court
erroneously failed to find that the defendant committed
fraud when he submitted inaccurate financial affidavits
to the court at the time of the original dissolution judg-
ment.5 We disagree.
A
In the first subpart of the present claim, the plaintiff
asserts that the court improperly required her to bear
the burden of proving that the defendant had engaged
in fraud. She argues that, in light of the defendant’s
fiduciary-like obligation to make full and frank disclo-
sures on his financial affidavits, the court should have
required the defendant to prove fair dealing by clear
and convincing evidence.
‘‘When a party contests the burden of proof applied
by the court, the standard of review is de novo because
the matter is a question of law.’’ (Internal quotation
marks omitted.) Rollar Construction & Demolition,
Inc. v. Granite Rock Associates, LLC, 94 Conn. App.
125, 133, 891 A.2d 133 (2006).
To provide necessary context for the plaintiff’s argu-
ment, we set forth some basic legal principles concern-
ing breach of fiduciary duty actions. ‘‘Once a [fiduciary]
relationship is found to exist, the burden of proving
fair dealing properly shifts to the fiduciary. . . . Fur-
thermore, the standard of proof for establishing fair
dealing is not the ordinary standard of fair preponder-
ance of the evidence, but requires proof either by clear
and convincing evidence, clear and satisfactory evi-
dence or clear, convincing and unequivocal evidence.
. . . Proof of a fiduciary relationship, therefore, gener-
ally imposes a twofold burden on the fiduciary. First,
the burden of proof shifts to the fiduciary; and second,
the standard of proof is clear and convincing evidence.’’
(Internal quotation marks omitted.) Papallo v. Lefebvre,
172 Conn. App. 746, 754, 161 A.3d 603 (2017); see also
Chioffi v. Martin, 181 Conn. App. 111, 137, 186 A.3d
15 (2018); Iacurci v. Sax, 139 Conn. App. 386, 394 n.2,
57 A.3d 736 (2012) (‘‘in cases involving claims of fraud,
self-dealing or conflict of interest, a fiduciary bears the
burden of proving fair dealing by clear and convincing
evidence’’), aff’d, 313 Conn. 786, 99 A.3d 1145 (2014).
The plaintiff does not direct our attention to any
portion of the record in which she explicitly asked the
court to require the defendant to prove fair dealing by
clear and convincing evidence or objected on the
ground that the court incorrectly had allocated the bur-
den of proof to her. Nor does the plaintiff draw our
attention to any portion of the record in which she
explicitly argued before the court that the defendant,
consistently identified throughout the proceedings as
her spouse, was in a fiduciary relationship with her.
Our careful review of the relevant pleadings reflects
that the plaintiff did not plead that the defendant was
a fiduciary or that he owed her the duties that are owed
to a beneficiary of a fiduciary relationship.
At trial, the plaintiff, relying on Billington v. Bill-
ington, 220 Conn. 212, 595 A.2d 1377 (1991), stressed
that the defendant had an obligation to disclose fully
his income and assets in the financial affidavits that
he submitted to the court at the time of the original
dissolution judgment in 2007, that he failed to do so,
and that the plaintiff was entitled to recourse for his
failure in this regard. At the conclusion of the trial, the
plaintiff’s counsel argued that the marital relationship
was ‘‘quasi fiduciary in nature.’’
In parts II, III, IV, and V of this opinion, we address
the plaintiff’s claims that some of the court’s financial
orders reflected an abuse of discretion. Consistent with
the arguments advanced at trial, in those claims, the
plaintiff relies on Billington, in which our Supreme
Court abandoned the requirement that a party seeking
to open a dissolution judgment on the basis of fraud
must demonstrate that it exercised diligence in the origi-
nal dissolution action in order to discover and expose
the fraud. Billington v. Billington, supra, 220 Conn.
218. The court’s discussion in Billington illuminates
the obligation borne by both parties in dissolution
actions to provide the court with an accurate financial
affidavit as required by Practice Book § 25-30. The court
explained in relevant part: ‘‘Our cases have uniformly
emphasized the need for full and frank disclosure in
that affidavit. A court is entitled to rely upon the truth
and accuracy of sworn statements required by [Practice
Book § 25-30 (formerly Practice Book § 463)], and a
misrepresentation of assets and income is a serious and
intolerable dereliction on the part of the affiant which
goes to the very heart of the judicial proceeding. . . .
These sworn statements have great significance in
domestic disputes in that they serve to facilitate the
process and avoid the necessity of testimony in public
by persons still married to each other regarding the
circumstances of their formerly private existence. . . .
Thus, the requirement of diligence in discovering fraud
is inconsistent with the requirement of full disclosure
because it imposes on the innocent injured party the
duty to discover that which the wrongdoer already is
legally obligated to disclose. . . .
‘‘This principle of complete disclosure is consistent
with the notion that the settlement of a marital dissolu-
tion case is not like the settlement of an accident case.
It stamps with finality the end of a marriage. . . .
Courts simply should not countenance either party to
such a unique human relationship dealing with each
other at arms’ length. Whatever honesty there may, or
should, have been during the marriage should at least
be required by the court at its end. . . .
‘‘We have recognized, furthermore, in the context of
an action based upon fraud, that the special relationship
between fiduciary and beneficiary compels full disclo-
sure by the fiduciary. . . . Although marital parties are
not necessarily in the relationship of fiduciary to benefi-
ciary, we believe that no less disclosure is required
of such parties when they come to court seeking to
terminate their marriage.
‘‘Finally, the principle of full and frank disclosure,
with which the diligence limitation is inconsistent, is
essential to our strong policy that the private settlement
of the financial affairs of estranged marital partners is
a goal that courts should support rather than under-
mine. . . . That goal requires, in turn, that reasonable
settlements have been knowingly agreed upon. . . .
Our support of that goal will be effective only if we
instill confidence in marital litigants that we require,
as a concomitant of the settlement process, such full
and frank disclosure from both sides, for then they will
be more willing to forego their combat and to settle
their dispute privately, secure in the knowledge that
they have all the essential information. . . . This prin-
ciple will, in turn, decrease the need for extensive dis-
covery, and will thereby help to preserve a greater
measure of the often sorely tried marital assets for
the support of all of the family members.’’ (Citations
omitted; internal quotation marks omitted.) Id., 219–22.
In arguing before this court that the trial court’s finan-
cial orders reflected an abuse of discretion, the plaintiff
does not rely solely on the foregoing rationale from
Billington, but she relies on other appellate decisions
that have followed Billington and, as the plaintiff cor-
rectly observes, unambiguously reaffirm our Supreme
Court’s ‘‘insistence on full and complete disclosure in
financial affidavits.’’ Specifically, as it relates to our
Supreme Court’s broad pronouncement that parties
have a duty to fully and completely disclose financial
information, the plaintiff refers to Reville v. Reville,
312 Conn. 428, 451–52, 93 A.3d 1076 (2014) (parties in
dissolution cases have duty to disclose assets even if
it is unclear whether such assets are subject to distribu-
tion), Ramin v. Ramin, 281 Conn. 324, 915 A.2d 790(2007) (reversible error for trial court not to consider
motion for contempt brought against consistently non-
compliant party in dissolution action), and Weinstein
v. Weinstein, 275 Conn. 671, 882 A.2d 53 (2005) (clearly
erroneous for trial court to have found that defendant
in dissolution action had not committed fraud by under-
valuing business asset on financial affidavit).
