Gershon v. Back

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ELANA GERSHON v. RONALD BACK
(SC 20599)
McDonald, D’Auria, Mullins, Ecker and Alexander, Js.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dissolved
by a New York court, appealed to the Appellate Court from the judgment
of the trial court, which dismissed her motion to open and set aside
the final New York judgment of divorce for lack of subject matter
jurisdiction. Before their marriage, the parties entered into a prenuptial
agreement, pursuant to which the plaintiff waived her interest in certain
of the defendant’s business interests. During the divorce proceedings,
the plaintiff challenged the enforceability of the prenuptial agreement,
but the New York court rejected the claim, finding no evidence of fraud
or overreaching by the defendant. The parties eventually settled their
dispute by way of a separation agreement, which superseded the prenup-
tial agreement and resolved the parties’ respective financial and property
rights. The separation agreement also included a choice of law provision,
which designated New York law as governing the agreement, and a
provision incorporating New York’s plenary action rule, which requires
a party seeking to modify or vacate a separation agreement that survives
a final judgment of divorce to file a plenary action on the contract
instead of a motion to open, modify or vacate the divorce judgment.
The final judgment of divorce incorporated the separation agreement
by reference but provided that the separation agreement would survive
and not be merged into the judgment. The parties both later moved
to Connecticut, where the plaintiff registered the New York divorce
judgment pursuant to statute (§ 46b-71 (a)). Thereafter, the plaintiff
moved to open and set aside the divorce judgment in the Superior
Court, claiming that it was obtained through the defendant’s fraudulent
conduct. The plaintiff requested that the Connecticut court open the
New York divorce judgment and vacate the settlement agreement.
Applying New York law, the trial court concluded that, because the
separation agreement was incorporated but not merged into the divorce
judgment, the plaintiff could not challenge the enforceability of the
agreement by way of a motion but, rather, was required to do so by
commencing a plenary action. The trial court then dismissed the plain-
tiff’s motion for lack of subject matter jurisdiction and rendered judg-
ment for the defendant. The Appellate Court agreed with the trial court
that New York’s plenary action rule was substantive for choice of law
purposes but disagreed with the trial court’s conclusion that the trial
court lacked subject matter jurisdiction, relying on, among other things,
the jurisdiction conferred by § 46b-71 (b). Accordingly, the Appellate
Court concluded that the trial court should have denied, rather than
dismissed, the plaintiff’s motion to open and set aside the divorce judg-
ment. On the granting of certification, the plaintiff appealed to this court
from the Appellate Court’s judgment.
Held that the Appellate Court correctly concluded that the New York plenary
action rule is substantive, and not procedural, for choice of law purposes
and that the trial court should have denied, rather than dismissed, the
plaintiff’s motion to open and set aside the divorce judgment:
Under the conflict of law rules governing foreign matrimonial judgments
registered in Connecticut, as codified in § 46b-71 (b), the plaintiff’s
motion to open and set aside the divorce judgment was governed by
New York substantive law and Connecticut procedural law, and that
approach was consistent with the well established principle that, in a
choice of law situation, the forum state will apply its own rules to
issues of procedure and matters of judicial administration, even if the
substantive law of another jurisdiction applies, because it would often
be disruptive or difficult to apply the local rules of another state.
Although New York’s plenary action rule, which is principally concerned
with preserving the parties’ vested contractual rights to enforce the
separation agreement in a separate civil action, fell into a gray area
between issues relating primarily to judicial administration and those
concerned primarily with the rights and liabilities of the parties, this
court concluded that the plenary action rule was so interwoven with
the plaintiff’s cause of action as to be deemed substantive for choice of
law purposes.
The fact that the parties explicitly incorporated the New York plenary
action rule into the separation agreement, which provided that their
contractual rights could not be invalidated or otherwise affected by any
final judgment of divorce, was a weighty reason for applying that law
rather than the local law of the forum, insofar as it demonstrated that
the issue was one to which the parties had likely given thought.
Moreover, the application of the New York plenary action rule would
affect the ultimate substantive outcome of the case because the parties
had contractual rights that could not be undone by modifying the divorce
judgment, there was, to this court’s knowledge, no settled precedent
classifying the plenary action rule as procedural or substantive for choice
of law purposes, and the application of that rule would not impose
an undue burden on Connecticut courts, which have recognized that
separation agreements are contracts that may be litigated independently
of a divorce judgment in a civil action sounding in contract.