The plaintiff relies on Billington for the proposition
that, once an underreporting of income and assets was
proven, the defendant bore the burden of proving fair
dealing by clear and convincing evidence. In Billington,
however, our Supreme Court did not state that parties
in a marital relationship are in a fiduciary relationship
or that a party in a marital dissolution proceeding bore
the burden of proving fair dealing by clear and convinc-
ing evidence. As set forth previously, the court in Bill-
ington, referring to the duty to disclose and not the
duty of proving fair dealing, stated that although parties
in a dissolution action are ‘‘not necessarily in the rela-
tionship of fiduciary to beneficiary . . . no less disclo-
sure is required of such parties when they come to
court seeking to terminate their marriage.’’ Billington
v. Billington, supra, 220 Conn. 221.6
In arguing that a fiduciary relationship existed, the
plaintiff also relies on Ramin v. Ramin, supra, 281
Conn. 324, in which our Supreme Court once again
addressed the duty of disclosure between parties in
dissolution actions. In Ramin, our Supreme Court
addressed a claim that is distinguishable from the claim
presently before us. Specifically, the plaintiff in Ramin
claimed that the trial court had abused its discretion
by declining to rule on her motions for contempt and
for sanctions, which were based on the defendant’s
repeated failure to comply with the court’s discovery
orders. Id., 330. Thus, our Supreme Court in Ramin
did not have occasion to address the burden shifting
argument at issue here. Although, in the context of its
analysis, our Supreme Court reiterated that parties in
a dissolution action have a fiduciary-like obligation to
fully disclose financial information, it did not state
that such parties were in a fiduciary relationship or that
a party in a dissolution proceeding had a burden of
proving fair dealing by clear and convincing evidence.
Instead, as relevant, the court in Ramin stated that a
defendant who had ‘‘breached his fiduciary-like obliga-
tions of discovery to the plaintiff as ordered by the
court . . . should bear the burden of establishing that
his breach of that obligation did not harm the benefi-
ciary of that obligation.’’ Id., 349–50.
The plaintiff also draws our attention to Dietter v.
Dietter, 54 Conn. App. 481, 737 A.2d 926, cert. denied,
252 Conn. 906, 743 A.2d 617 (1999), for the broad propo-
sition that courts have shifted the burden of proving
fair dealing in ‘‘dissolution of marriage cases.’’ The
plaintiff’s reliance on Dietter is undermined by the fact
that it was not merely an appeal from a judgment in
a dissolution action. In Dietter, the plaintiff husband
brought a dissolution action against the defendant wife.
Id., 482. The defendant wife, however, brought a cross
complaint against the plaintiff, the plaintiff’s mother,
and the plaintiff’s brothers, wherein she alleged that
they fraudulently had transferred assets from a corpora-
tion in which she was a shareholder, thereby dissipating
the marital estate. Id., 482–83. On appeal, despite
obtaining a favorable judgment with respect to part of
her cross complaint, the defendant argued with respect
to the other part of her cross complaint that the trial
court improperly had allocated to her the burden of
proving that the transactions on which she relied
amounted to fraudulent transfers from the marital
estate. Id., 488.
It is important that the defendant in Dietter did not
claim that the plaintiff, in his capacity as her spouse,
owed her a fiduciary duty. Instead, she claimed that
the plaintiff, as an officer of a corporation of which
she was a shareholder, ‘‘owed her a fiduciary duty as
a shareholder’’ and that the court ‘‘should have allocated
the burden of proof to the plaintiff to establish fair and
equitable dealing by clear and convincing evidence.’’ Id.In rejecting the defendant’s burden shifting claim,
this court in Dietter reasoned in relevant part: ‘‘The
second count of the defendant’s amended cross com-
plaint alleged neither that the plaintiff owed her a fidu-
ciary duty nor that the plaintiff breached a fiduciary
duty. Practice Book § 10-4 provides, however, that ‘[i]t
is unnecessary to allege any promise or duty which the
law implies from the facts pleaded.’ In the present case,
a fiduciary duty cannot be implied from the facts
pleaded because the second count of the amended cross
complaint identified the plaintiff neither as a fiduciary
nor as an officer or director of [the corporation at issue],
and did not set forth any facts from which a fiduciary
duty might be implied. . . . Because the second count
of the amended cross complaint is most accurately
described as claiming that the plaintiff, acting in his
capacity as a spouse and not as a fiduciary, fraudu-
lently transferred assets from the marital estate, we
conclude that the trial court properly allocated the bur-
den of proof on the second count of the amended cross
complaint to the defendant.’’ (Citation omitted; empha-
sis added.) Id., 489–90.
In light of the foregoing analysis, Dietter cannot rea-
sonably be interpreted to support the proposition that
a party in a marital dissolution action who has been
found to have underreported income or assets is a fidu-
ciary or that such party, by virtue of their party status
in a dissolution action, bears the burden of proving
fair dealing by clear and convincing evidence. To the
contrary, this court in Dietter reasoned that, in the
absence of additional facts from which a fiduciary rela-
tionship reasonably may be inferred, an action brought
against a spouse is not the legal equivalent of an action
brought against a fiduciary.
The plaintiff does not draw our attention to any
authority that directly supports her burden shifting
argument, and we are not aware of any. To the contrary,
our Supreme Court, in Reville v. Reville, supra, 312
Conn. 467–71, rejected such a burden shifting argument.
In Reville, a plaintiff in a dissolution action claimed
under the plain error doctrine that ‘‘once it is estab-
lished that a party to a dissolution action has failed to
list a substantial asset either on his or her financial
affidavit or in open court, the burden should shift to
that party to prove, by clear and convincing evidence,
either the absence of fraud or that the nondisclosure
was harmless.’’ Id., 467. Our Supreme Court rejected
this argument, noting that, under well settled appellate
precedent, the party asserting fraud as a basis of setting
aside financial orders in a dissolution judgment bears
the burden of proving fraud by clear and convincing
evidence. Id., 469.
As we have observed, our case law reflects that par-
ties in a dissolution action are ‘‘[u]nlike civil litigants
who stand at arm’s length from one another . . . .’’
Duart v. Dept. of Correction, 303 Conn. 479, 501, 34
A.3d 343 (2012). For this reason, and because parties
in a dissolution action need information about each
other’s income and assets to pursue their cause of
action, our case law imposes a duty on parties in a
dissolution action to fully and frankly disclose their
financial information. Our decisional law, however, has
limited this fiduciary-like duty to disclosure and, in light
of that disclosure obligation, to proving the absence
of harm once proper disclosure has not occurred; our
courts have not expressly extended such an obligation
to prove with clear and convincing evidence that fair
dealing has occurred. Moreover, we are not persuaded
that Billington and its progeny should be interpreted
to suggest that it is necessary or appropriate to extend
this rationale so as to require a party in a dissolution
action who has been found to have underreported
income or assets to prove fair dealing with clear and
convincing evidence. In light of the foregoing, we reject
the plaintiff’s burden shifting argument.
B
In the second subpart of this claim, the plaintiff claims
that the court’s finding that she failed to prove fraud
was clearly erroneous. We disagree.
In support of this claim, the plaintiff argues in rele-
vant part: ‘‘There was no evidence whatsoever that the
defendant’s numerous omissions of substantial income
and assets on his financial affidavit were the product
of fair dealing, and any conclusion that the defendant
engaged in fair dealing would be clearly erroneous in
light of the evidence at trial.’’ The plaintiff describes
the evidence of fraud to be ‘‘overwhelming’’ and relies
on the fact that the court’s findings reflect that it found
‘‘a clear pattern of nondisclosure of substantial income
and numerous valuable assets on three financial affida-
vits.’’ Moreover, the plaintiff argues, ‘‘[t]his pattern of
nondisclosure was accompanied by a sustained pattern
of affirmative efforts by the defendant to prevent the
plaintiff from discovering the true extent of the defen-
dant’s income and his assets through discovery.’’ The
plaintiff analogizes the facts of the present case with
those in Weinstein v. Weinstein, supra, 275 Conn. 688–
95, in which our Supreme Court found error in a trial
court’s finding that fraud in a dissolution action had
not been proven.
As our Supreme Court in Billington observed, ‘‘[t]he
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.’’ Billington v. Billington, supra, 220
Conn. 217. As the plaintiff correctly acknowledges,
‘‘[t]he determination of the question of fraudulent intent
is clearly an issue of fact which must often be inferred
from surrounding circumstances. . . . Such a fact is,
then, not ordinarily proven by direct evidence, but
rather, by inference from other facts proven—the indi-
cia or badges of fraud.’’ (Internal quotation marks omit-
ted.) Dietter v. Dietter, supra, 54 Conn. App. 487. Issues
of mental state generally, and issues of intent in particu-
lar, are inherently fact bound. Resolution of such issues
depends on the trier of fact’s assessment of relevant
facts, as well as any relevant testimony concerning the
events at issue. In a case such as the present case, in
which the party alleged to have acted fraudulently has
testified at length about his conduct, we would expect
the trier of fact’s firsthand observations of his testimony
to shed additional light on an assessment of his intent.
‘‘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 conviction that a mistake has been committed.’’
(Internal quotation marks omitted.) Milazzo-Panico v.
Panico, 103 Conn. App. 464, 467–68, 929 A.2d 351 (2007).
The plaintiff seemingly argues that, in light of the
court’s finding that an underreporting of income and
assets occurred to the extent that it did, as well as
the fact that the parties engaged in discovery disputes
concerning the defendant’s finances, the court was obli-
gated as a matter of law to find that fraud had occurred.
The plaintiff relies on Weinstein, yet does not draw our
attention to unmistakable evidence that suggests that
the defendant acted with a fraudulent intent, let alone
the type of ‘‘clear and convincing evidence’’ that com-
pelled our Supreme Court to find that fraud had
occurred in that case. Weinstein v. Weinstein, supra,
275 Conn. 692–93 (determining that defendant’s own
testimony concerning valuation of asset at issue was
clear and convincing evidence that he knowingly mis-
represented his worth in his financial affidavit).
At trial, following the granting of the motion to open
the judgment, the defendant testified extensively in an
attempt to refute the plaintiff’s argument that the evi-
dence reflected wrongdoing on his part with respect to
the disclosure of financial information. The defendant
testified that he was self-represented at the time of the
original dissolution trial and, in great detail, testified
about the information that he provided on his financial
affidavits in 2007 and why he set forth some of the
inaccurate information about his income and assets. It
suffices to observe that, with respect to the contested
issue of fraud,7 the defendant attempted to demonstrate
that his disclosures were made in good faith, even if
some of them were incorrect because, for example, they
were made in haste or upon incomplete information.
Thereafter, at the conclusion of the trial, defense coun-
sel argued that, contrary to the plaintiff’s arguments,
the defendant had not attempted ‘‘to hide, mislead, or
provide false information to the plaintiff with respect
to his financial situation in order to avoid financial
liability in the dissolution proceedings [in] 2007.’’ The
plaintiff makes no effort to refute the defendant’s highly
relevant testimony. Instead, she broadly relies on the
court’s finding that a significant underreporting of
assets and income had occurred and that the parties’
litigation was marked by discovery disputes concerning
the defendant’s finances.
The court, having had a firsthand opportunity to
observe the defendant and to evaluate his testimony,
found that an underreporting of income and assets had
occurred, but did not make findings that were consis-
tent with the plaintiff’s argument that underreporting
was accompanied by a fraudulent intent. Far from there
being ‘‘no evidence whatsoever’’ that the defendant did
not intend to defraud, as the plaintiff argues, the record
contains evidence to support a finding that the underre-
porting of income and assets that occurred was not
necessarily the result of fraud. The defendant’s testi-
mony, and the inferences that the court reasonably
could have drawn therefrom, support the court’s finding
and, absent the type of compelling evidence of fraud
that was presented in Weinstein, we are not persuaded
that a factual mistake was made by the trial court.
II
Second, the plaintiff claims that the court erred with
respect to its alimony award. The plaintiff argues that
the court’s award was improper because, in comparison
with the original award, it decreased the alimony term
and eliminated her right to seek an extension of the
alimony term. Also, the plaintiff argues that the amount
of the court’s alimony award undermined the require-
ment that parties in dissolution actions fully and frankly
disclose their income by way of financial affidavits.
We disagree.
The plaintiff argues that, although the court correctly
determined that there were substantial discrepancies
between what the defendant reported to be his self-
employment income at the time of the original dissolu-
tion judgment in 2007 and what his actual self-employ-
ment income was proven to be, the court failed to assess
accurately the extent of these discrepancies. As we
stated previously in this opinion, the court found that,
at the time of the original decree, the defendant failed
to disclose accurately his self-employment income on
his financial affidavit. The court observed that, in a
financial affidavit dated September 12, 2007, the defen-
dant disclosed his weekly gross self-employment
income to be $2319. In a financial affidavit dated April
26, 2013, however, he disclosed his gross self-employ-
ment income (as of the time of the original dissolution
in 2007) to have been $3506. The court calculated the
defendant’s weekly gross income to have been $3506
and his weekly net income to have been $2061.8 The
court stated that the difference between what the defen-
dant had reported in the September 12, 2007 affidavit
and what he reported in the April 26, 2013 affidavit was
$1187 ‘‘or 51 percent.’’
In discussing the extent to which the defendant
underreported his weekly gross self-employment
income at the time of the original decree, the plaintiff
argues that the court should have relied not on the
September 12, 2007 affidavit, but on the undisputed
evidence that, in his October 2, 2007 financial affidavit,
the defendant represented that such income was $1958,
and that he had led the court to believe that his income
from all sources was only $100,000 per year. The plain-
tiff argues that when the defendant’s actual self-employ-
ment gross income is compared with the self-
employment gross income that the defendant reported
on October 2, 2007, the date on which the court ren-
dered its original judgment of dissolution, ‘‘the differen-
tial is 79 percent, not 51 percent.’’9
The plaintiff also draws our attention to evidence
that, even during the proceedings after the court
granted the plaintiff’s motion to open the judgment
which had been brought on the basis of fraud but was
granted in accordance with the parties’ stipulation, the
defendant continued to fail to disclose the extent of his
income in the years leading up to the dissolution in
2007. The plaintiff, referring to evidence presented to
the court as well as the defendant’s replies to interroga-
tories, argues that the defendant exhibited ‘‘a pervasive
pattern of misrepresenting his income on his financial
affidavits and sworn interrogatory responses, which
came to light only after the plaintiff obtained a commis-
sion to subpoena [an out-of-state employer of the defen-
dant] over the defendant’s objection that [such
discovery] was a fishing expedition . . . .’’