Argued October 13, 2022—officially released February 21, 2023
Procedural History
Motion by the plaintiff to open a foreign judgment
of dissolution, brought to the Superior Court in the
judicial district of Stamford-Norwalk, where the court,
Hon. Michael E. Shay, judge trial referee, dismissed
the plaintiff’s motion, and the plaintiff appealed to the
Appellate Court, Lavine, Bright and Beach, Js., which
reversed the judgment of the trial court and remanded
the case with direction to deny the motion, from which
the plaintiff, on the granting of certification, appealed
to this court. Affirmed.
James P. Sexton, with whom were Julia K. Conlin
and, on the brief, John R. Weikart, for the appellant
(plaintiff).
Kenneth J. Bartschi, with whom were Karen L. Dowd
and, on the brief, Wesley W. Horton and Joseph T.
O’Connor, for the appellees (defendants).
Opinion
ECKER, J. New York’s so-called ‘‘plenary action rule’’
requires a party seeking to modify or vacate a separation
agreement that survives a final judgment of divorce to
file a plenary action on the contract instead of a motion
to open, modify or vacate the divorce judgment. This
certified appeal requires us to determine whether New
York’s plenary action rule is procedural or substantive
for choice of law purposes. The trial court concluded
that the rule was substantive and dismissed for lack
of subject matter jurisdiction the motion, filed by the
plaintiff, Elana Gerson, to open and set aside the final
judgment of divorce. The Appellate Court agreed that
the New York rule was substantive but disagreed that
the trial court lacked subject matter jurisdiction and,
therefore, concluded that the plaintiff’s motion should
have been denied instead of dismissed. Gershon v. Back,
201 Conn. App. 225, 253–54, 242 A.3d 481 (2020). We
affirm the judgment of the Appellate Court.
This case has a long and contentious history. The
plaintiff and the defendant, Ronald Back,1 were married
on August 16, 1997. Prior to their marriage, the parties
entered into a prenuptial agreement, pursuant to which
the plaintiff waived her interest in the defendant’s sepa-
rate property, including his business interest in Fla-
vormatic Industries (Flavormatic). During their mar-
riage, the parties resided in New York and had two
children. In February, 2009, the parties separated, and
the plaintiff commenced a divorce action in the New
York Supreme Court (New York court). The plaintiff
challenged the enforceability of the prenuptial agree-
ment, but the New York court rejected the plaintiff’s
claim, finding that she ‘‘had presented no evidence
establishing that the prenuptial agreement was pro-
cured by the defendant’s fraud or overreaching.’’ (Empha-
sis omitted; internal quotation marks omitted.)
In April, 2011, during their divorce trial, the parties
settled their dispute by entering into a ‘‘[s]tipulation of
[s]ettlement and [a]greement’’ (separation agreement),
which superseded the prenuptial agreement and resolved
the parties’ ‘‘respective financial and property rights,
support, and all other respective rights, remedies, privi-
leges and obligations to each other, arising out of the
marriage . . . .’’ Pursuant to the separation agreement,
the parties agreed to keep their own separate property
and the income and appreciation thereof ‘‘free from any
claim whatsoever from the other party.’’ Additionally,
the parties agreed to waive their respective rights to
each other’s retirement accounts and to divide the pro-
ceeds of the sale of the marital residence. The defendant
also agreed to pay the plaintiff $400,000 ‘‘[a]s further
equitable distribution of the parties’ assets . . . .’’ The
separation agreement contains a choice of law provi-
sion, which provides that ‘‘[a]ll matters affecting the
execution, interpretation, performance and enforce-
ment of this [a]greement and the rights of the parties
hereto shall be governed by the laws of the [s]tate of
New York.’’