The plaintiff argues that, in light of this factual back-
ground which, she asserts, reflected the defendant’s
malfeasance, the court’s orders concerning alimony
reflected an abuse of discretion. In relevant part, the
plaintiff argues: ‘‘Rather than promote and enforce the
obligation of full and frank disclosure in financial affida-
vits . . . [the] trial court’s judgment had the opposite
effect. . . . It rewarded, rather than redressed, the
defendant’s repeated and serious omissions of income
on his financial affidavit and his subsequent affirmative
attempts to prevent the plaintiff from discovering his
real income by obtaining the information directly from
[the defendant’s out-of-state employer].’’ The plaintiff,
relies heavily on Billington v. Billington, supra, 220
Conn. 212, and argues that the court’s ‘‘reduction of the
alimony term and elimination of the plaintiff’s right
to seek an extension of the alimony term cannot be
reconciled with [our] Supreme Court’s jurisprudence
concerning the misrepresentation of substantial assets
and income in a financial affidavit.’’ Furthermore, the
plaintiff argues that, in light of the evidence concerning
the defendant’s pattern of concealing his income, the
court abused its discretion in the amount of alimony
that it awarded her.10 The plaintiff argues: ‘‘Here, an 11
percent increase in alimony in the face of an approxi-
mately 80 percent underreporting of income simply can-
not withstand scrutiny under [Billington v. Billington,
supra, 212,] and its progeny.’’ The plaintiff urges us to
conclude that the amount of the alimony award failed
‘‘adequately to redress the defendant’s fraudulent and
material misrepresentations on his financial affidavit,
which resulted in a substantial injustice to the plaintiff.’’
The plaintiff, challenging the propriety of the court’s
new alimony orders, expressly invokes our abuse of
discretion standard of review. ‘‘We review financial
awards in dissolution actions under an abuse of discre-
tion standard. . . . In order to conclude that the trial
court abused its discretion, we must find that the court
either incorrectly applied the law or could not reason-
ably conclude as it did. . . . In determining whether a
trial court has abused its broad discretion in domestic
relations matters, we allow every reasonable presump-
tion in favor of the correctness of its action. . . .
‘‘The generally accepted purpose of . . . alimony is
to enable a spouse who is disadvantaged through
divorce to enjoy a standard of living commensurate
with the standard of living during marriage. . . . In
addition to the marital standard of living, the trial court
must also consider the factors in [General Statutes]
§ 46b-82 when awarding alimony. . . .
‘‘General Statutes § 46b-82 (a) provides in relevant
part that [i]n determining whether alimony shall be
awarded, and the duration and amount of the award,
the court shall consider the evidence presented by each
party and shall consider the length of the marriage, the
causes for the . . . dissolution of the marriage . . .
the age, health, station, occupation, amount and sources
of income, earning capacity, vocational skills, educa-
tion, employability, estate and needs of each of the
parties and the [division of property made] pursuant to
[General Statutes §] 46b-81 . . . . The court is to con-
sider these factors in making an award of alimony, but
it need not give each factor equal weight. . . . We note
also that [t]he trial court may place varying degrees of
importance on each criterion according to the factual
circumstances of each case. . . . There is no additional
requirement that the court specifically state how it
weighed the statutory criteria or explain in detail the
importance assigned to each statutory factor. . . .
[T]he record must indicate the basis for the trial court’s
award. . . . There must be sufficient evidence to sup-
port the trial court’s finding that the spouse should
receive time limited alimony for the particular duration
established. If the time period for the periodic alimony
is logically inconsistent with the facts found or the
evidence, it cannot stand.’’ (Citations omitted; internal
quotation marks omitted.) Horey v. Horey, 172 Conn.
App. 735, 740–41, 161 A.3d 579 (2017); see also Hammel
v. Hammel, 158 Conn. App. 827, 835–36, 120 A.3d 1259(2015) (financial orders in dissolution cases are entitled
to presumption of correctness when based on facts
and relevant statutory criteria but nonetheless warrant
reversal if they are shown to be logically inconsistent
or product of mistake).
In part I, we discussed the rationale set forth by our
Supreme Court in Billington. As discussed previously,
Billington highlights the obligation of dissolution liti-
gants to fully and frankly disclose their assets in finan-
cial affidavits. Billington and its progeny make clear
that courts must insist on full and complete disclosure
and must not hesitate to take appropriate action in
the face of material misrepresentations on a party’s
financial affidavit.
In the present case, the court did not hesitate to act.
Acting on the agreement of the parties, the court opened
the original dissolution judgment. On the basis of the
new financial information brought before it, the court
entered new financial orders concerning, among other
things, alimony, property, and attorney’s fees. Although
the plaintiff introduced evidence that, in her view,
reflected that any underreporting of income or assets
by the defendant was the product of an attempt to
defraud her, the court did not make such a finding.
During the trial, the court made clear that it was not
ruling on a motion for contempt, but was evaluating
the defendant’s income and the marital estate after the
parties had agreed to open the judgment of dissolution
to permit the court to reconsider the financial orders
that were entered at the time of the original judgment
of dissolution. Nevertheless, the plaintiff submitted evi-
dence and argued her claim that the defendant had
acted in a fraudulent manner at the time of the original
dissolution by submitting inaccurate financial affida-
vits, which the defendant contested.
After affording the parties an ample opportunity to
present relevant evidence, the court found that an
underreporting of income by the defendant, in fact, had
occurred. In an articulation of its decision, the court
stated ‘‘that the [defendant] had originally failed to fully
disclose some of his assets and [had] understated his
income, [but] it made neither an express finding that
his failure to do so amounted to fraud, nor, for that
matter, that his behavior did not amount to fraud.’’ The
court stated: ‘‘In short, under all the circumstances, the
[plaintiff] failed to meet her burden to establish fraud
to the satisfaction of the court by clear and convincing
evidence.’’ (Internal quotation marks omitted.)
Nothing in the record suggests that the court acted
arbitrarily in rendering its new financial orders. To the
contrary, the court stated that it considered the evi-
dence and ‘‘General Statutes §§ 46b-56, 46b-56a, 46b-
56c, 46b-81, 46b-82, 46b-84, and 46b-215a, including the
Child Support and Arrearage Guidelines Regulations
. . . .’’ As we discussed previously in this opinion, the
court provided a remedy to the plaintiff for the defen-
dant’s failure to disclose assets and income fully. It
altered the financial orders of the original dissolution
judgment in a variety of ways. It is undisputed that the
court set a new alimony award as of the date of the
original dissolution judgment in 2013, thereby increas-
ing her award by 11 percent and creating a significant
arrearage in her favor. The court explained the manner
in which it calculated its new alimony award, and the
plaintiff does not claim error in the court’s meth-
odology.
The plaintiff argues that the court was obligated to
increase the amount of alimony to a greater extent, and
she focuses on the fact that the court shortened the
alimony term by several months and made the award’s
term nonmodifiable. The plaintiff inherently suggests
in her arguments that the court was obligated to penal-
ize the defendant for wrongdoing in his disclosure of
income and assets. Contrary to her characterization of
the defendant’s conduct as being part of a ‘‘pervasive
pattern of misrepresenting income,’’ the court did not
find any wrongdoing on the defendant’s part, and
expressly found that the plaintiff had failed to prove
fraud. The court did not couch its decision in terms of
wrongdoing by the defendant, but merely stated that
the defendant had not disclosed accurately his income
and assets at the time of the original judgment of disso-
lution. Although the plaintiff claims that the court
should have found that the defendant acted fraudu-
lently, we rejected that claim in part I of this opinion.
The court unmistakably endeavored to craft new finan-
cial orders that were consistent with the principles that
governed the original decree, not to penalize the
defendant.
The case law on which the plaintiff relies requires the
court to take action when presented with an inaccurate
disclosure by a party in a dissolution action, yet the
plaintiff does not present this court with any authority
in support of her argument that in circumstances such
as those before us, in which fraud has not been proven,
the court is obligated to act in a punitive manner against
a party who has not accurately disclosed income or
assets. Stated otherwise, there is no precise mathemati-
cal formula that the court must follow in setting new
financial orders in such circumstances. Rather, its
award is subject to review for an abuse of discretion.
In the present case, in which the plaintiff argues that the
defendant should be penalized but has not succeeded
in demonstrating that fraud occurred, the plaintiff has
failed to demonstrate that the court’s alimony award
reflected an abuse of discretion.
III
Third, the plaintiff claims that the court erred with
respect to its distribution of five marital assets that
came to light after the court opened the judgment.
We disagree.
Among its many financial orders, the court ordered
the defendant to pay the plaintiff $106,042 within sixty
days. This amount included, among other things, the
plaintiff’s share of some of the marital assets that the
defendant either failed to disclose or undervalued at
the time of the original dissolution judgment. Addition-
ally, the court ordered that qualified domestic relations
orders be prepared to equally distribute two retirement
accounts held by the defendant through his employer
or former employer. The court found that at the time
of the original dissolution judgment, the defendant had
not reported these accounts on his financial affidavit.
In the present claim, the plaintiff does not challenge
the court’s factual findings with respect to the parties’
marital assets, but claims that the court abused its dis-
cretion in its distribution of five specific marital assets.
Specifically, the plaintiff draws our attention to the
court’s orders concerning an ‘‘E-Trade account,’’ tax
refunds, a ‘‘UBM 401k’’ account, a ‘‘Fidelity 401k’’
account, and a ‘‘Morgan Stanley’’ account.
With respect to these five specific assets, the court
found in relevant part, as follows: ‘‘That the original
financial affidavit of the [defendant] as filed with the
court omitted two retirement accounts, to wit: a UBM
[401k] plan having a value of approximately $49,000 and
a Fidelity [401k] plan having a value of approximately
$16,000; that it is equitable and appropriate that the
[plaintiff] receive one half thereof, together with all
interest and gains accrued to the date of actual distribu-
tion by means of a Qualified Domestic Relations Order
. . . consistent with the intent of the parties to divide
the marital assets equally.’’ Additionally, the court
found: ‘‘That the evidence supports a finding that the
[defendant] has received state and federal income tax
refunds for the years 2004 through 2007 in the amount
of $104,163; that he failed to disclose this fact at the
time of the entry of the dissolution and the execution
of the stipulation for judgment; that he has applied said
sum to his own use; that there is no credible evidence
that he has filed amended returns for said years; and
that it is equitable and appropriate that the [plaintiff]
share equally in said sum.’’ In a written correction to
its memorandum of decision, the court awarded the
plaintiff $34,877, which it found was half of the value
of an E-Trade account held by the defendant that, the
plaintiff argued, had not been disclosed at the time of
the original dissolution judgment. The court expressly
declined to enter any orders distributing a Morgan Stan-
ley account that the defendant did not disclose at the
time of the original dissolution judgment because, in
the court’s view, it was a ‘‘custodial account’’ and the
court ‘‘lacks jurisdiction’’ to enter orders to distribute
it.11
The plaintiff, referring to some of the evidence that
she presented at trial after the court opened the judg-
ment, argues that the court’s decision to divide the
assets at issue equally between the parties reflected
an abuse of discretion. The plaintiff argues: ‘‘In short,
despite the clear evidence that the defendant had
engaged in a pattern and practice of failing to disclose
substantial assets, in addition to substantial income,
on his financial affidavit [at the time of the original
dissolution judgment], the trial court simply divided the
undisclosed assets—including [the] E-Trade [account]
and the large tax refunds—between the parties 50/50,
the same percentage split set forth in the original judg-
ment for the accounts that the defendant disclosed.
Here again, the trial court’s judgment was an abuse of
discretion because it cannot reasonably be harmonized
with Billington and its progeny. If, after a retrial, the
percentage division of disclosed assets and undisclosed
assets is the same, why would a rational self-interested
actor engage in full and frank disclosure? He wouldn’t.
The rational course of action would [be] to conceal
assets, or at least some of them. One might not be
caught, and even if caught, the result will be no worse
than it would have been had full disclosure been made.’’
The plaintiff urges this court to conclude that, in light
of evidence that the defendant engaged in a ‘‘campaign’’
to prevent the plaintiff from obtaining information
about at least some of the marital assets at issue, the
court lacked the discretion to divide the assets in the
same proportion as those assets that had been fully
disclosed at the time of the original dissolution
judgment.
Similar to the claim presented in part II of this opin-
ion, the plaintiff’s arguments in the present claim rest
on a factual premise that does not exist. The plaintiff
interprets the evidence presented at trial as clear and
unequivocal proof that the defendant’s failure to dis-
close income and assets was the product of fraud, and
that he attempted to conceal the assets from her up
and through the time of trial. Such a characterization
of the evidence was contested at trial. The plaintiff
attempted to persuade the court that the defendant
had concealed assets, misled the plaintiff, or knowingly
provided false information to defraud the plaintiff. The
court, however, did not find that such conduct had
occurred. Instead, the court found that the defendant
‘‘had originally failed to fully disclose some of his assets
and [had] understated his income’’ and the court ‘‘made
neither an express finding that his failure to do so
amounted to fraud, nor, for that matter, that his behav-
ior did not amount to fraud.’’ In part I of this opinion,
we rejected the plaintiff’s claim that the court’s finding
that fraud had not been proven was clearly erroneous.
In part II of this opinion, we set forth the discretionary
standard of review that applies to a court’s financial
orders in a dissolution case. ‘‘That standard of review
reflects the sound policy that the trial court has the
unique opportunity to view the parties and their testi-
mony, and is therefore in the best position to assess all
of the circumstances surrounding a dissolution action,
including such factors as the demeanor and the attitude
of the parties.’’ Casey v. Casey, 82 Conn. App. 378, 383,
844 A.2d 250 (2004). The court’s division of the assets
at issue does not appear to have been arbitrarily made
or the product of mistake, but was expressly based on
the parties’ intent to divide marital assets evenly, as
was reflected in their original stipulation. In light of the
court’s finding that the plaintiff did not prove that the
defendant acted in a fraudulent manner, the plaintiff’s
argument that the court unfairly rewarded the defen-
dant for wrongful conduct with respect to his financial
affidavit is unpersuasive. We do not interpret the prece-
dent on which the plaintiff relies, including Billington,
Weinstein, Ramin, or Reville, to have required the court
to divide the assets at issue differently, nor are we
persuaded that the court’s decision reasonably could
be interpreted as rewarding the defendant for his failure
to fully disclose one or more assets in a forthcoming
manner.