The separation agreement incorporates New York’s
plenary action rule by explicitly providing that it ‘‘shall
not be invalidated or otherwise affected by any decree
or judgment of separation or divorce made by any court
in any action [that] may presently exist or may hereafter
be instituted by either party against the other for a separa-
tion or divorce, and the obligations and covenants of
this [a]greement shall survive any decree or judgment
of separation or divorce and shall not merge therein,
and this [a]greement may be enforced independently
of such decree or judgment.’’ The separation agreement
also states that ‘‘[b]oth parties agree, stipulate and con-
sent that no judgment, order or decree in any action
for divorce or separation, whether brought in the [s]tate
of New York, or in any other state or country having
jurisdiction [over] the parties hereto, shall make any
provisions for alimony or child support or affect the
property rights of either party in a manner inconsistent
with the provisions of this [a]greement, but if any provi-
sion is made in any judgment, order or decree which
is inconsistent with the provisions of this [a]greement,
or imposes a different or greater obligation on either
of the parties hereto than provided in this [a]greement,
the provisions of this [a]greement shall take precedence
and shall be the primary obligation of both of the parties
hereto. It is further agreed that upon the trial of any
action [that] may hereafter be instituted by either of
the parties against the other for an absolute divorce in
any court of competent jurisdiction, the party instituting
such action shall read the provisions of this [a]greement
relating to maintenance and support into the record of
such action as a stipulation between the parties as to
the questions of maintenance and support. Such party
shall further request that the decree shall contain a
provision specifically reciting, in words or substance,
‘said [a]greement is not merged in, but survives this
decree, and the parties thereof are hereby ordered to
comply with it on its terms at all times and places.’ ’’
On May 11, 2011, the New York court dissolved the
parties’ marriage in a final judgment of divorce, which
incorporated the separation agreement by reference but
provided that the separation agreement ‘‘shall survive
and shall not be merged in this judgment . . . .’’ The
judgment of divorce further stated that ‘‘jurisdiction
over all matters affecting the execution, interpretation,
performance and enforcement of this judgment [and/or]
the [separation agreement] . . . shall be as specifically
provided by the parties’ [separation agreement].’’
The plaintiff remarried three days later and moved
to Greenwich with her new husband and the parties’
children. The defendant later remarried and moved to
Connecticut, as well. On October 27, 2014, the plaintiff
registered the final judgment of divorce in the Superior
Court in the judicial district of Stamford-Norwalk pursu-
ant to General Statutes § 46b-71.2
Extensive litigation in the Superior Court followed.
In November, 2014, the plaintiff moved to modify the
judgment to increase the defendant’s child support obli-
gations, arguing that ‘‘there has been a substantial
change in circumstances since the date of judgment in
that three years have passed since the order was entered
. . . and the defendant’s income has increased by at
least [15] percent . . . .’’3 In connection with this
motion, the plaintiff obtained discovery regarding the
defendant’s finances for the three years preceding the
filing of the motion. Following full disclosure of the
parties’ respective finances, the trial court granted the
plaintiff’s motion, increased the defendant’s child sup-
port obligation, and awarded the plaintiff attorney’s
fees.
After the trial court’s order issued, there was a flurry
of further litigation, including motions for reargument
filed by both parties, the defendant’s motion to offset
his child support obligation with a credit for college
room and board expenses, and the plaintiff’s motions
for contempt due to the defendant’s failure to pay the
retroactive amount of his increased child support obli-
gation and the plaintiff’s attorney’s fees. The trial court
denied the motions for reargument, granted the defen-
dant’s motion for a credit, and denied the plaintiff’s
motions for contempt.
The plaintiff then filed a motion to open and set aside
the divorce judgment, which is the operative motion at
issue in this appeal. In her motion, the plaintiff claimed
that she had learned during the modification proceeding
that the divorce judgment ‘‘was obtained through the
fraudulent conduct of the defendant’’ in that he ‘‘made
material misrepresentations of fact to the court and to
the plaintiff in his sworn financial statement provided
at the time of the settlement.’’ Specifically, referring to
the defendant’s ‘‘[a]ttached 2010 [i]ncome [i]nforma-
tion,’’ the plaintiff alleged that the defendant’s sworn
statement of net worth dated April 1, 2011, listed his
gross income for the year 2011 as ‘‘0.00,’’ even though
his W-2 form reported wages from Flavormatic in the
amount of $1,900,000 in 2011.4 (Emphasis omitted; inter-
nal quotation marks omitted.) The plaintiff further alleged
that the defendant ‘‘stockpiled money in his corporation
in order to avoid equitable distribution of marital assets
and to avoid paying alimony and child support.’’ (Empha-
sis omitted.) According to the plaintiff, ‘‘there is a rea-
sonable probability that the result of the settlement
would have been different had the defendant not made
material misrepresentations of fact . . . .’’ The plain-
tiff’s motion asked the court to open the final judgment
of divorce, to vacate the settlement agreement, to order
a new trial, and to award the plaintiff attorney’s fees.