IV
Fourth, the plaintiff argues that the court erred with
respect to its award of attorney’s fees. We disagree.
In its memorandum of decision, the court stated that
it had reviewed an affidavit of counsel fees submitted
by the plaintiff’s previous attorney, Joseph T. O’Connor.
This affidavit for fees and disbursements totaling
$16,640.87 was dated September 29, 2011, and it covered
the period of November 11, 2009 through March 3, 2011.
The court also stated that it had reviewed an affidavit
of counsel fees submitted by the plaintiff’s attorney,
Eric Higgins. This affidavit for fees and disbursements
totaling $40,040.09 was dated May 10, 2012, and it cov-
ered the period of August 11, 2010 through May 9, 2012.
The court stated that it had found ‘‘said fees to be
reasonable under all the circumstances; and that it is
equitable and appropriate that the [defendant] pay a
portion thereof.’’ The court ordered the defendant to
pay $40,000 in attorney’s fees; $20,000 to be paid directly
to the plaintiff, $10,000 to be paid to O’Connor, and
$10,000 to be paid to Higgins.
In a motion to reargue filed by the plaintiff following
the court’s decision, she argued that it appeared that
the court had overlooked an affidavit of attorney’s fees
that the plaintiff’s attorney, Higgins, had submitted to
the court, absent objection, on the last day of the trial
on July 10, 2013.12 In its original decision, the court
expressly referred to Higgins’ prior affidavit, which cov-
ered Higgins’ services from August 11, 2010 through
May 9, 2012. In its corrected decision of September 27,
2013, the court expressly referred to Higgins’ affidavit
dated July 10, 2013, which covered the period of August
11, 2010 through July 10, 2013. The July 10, 2013 affidavit
set forth fees and disbursements in the amount of
$159,657.82.
In its corrected decision, the court modified its origi-
nal decision in relevant part by stating that it had
reviewed the attorney’s fees affidavit submitted by
O’Connor and the attorney’s fees affidavit submitted by
Higgins, which covered the period of August 11, 2010
through July 10, 2013. The court stated: ‘‘[W]hile the
court finds said fees to be reasonable in light of the
services rendered . . . it further finds said fees to be
disproportionately high when compared to the results
achieved; and that it is equitable and appropriate that
the [defendant] pay a portion thereof.’’ The court
‘‘decline[d] to amend the relief already granted, which
it believe[d] to be fair under all the circumstances.’’13
The plaintiff argues that the court’s award reflected
an abuse of discretion because ‘‘the trial court did [not]
award a single dollar for fourteen months’ worth of
work’’ between May 10, 2012, and July 10, 2013. As the
plaintiff observes, this fourteen month period of time
encompassed discovery, trial preparation, and the trial
itself, which took place over six days. Moreover, the
plaintiff argues that a greater award of attorney’s fees
was required because the defendant engaged in ‘‘egre-
gious litigation misconduct’’ and, under Ramin v.
Ramin, supra, 281 Conn. 354, it is appropriate that the
defendant bear the burden of increased fees that were
occasioned by his misconduct. The plaintiff observes
that, in Ramin, our Supreme Court stated: ‘‘Allowing
recovery for attorney’s fees incurred due to litigation
misconduct will discourage the recalcitrant marital liti-
gant from evading his obligations of full and frank dis-
closure, and will encourage compliance with those
obligations. When a marital litigant who does play by the
rules has to expend her own funds to pay her attorneys
significant amounts of money to enforce discovery
orders against, and uncover assets hidden or trans-
ferred by, the other marital litigant who is flouting those
rules, and when other orders of the court have not
adequately addressed that wrongdoing by one party and
harm to the other, it is only fair that the wrongdoer
compensate the innocent injured party [for having] to
discover that which the wrongdoer already [was] legally
obligated to disclose.’’ (Internal quotation marks omit-
ted.) Id., 354–55.
The plaintiff also argues that the court did not address
adequately the defendant’s misconduct by means of its
other orders and that ‘‘the trial court’s failure to award
any attorneys’ fees whatsoever for the fourteen month
period of time leading up to and including a six day
trial was unreasonable, an abuse of the trial court’s
discretion, and an abdication of the trial court’s respon-
sibility under Billington and its progeny to both redress
the defendant’s misconduct, deter others similarly situ-
ated from engaging in similar misconduct, and insure
that the consequences of the defendant’s misconduct
be borne by the defendant, not the innocent plaintiff.’’
Initially, we observe that the parties disagree with
respect to whether, when the court awarded attorney’s
fees in its original decision, it overlooked Higgins’ July
10, 2013 affidavit. The plaintiff draws our attention to
the fact that, in the court’s original decision, it did not
refer to Higgins’ July 10, 2013 affidavit, but it referred
to his May 10, 2012 affidavit. Also, the plaintiff draws
our attention to the fact that, in its corrected decision,
the court stated that it had reviewed the later affidavit
but ‘‘[d]eclined to amend the relief already granted.’’
From these facts, the plaintiff urges us to infer that
the court failed to consider Higgins’ later affidavit in
awarding attorney’s fees and, consequently, its $40,000
attorney’s fee award was based on only a portion of the
attorney’s fees incurred by the plaintiff in this matter.
It is a fundamental principle of appellate review that
‘‘our appellate courts do not presume error on the part
of the trial court. . . . Rather, we presume that the
trial court, in rendering its judgment . . . undertook
the proper analysis of the law and the facts.’’ (Citations
omitted; internal quotation marks omitted.) Brett Stone
Painting & Maintenance, LLC v. New England Bank,
143 Conn. App. 671, 681, 72 A.3d 1121 (2013). ‘‘[T]he
trial court’s ruling is entitled to the reasonable presump-
tion that it is correct unless the party challenging the
ruling has satisfied its burden demonstrating the con-
trary.’’ (Internal quotation marks omitted.) Kaczynski
v. Kaczynski, 294 Conn. 121, 129, 981 A.2d 1068 (2009).
The record is ambiguous with respect to whether, at
the time of the court’s original decision, it considered
Higgins’ July 10, 2013 affidavit of attorney’s fees. The
court’s explicit reference, in its original decision, to
its having reviewed O’Connor’s affidavit and Higgins’
affidavit of May 10, 2012, certainly suggests that, at that
time, the court improperly failed to consider Higgins’
affidavit of July 10, 2013. Yet, we recognize that, in
setting forth its award, the court was not obligated to
refer to all of the matters in the record on which it
relied, and its failure to refer to the later filed affidavit
in its original decision does not necessarily reflect that,
at that time, it overlooked it. We disagree with the
plaintiff that in the court’s corrected decision it shed
any light on whether it previously had overlooked the
July 10, 2013 affidavit. The corrected decision, however,
dispels any ambiguity with respect to whether the court
considered the July 10, 2013 affidavit in arriving at its
final judgment. There, the court unambiguously stated
that it had, in fact, considered the affidavit.