In an accompanying memorandum of law, the plaintiff
requested postjudgment discovery, arguing that she had
met her burden under Oneglia v. Oneglia, 14 Conn. App.
267, 540 A.2d 713 (1988), of demonstrating sufficient
indicia of fraud to justify opening the judgment and
conducting further discovery. See id., 270 (plaintiff was
permitted to conduct postjudgment discovery if she
‘‘was able to substantiate her allegations of fraud beyond
mere suspicion’’).
The defendant opposed the plaintiff’s motion to open,
arguing that the plaintiff had failed to state a claim for
fraud or misrepresentation under New York law because
the defendant’s 2011 statement of net worth was not
inaccurate. The defendant explained that his ‘‘income
for 2011 could not be listed in March of 2011, [because]
over 75 percent of the year remained,’’ and, instead,
‘‘[a]s properly and plainly stated in the statement of net
worth, [the defendant] listed his total income for 2010
[because] that was the last full year of income avail
able.’’ (Emphasis omitted.) The defendant further claimed
that (1) the plaintiff was collaterally estopped from
litigating the issue of the defendant’s net worth because
she ‘‘was provided with substantial discovery regarding
[the defendant’s] businesses during the divorce action’’
and previously had claimed in that action, prior to its
settlement, that the defendant was stockpiling income
in Flavormatic, (2) the plaintiff ratified the separation
agreement by accepting the benefits of the agreement
for more than seven years, and (3) the plaintiff’s motion
was untimely under the New York statute of limitations
governing claims of fraud.
The trial court conducted a three day evidentiary
hearing pursuant to Oneglia to determine whether the
plaintiff could substantiate her allegations of fraud to
a sufficient degree to allow postjudgment discovery. At
the hearing, the trial court heard testimony from the
defendant, the plaintiff, and the plaintiff’s expert wit-
ness in forensic accounting, who testified regarding the
defendant’s income and retained earnings in Flavormatic
for the year 2011.
Following the hearing, the trial court issued a memo-
randum of decision, denying the plaintiff’s request for
postjudgment discovery. The trial court concluded that
the choice of law provision in the separation agreement
‘‘was arrived at without any fraud or duress, and with
the advice of counsel, [that] it should be given effect,’’
and, therefore, that New York law ‘‘relating to postjudg-
ment discovery in matrimonial cases . . . should ulti-
mately control and not Oneglia . . . .’’ The court
observed that, in New York, postjudgment discovery is
not permitted unless there is ‘‘an affirmative, factual
showing, at least prima facie, that the agreement was
unfair or unreasonable when executed or unconsciona-
ble at the time of the [rendering] of final judgment.’’
(Emphasis omitted; internal quotation marks omitted.)
Applying this standard, the court concluded that the
plaintiff had ‘‘failed to meet her burden, with at least
a prima facie showing, either that the [separation agree-
ment] was unfair or unreasonable when negotiated, or
unconscionable when the [divorce] judgment was [ren-
dered], or that the defendant’s actions amounted to
wilful fraud or fraudulent concealment. Moreover, she
has not established that, even if the judgment were to
be opened and the [separation agreement] were to be
set aside . . . that the resulting judgment would likely
be substantially different,’’ reasoning that (1) the New
York court had sustained the validity of the parties’
prenuptial agreement, finding no evidence of fraud or
overreaching, (2) under the prenuptial agreement, the
‘‘ ‘operative event’ ’’ for purposes of the division of mari-
tal property was the filing of the complaint for divorce
in February, 2009, and, therefore, ‘‘the relevant income
[was] not the defendant’s income for 2011 but, rather,
that of the years 2004 through 2008,’’ (3) the large
increase in the defendant’s income following the render-
ing of the final judgment of divorce in 2011 was not the
product of ‘‘fraud or fraudulent intent on the part of
the defendant’’ but plausible business decisions, and
(4) ‘‘the plaintiff has accepted the benefit of the agree-
ment for more than three years and, by so doing, ‘effec-
tively ratified’ it, and she should be estopped from chal-
lenging it on the basis of fraud.’’
Having determined that the plaintiff was not entitled
to postjudgment discovery, the trial court addressed
New York law regarding the finality of judgments ‘‘in
family relations matters, [when] the judgment is based
[on] an agreement of the parties.’’ The trial court consid-
ered it critically important that the separation agree-
ment was incorporated but not merged into the final
judgment of divorce, pointing out that, in New York,
‘‘[i]t is well settled that a party to a stipulation that is
incorporated but not merged into a judgment of divorce
cannot challenge the enforceability of the stipulation
by way of a motion but, rather, must do so by com-
mencement of a plenary action.’’ The trial court ordered
the parties to show cause why the plaintiff’s motion to
open and set aside the judgment ‘‘should not be denied
consistent with New York law.’’
The trial court entertained oral argument on its order
to show cause, after which it dismissed the plaintiff’s
motion for lack of subject matter jurisdiction. The court
explained that, under New York law, a final judgment
of divorce ‘‘cannot [be] attack[ed] . . . based on a
motion to open. It must be done by a plenary action, a
contract action . . . .’’ Accordingly, the court rendered
judgment in favor of the defendant.
The plaintiff appealed from the judgment of the trial
court to the Appellate Court, claiming, among other
things, that the trial court improperly had applied ‘‘New
York procedural rules, rather than Connecticut proce-
dural rules, when it dismissed [her] motion.’’5 Gershon
v. Back, supra, 201 Conn. App. 227. The Appellate Court
disagreed, holding that ‘‘the New York rule requiring a
plenary action to challenge the terms of a settlement
agreement, incorporated but not merged into the judg-
ment of dissolution, is substantive [for choice of law
purposes].’’ Id., 249. The Appellate Court reasoned that,
under New York law, ‘‘[a] stipulation of settlement not
merged into the judgment is independently binding on
the parties, and New York courts may not impair the
parties’ contractual rights under the agreement by modi-
fying the divorce judgment.’’ Id., 251. Because New York’s
plenary action rule ‘‘affects the very existence of the cause
of action,’’ the Appellate Court concluded that it was ‘‘sub-
stantive and not procedural.’’ Id., 253.
Although the Appellate Court agreed ‘‘with the [trial]
court’s conclusion that, under New York substantive
law, the plaintiff was required to bring a plenary action’’;
id.; it disagreed ‘‘with the [trial] court’s conclusion that
it lacked subject matter jurisdiction.’’ Id., 254. The
Appellate Court observed that the trial ‘‘court had juris-
diction to consider the motion to open pursuant to
[General Statutes] §§ 46b-1 and 46b-71 (b)’’ and, there-
fore, concluded that the trial court ‘‘should have denied,
rather than dismissed, the motion to open.’’ Id. We sub-
sequently granted the plaintiff’s petition for certification
to appeal, limited to the following issue: ‘‘Did the Appel-
late Court correctly determine that a New York law is
substantive rather than procedural for choice of law
purposes when that law would require a litigant in the
parties’ circumstances who is seeking to obtain post-
judgment relief in a marital dissolution case to file a
plenary action rather than a motion to open the dissolu-
tion judgment?’’ Gershon v. Back, 337 Conn. 901, 901–
902, 252 A.3d 364 (2021).
On appeal to this court, the plaintiff claims that New
York’s plenary action rule is procedural for choice of
law purposes and, therefore, inapplicable to this Con-
necticut action because it merely designates the means
by which to vindicate her common-law contractual
rights. The defendant responds that New York’s plenary
action rule is substantive because the parties’ common-
law contractual rights under the separation agreement
are independent of the divorce judgment, and an order
opening, modifying, or vacating the divorce judgment
cannot affect those rights.6 For the reasons that follow,
we agree with the defendant.