Even if we were to presume that the court overlooked
the July 10, 2013 affidavit in its initial decision, the
plaintiff must demonstrate that reversible error exists
in light of the court’s final decision. Our review of the
trial court’s judgment encompasses both its original and
corrected decisions. In neither its original nor corrected
decisions did the court state that it would not consider
the later affidavit or that it would not award fees for
Higgins’ representation up until July 10, 2013. Rather,
in its corrected decision, the court, relying on the later
affidavit, explained that it was ‘‘equitable and appro-
priate’’ under the circumstances for the defendant to
pay $40,000, which represented a portion of the fees
incurred by the plaintiff in this case because, in its view,
the remainder of the fees at issue, although ‘‘reasonable
in light of the services rendered’’ were ‘‘disproportion-
ately high when compared with the results achieved.’’
Thus, we are not faced with a situation, as the plaintiff
suggests, in which the court improperly refused to con-
sider awarding fees allegedly incurred during a substan-
tial portion of the litigation.
The plaintiff does not draw our attention to any
authority in support of the proposition that, in light
of the court’s finding that the defendant had failed to
disclose fully his income and assets at the time of the
original dissolution judgment, it was obligated to award
the plaintiff all of the fees incurred by her. ‘‘The abuse
of discretion standard of review applies when reviewing
a trial court’s decision to [grant or] deny an award of
attorney’s fees. . . . Under the abuse of discretion
standard of review, [w]e will make every reasonable
presumption in favor of upholding the trial court’s rul-
ing, and only upset it for a manifest abuse of discretion.
. . . [Thus, our] review of such rulings is limited to the
questions of whether the trial court correctly applied
the law and reasonably could have reached the conclu-
sion that it did.’’ (Citations omitted; internal quotation
marks omitted.) Munro v. Munoz, 146 Conn. App. 853,
858, 81 A.3d 252 (2013).
‘‘Our Supreme Court consistently has noted that
[trial] courts have a general knowledge of what would
be reasonable compensation for services which are
fairly stated and described. . . . Because of this gen-
eral knowledge, [t]he court [is] in a position to evaluate
the complexity of the issues presented and the skill with
which counsel had dealt with these issues.’’ (Citation
omitted; internal quotation marks omitted.) Rubenstein
v. Rubenstein, 107 Conn. App. 488, 503, 945 A.2d 1043,
cert. denied, 289 Conn. 948, 960 A.2d 1037 (2008). The
wide range of factors that a court properly may consider
in determining reasonable compensation to an attorney
are summarized in Rule 1.5 of the Rules of Professional
Conduct. O’Brien v. Seyer, 183 Conn. 199, 206, 439 A.2d
292 (1981); Esposito v. Esposito, 71 Conn. App. 744,
749–50, 804 A.2d 846 (2002). These factors include: ‘‘(1)
The time and labor required, the novelty and difficulty
of the questions involved, and the skill requisite to per-
form the legal service properly; (2) The likelihood, if
made known to the client, that the acceptance of the
particular employment will preclude other employment
by the lawyer; (3) The fee customarily charged in the
locality for similar legal services; (4) The amount
involved and the results obtained; (5) The time limita-
tions imposed by the client or by the circumstances;
(6) The nature and length of the professional relation-
ship with the client; (7) The experience, reputation, and
ability of the lawyer or lawyers performing the services;
and (8) Whether the fee is fixed or contingent.’’ (Empha-
sis added.) Rules of Professional Conduct 1.5 (a); see
also Glastonbury v. Sakon, 184 Conn. App. 385, 393–94,
A.3d (2018) (setting forth factors).
Here, the court’s decision reflects that it considered
the reasonableness of the fees generally, but it focused
specifically on the fact that the plaintiff’s attorneys sub-
mitted affidavits for fees totaling $176,298.69, an
amount it found to be ‘‘disproportionately high when
compared to the results achieved . . . .’’ In light of the
precedent set forth previously, the court’s consider-
ation of the results obtained by the plaintiff legally was
appropriate. The plaintiff does not challenge the court’s
determination that the fees were disproportionately
high when compared to the results actually obtained
by her but, once more, relies on her belief that the
defendant engaged in fraudulent conduct. She argues
that the court’s award reflected an abuse of discretion
because the defendant defrauded the plaintiff by failing
to disclose income and assets at the time of the original
judgment and up and until the time of trial engaged in
‘‘determined, concerted efforts to prevent the plaintiff
from learning the truth’’ about his assets.
Similar to the claims that we rejected in parts II and III
of this opinion, the defendant’s challenge to the court’s
award of attorney’s fees is flawed because it is based
on a factual premise that does not exist, namely, that
the defendant acted in a fraudulent manner with respect
to his disclosure of income and assets. Relying on our
previous analysis in this opinion, we observe that,
although the court agreed with the plaintiff that the
defendant underreported income and assets at the time
of the original dissolution judgment, the court expressly
found that the plaintiff did not sustain her burden of
proving that the defendant acted fraudulently with
respect to his financial affidavit. Although the plaintiff
attempts to analogize the facts of the present case to
those in Ramin, the court in the present case did not
find that the defendant engaged in egregious litigation
misconduct. The issue of whether the defendant acted
fraudulently in his financial disclosure and in connec-
tion with discovery in the present trial was hotly con-
tested, but the court did not find that the plaintiff had
sustained her burden of proving fraud. The court found
that the defendant failed to fulfill his obligation to dis-
close fully his income and his assets, but did not attri-
bute this failure to fraud. As a result of the failures in
disclosure, however, the court not only modified several
of its financial orders, but awarded the plaintiff $40,000
in attorney’s fees. The plaintiff challenges the court’s
exercise of its discretion in awarding attorney’s fees
but has failed to demonstrate that the court’s factual
finding concerning fraud was clearly erroneous.
We are not persuaded by the argument rejected by
the trial court that the defendant sought to defraud
and that the court erroneously failed to penalize the
defendant by awarding the plaintiff greater alimony and
asset awards. In light of the foregoing, we conclude
that the plaintiff has failed to demonstrate that the
court’s award of attorney’s fees reflects an abuse of dis-
cretion.
V
Lastly, the plaintiff claims that the court erred by
failing in its financial orders to promote full and frank
disclosure in financial affidavits and by failing to
address adequately the defendant’s omission of sub-
stantial income and assets from his financial affidavits.
We disagree.
The plaintiff argues that even if the court’s individual
financial orders did not reflect an abuse of discretion,
the complete mosaic of the court’s orders ‘‘surely did.’’
According to the plaintiff, ‘‘the trial court’s inadequate
awards of alimony, property and attorney’s fees com-
pounded to produce a result that was disproportionate
to the magnitude of the defendant’s numerous, substan-
tial nondisclosures on the financial affidavit that he
submitted at the time of the original judgment, [and]
his recalcitrance in the discovery process . . . . In
their aggregate, the trial court’s orders constituted an
abuse of discretion because they plainly failed ade-
quately to enforce the defendant’s duty to fully and
fairly disclose his assets on his financial affidavit.’’ The
plaintiff urges us to conclude that, under the circum-
stances, the court was obligated ‘‘adequately to redress
the defendant’s fraudulent and material misrepresenta-
tions in his financial affidavit’’ by providing her with
more favorable financial orders, but that it did not do so.
The present claim requires little discussion because,
similar to the claims addressed in parts II, III, and IV
of this opinion, it is based on the plaintiff’s characteriza-
tion of the defendant’s conduct as fraudulent in nature.