‘‘It is well settled that [c]hoice of law questions are
subject to de novo review.’’ (Internal quotation marks
omitted.) Reclaimant Corp. v. Deutsch, 332 Conn. 590,
599, 211 A.3d 976 (2019). To determine whether New
York or Connecticut law governs a motion to open
and vacate a New York judgment of divorce registered
pursuant to § 46b-71, we apply Connecticut’s conflict
of law rules. See id. Subsection (b) of § 46b-71 codifies
the conflict of law rules governing a foreign matrimonial
judgment registered in this state and provides in rele-
vant part that such a judgment ‘‘shall have the same
effect and may be enforced or satisfied in the same
manner as any like judgment of a court of this state
and is subject to the same procedures for modifying,
altering, amending, vacating, setting aside, staying or
suspending said judgment as a judgment of a court of
this state; provided, in modifying, altering, amending,
setting aside, vacating, staying or suspending any such
foreign matrimonial judgment in this state the substan-
tive law of the foreign jurisdiction shall be controlling.’’
The plaintiff’s motion to open and set aside the judg-
ment is governed by New York substantive law and
Connecticut procedural law.
This approach is consistent with the Restatement
(Second) of Conflict of Laws and the well established
principle that, ‘‘in a choice of law situation the forum
state will apply its own procedure . . . .’’ (Internal quo-
tation marks omitted.) Reclaimant Corp. v. Deutsch,
supra, 332 Conn. 603. As we explained in Reclaimant
Corp., under § 122 of the Restatement (Second), ‘‘ ‘[t]he
forum has compelling reasons for applying its own
rules’ to procedural issues, even if the substantive law
of another jurisdiction applies, because, ‘in matters of
judicial administration, it would often be disruptive or
difficult . . . to apply the local rules of another state.
The difficulties involved in doing so would not be repaid
by a furtherance of the values that the application of
another state’s local law is designed to promote.’ ’’ Id.,
604, quoting 1 Restatement (Second), Conflict of Laws
§ 122, comment (a), p. 350 (1971).
The line between substance and procedure is not
always easily drawn. ‘‘[Although] there is no precise
definition of either [substantive or procedural law], it
is generally agreed that a substantive law creates,
defines and regulates rights [whereas] a procedural law
prescribes the methods of enforcing such rights or
obtaining redress.’’ (Internal quotation marks omitted.)
Weber v. U.S. Sterling Securities, Inc., 282 Conn. 722,
739, 924 A.2d 816 (2007). Although procedural rules
generally ‘‘relate to the remedy as distinguished from
the right,’’ we have recognized that some rules are ‘‘so
interwoven with . . . the cause of action as to become
one of the congeries of elements necessary to establish
the right . . . .’’ (Internal quotation marks omitted.)
Reclaimant Corp. v. Deutsch, supra, 332 Conn. 604–605;
see Thomas Iron Co. v. Ensign-Bickford Co., 131 Conn.
665, 669, 42 A.2d 145 (1945) (foreign law is substantive
when ‘‘the foreign remedy is so inseparable from the
cause of action that it must be enforced to preserve
the integrity and character of the cause [of action]’’
(internal quotation marks omitted)). Section 122 of the
Restatement (Second) eschews ‘‘unthinking adherence’’
to formal labels such as ‘‘ ‘procedural’ ’’ and ‘‘ ‘substan-
tive,’ ’’ and, instead, suggests that courts ‘‘face directly the
question whether the forum’s rule should be applied.’’
1 Restatement (Second), supra, § 122, comment (b), p.
352. To determine whether the forum’s rule should be
applied to rules that ‘‘fall into a gray area between issues
relating primarily to judicial administration and those
concerned primarily with the rights and liabilities of the
parties,’’ § 122 instructs courts to consider the following
factors: (1) ‘‘whether the issue is one to which the
parties are likely to have given thought in the course
of entering into the transaction’’; (2) ‘‘whether the issue
is one [the] resolution [of which] would be likely to
affect the ultimate result of the case’’; (3) ‘‘whether
the precedents have tended consistently to classify the
issue as ‘procedural’ or ‘substantive’ for [choice of law]
purposes’’; and (4) ‘‘whether an effort to apply the rules
of the judicial administration of another state would
impose an undue burden [on] the forum.’’ Id., comment
(a), pp. 351–52.
With these principles in mind, we turn to New York’s
plenary action rule and the principles on which it is
based. Unlike Connecticut courts, New York courts do
not review the provisions of a separation agreement to
ensure that the agreement is fair and equitable to the
parties prior to rendering a final judgment of divorce.
Compare N.Y. Dom. Rel. Law § 236 (3) (McKinney Cum.
Supp. 2021) (‘‘[a]n agreement by the parties, made
before or during the marriage, shall be valid and
enforceable in a matrimonial action if such agreement
is in writing, subscribed by the parties, and acknowl-
edged or proven in the manner required to entitle a
deed to be recorded’’), with General Statutes § 46b-66
(a) (court presented with separation agreement ‘‘shall
inquire into the financial resources and actual needs
of the parties . . . in order to determine whether the
agreement of the parties is fair and equitable under all
the circumstances’’). Whereas, in Connecticut, separa-
tion agreements typically are merged into the final judg-
ment of divorce after they have been approved by the
court, in New York, separation agreements typically are
not merged but, instead, survive the judgment.
One reason why separation agreements typically are
not merged into the final judgment of divorce in New
York is to avoid placing the imprimatur of the court on
the agreement and ‘‘misleading spouses into believing
[that] such [agreements have been determined] to be
valid . . . .’’ (Citation omitted.) Jaslow v. Jaslow, 75
App. Div. 2d 876, 878, 427 N.Y.S.2d 292 (1980). The
principal reason for this practice, however, is to pre-
serve the contractual rights of the parties to enforce
the separation agreement in a separate civil action. An
unmerged ‘‘separation agreement continues in effect as
a separate and independent contractual arrangement
between the parties . . . . Thus, a change in the divorce
decree cannot modify the separation agreement absent
a clear expression by the parties of such an intent.’’
(Citations omitted.) Kleila v. Kleila, 50 N.Y.2d 277, 283,
406 N.E.2d 753, 428 N.Y.S.2d 896 (1980). The unmerged
separation agreement ‘‘survives as a separate contract
to which the parties are bound. Consequently, [although]
a judgment of divorce can be attacked [by a postjudg-
ment motion], the separation agreement will remain
unimpeached unless challenged in a plenary action
. . . .’’ (Citation omitted.) Lambert v. Lambert, 142
App. Div. 2d 557, 558, 530 N.Y.S.2d 223 (1988); see Fine
v. Fine, 191 App. Div. 2d 410, 411, 594 N.Y.S.2d 309(1993) (‘‘The stipulation of settlement is an independent
contract binding on the parties . . . and the court may
not impair the plaintiff’s contractual rights under the
agreement by modifying the divorce judgment . . . .
The proper manner for the defendant to challenge the
terms of the stipulation of settlement is in a plenary
action . . . .’’ (Citations omitted.)). In a plenary con-
tract action, the separation agreement is ‘‘subject to
principles of contract construction and interpretation’’;
(internal quotation marks omitted) In re Blonder v.
Blonder, 171 App. Div. 3d 1043, 1045, 98 N.Y.S.3d 329(2019); instead of the principles governing divorce
actions. See N.Y. Dom. Rel. Law § 236 (3) (McKinney
Cum. Supp. 2021); see also Fine v. Fine, 26 App. Div.
3d 406, 407, 810 N.Y.S.2d 211 (2006) (‘‘[a] plenary action
to vacate a stipulation of settlement on the basis of
fraud . . . is not a matrimonial action’’ under New
York Domestic Relations Law). Stated simply, the par-
ties to an unmerged separation agreement have ‘‘vested
contractual rights’’ that generally cannot be disturbed
by a postjudgment motion in a divorce action.7 Kleila
v. Kleila, supra, 284.
The plenary action rule is predicated, at least in signif-
icant part, on New York’s strong public interest in the
finality of judgments; see, e.g., Teitelbaum Holdings,
Ltd. v. Gold, 48 N.Y.2d 51, 55–56, 396 N.E.2d 1029, 421
N.Y.S.2d 556 (1979); and in encouraging parties to resolve
their own interests through contractual arrangements.