The court found that discrepancies existed with respect
to the defendant’s assets and income, and it unambigu-
ously provided the plaintiff with a remedy. As we have
stated previously, however, the court expressly found
that the plaintiff had not proven fraud, and the plaintiff
has failed to demonstrate that this critical factual find-
ing was clearly erroneous. Having rejected the plaintiff’s
claims that the court’s alimony, property, and attorney’s
fees orders were improper when viewed in light of
alleged but not proven fraudulent conduct by the defen-
dant, we likewise conclude that the plaintiff has failed
to prove that the court’s orders, when viewed in their
entirety, reflected an abuse of discretion on this ground.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In 2007, the parties’ marriage was dissolved, and the court entered finan-
cial orders. In 2010, the plaintiff brought a motion to open the judgment so
that the court could reconsider its financial orders. The plaintiff’s motion
to open was based on her allegation that, at the time that the court rendered
the original dissolution judgment, the defendant, Walter Sing, fraudulently
submitted inaccurate financial affidavits on which the court relied. In 2010,
the parties stipulated that the judgment could be opened so that the court
could reconsider the court’s financial orders, but that the opening would
not affect the actual dissolution of their marriage. The trial court, Shay, J.,
opened the original dissolution judgment for the purpose of reconsidering
its financial orders. In 2013, the plaintiff brought the present appeal from
the judgment rendered by the trial court after it reissued financial orders.
During the pendency of the present appeal, this court asked the parties
to submit supplemental briefs addressing the issue of whether, in the absence
of a finding of fraud on the part of the defendant, the trial court had subject
matter jurisdiction to open the original judgment of dissolution for the
purpose of revisiting its financial orders. The parties complied with this
order. In 2016, this court, having concluded that the trial court lacked subject
matter jurisdiction to grant the plaintiff’s motion to open the judgment of
dissolution, did not reach the merits of the claims raised by the plaintiff,
both in her principal and supplemental appellate briefs, but reversed the
judgment of the trial court and remanded the case to the trial court with
direction to dismiss the motion to open. Reinke v. Sing, 162 Conn. App.
674, 133 A.3d 510 (2016). In 2018, following a grant of certification to appeal,
our Supreme Court, concluding that the trial court properly exercised its
authority in opening the judgment, reversed this court’s judgment and
remanded the case to this court for consideration of the merits of the
plaintiff’s claims. Reinke v. Sing, supra, 328 Conn. 393.
2
The court, Shay, J., issued an initial decision in this matter on August
23, 2013, and, in response to a motion to reargue filed by the plaintiff, issued
a corrected decision on September 27, 2013, in which it modified some of
the findings and orders set forth in its initial decision.
3
In relevant part, this court’s order stated: ‘‘In the memorandum of deci-
sion dated August 23, 2013, the trial court stated that it granted the [plaintiff’s]
motion to open the judgment by agreement of the parties and ‘without a
finding of fraud.’ . . . [T]he court, Shay, J., is ordered to articulate, for
the purpose of determining the court’s subject matter jurisdiction, whether
it found that there was no fraud or whether it simply was not making an
express finding regarding fraud. If the latter, the court is ordered further
to articulate whether it found that there had been fraud as to the first
judgment of dissolution.’’
4
On August 13, 2015, following the trial court’s articulation, the plaintiff
filed an amended appeal that encompassed the articulation. Thereafter, the
plaintiff moved for permission to file a supplemental brief for the purpose
of claiming that, in its articulation, the trial court abused its discretion by
finding that she failed to prove by clear and convincing evidence that the
defendant committed fraud at the time of the original dissolution judgment.
This court granted the plaintiff’s motion. After the plaintiff filed her supple-
mental brief, the court granted the defendant permission to file a supplemen-
tal reply brief responding to the newly-raised claim of the plaintiff related
to the court’s finding that she had failed to sustain her burden of proving
that fraud had occurred. Thus, the claim and related arguments concerning
the plaintiff’s first claim in the present appeal are set forth in the parties
supplemental briefs.
5
Although the parties stipulated to open the original judgment of dissolu-
tion for the purpose of permitting the court to reconsider its financial orders,
and the court did not base its decision to open the judgment on the plaintiff’s
allegation that the defendant had acted in a fraudulent manner, we address
the plaintiff’s claim related to fraud because the parties litigated the issue
before the trial court, the parties have briefed the issue before this court,
and the issue of fraud is integral to the plaintiff’s remaining appellate claims,
which challenge the court’s financial orders and its award of attorney’s fees.
6
‘‘Moreover . . . [l]awyers who represent clients in matrimonial dissolu-
tions have a special responsibility for full and fair disclosure, for a searching
dialogue, about all of the facts that materially affect the client’s rights and
interests.’’ (Citation omitted; internal quotation marks omitted.) Weinstein
v. Weinstein, supra, 275 Conn. 686–87.
7
The plaintiff observes that her claims of fraudulent nondisclosure
‘‘remained at the center of her case throughout the proceedings.’’
8
The court found that, as of October 2, 2007, the net income of the plaintiff
was zero.
9
Although the plaintiff correctly observes that the court did not refer to
the October 2, 2007 affidavit in its decision, the plaintiff has not demonstrated
that the court’s reliance on the September 12, 2007 affidavit likely affected
its judgment. Plainly, the court found that ‘‘substantial discrepancies’’ existed
between what the defendant reported at the time of the original judgment
and what it found to be the defendant’s income at the time of trial. The
plaintiff does not contest the ultimate findings made by the court concerning
the defendant’s income and assets in 2007, upon which it based its financial
orders. In light of the court’s finding with respect to fraud, we are not
persuaded that, had the court relied on the October 2, 2007 affidavit, such
reliance would have led to a different alimony award.
10
The plaintiff observes: ‘‘Under the original judgment, the total unallo-
cated alimony and support throughout the base alimony term, exclusive of
any extension that the plaintiff might obtain, was $359,999.64. The total
awarded by the trial court [after opening the judgment] over the alimony
term was $399,600, an increase of just 11 percent.’’
11
The plaintiff does not dispute that this account ‘‘was established for
the benefit of [the defendant’s] children as well as the children of his sister
. . . .’’ Although the plaintiff lists this custodial account among the marital
assets on which she focuses in the present claim, she does not provide any
further analysis with respect to the account, let alone a challenge to the
jurisdictional ground on which the court expressly declined to enter any
orders with respect to the account. Because the plaintiff leaves unchallenged
the basis on which the court ruled, we will not disturb its ruling.
12
The transcript of the proceedings on July 10, 2013, reflects that, absent
objection, Higgins presented Judge Shay with an affidavit of attorney’s fees
on that date. When presented with the affidavit, Judge Shay replied: ‘‘[T]hat’s
fine. I’ll make sure we get that logged in.’’ The affidavit does not appear to
have been made part of the case file in its own right. Nonetheless, it appears
in the trial court file as an exhibit attached to the plaintiff’s motion to
reargue dated September 11, 2013.
13
Additionally, we note that, in January, 2012, after the court opened
the judgment, the plaintiff brought a motion for contempt and to compel
discovery against the defendant. The court granted this motion in part and
ordered the defendant to pay $1000 to the plaintiff for attorney’s fees incurred
by her in connection with the motion. In its original and corrected decisions,
the court ordered the defendant to pay this outstanding arrearage to the
plaintiff for attorney’s fees.