See, e.g., Bloomfield v. Bloomfield, 97 N.Y.2d 188, 193,
764 N.E.2d 950, 738 N.Y.S.2d 650 (2001) (‘‘there is a
strong public policy favoring individuals ordering and
deciding their own interests through contractual arrange-
ments’’ (internal quotation marks omitted)); Christian
v. Christian, 42 N.Y.2d 63, 71–72, 365 N.E.2d 849, 396
N.Y.S.2d 817 (1977) (‘‘Generally, separation agreements
[that] are regular on their face are binding on the parties,
unless and until they are put aside . . . . Judicial
review is to be exercised circumspectly, sparingly and
with a persisting view to the encouragement of parties
[to settle] their own differences in connection with the
negotiation of property settlement provisions.’’ (Cita-
tions omitted.)); Galusha v. Galusha, 116 N.Y. 635, 645–
46, 22 N.E. 1114 (1889) (‘‘the separation agreement was
not affected by the decree granting an absolute divorce,’’
in part because ‘‘[t]he law looks favorably [on] and
encourages settlements made outside of [the] courts
between parties to a controversy’’). As the New York
Court of Appeals has observed, ‘‘[t]o rewrite a judgment
of divorce [that] has been relied on by both parties . . .
would defeat the [parties’] reasonable expectation that
the judgment was valid as [rendered], and would sub-
vert the policy of upholding settled domestic relations
that underlies the doctrine of equitable estoppel in
divorce cases . . . .’’ (Citations omitted.) Rainbow v.
Swisher, 72 N.Y.2d 106, 110–111, 527 N.E.2d 258, 531
N.Y.S.2d 775 (1988). Because ‘‘the provisions of a
divorce judgment are considered final and binding on
the parties . . . absent unusual circumstances or
explicit statutory authorization’’; (internal quotation
marks omitted) Sass v. Sass, 276 App. Div. 2d 42, 46,
716 N.Y.S.2d 686 (2000); see footnote 7 of this opinion;
an unmerged separation agreement cannot be
rescinded, vacated, or set aside by a postjudgment
motion in a divorce action.
Application of the four factors enumerated in com-
ment (a) to § 122 of the Restatement (Second) leads
us to conclude that New York’s plenary action rule is
so interwoven with the plaintiff’s cause of action as
to be deemed substantive. To begin, the unequivocal
language employed by the parties in their separation
agreement adopted in plain and forceful terms the very
essence of New York’s plenary action rule. In addition
to the choice of law provision’s adoption of New York
law for ‘‘[a]ll matters affecting the execution, interpreta-
tion, performance and enforcement of [the separation]
[a]greement and the rights of the parties hereto,’’ the
separation agreement expressly provides that it ‘‘shall
not be invalidated or otherwise affected by any decree
or judgment of separation or divorce made by any
court in any action which may presently exist or may
hereafter be instituted by either party against the other
for a separation or divorce,’’ and adds—if that were
not clear enough—that ‘‘the obligations and covenants
of this [a]greement shall survive any decree or judg-
ment of separation or divorce and shall not merge
therein, and this [a]greement may be enforced inde-
pendently of such decree or judgment.’’ (Emphasis
added.) The separation agreement further provides that
‘‘no judgment, order or decree in any action for divorce
or separation, whether brought in the [s]tate of New
York, or in any other state or country having jurisdiction
[over] the parties hereto, shall make any provisions
for alimony or child support or affect the property
rights of either party in a manner inconsistent with
the provisions of this [a]greement . . . .’’ (Emphasis
added.)
The fact that the parties explicitly incorporated New
York’s plenary action rule into their separation agree-
ment by providing that their contractual rights could
not be invalidated or affected by any final judgment of
divorce ‘‘is a weighty reason for applying that law rather
than the local law of the forum . . . .’’ 1 Restatement
(Second), supra, § 122, comment (a), p. 351; see Boyd
Rosene & Associates, Inc. v. Kansas Municipal Gas
Agency, 174 F.3d 1115, 1126 (10th Cir. 1999) (‘‘[b]ecause
parties are empowered to make contractual [choice of
law] provisions, their expectations about the applicabil-
ity of those [choice of law] provisions are a significant
factor in the determination of whether an issue is sub-
stantive or procedural for [choice of law] purposes’’).
The remaining Restatement (Second) factors also
weigh in favor of our conclusion that New York’s ple-
nary action rule is substantive under these circum-
stances. Application of New York’s plenary action rule
will affect the ultimate substantive outcome of this case
because, as the Appellate Court correctly determined,
the parties ‘‘have contractual rights that . . . cannot
be undone by modifying the judgment of dissolution.’’
Gershon v. Back, supra, 201 Conn. App. 251–52; see,
e.g., Goldman v. Goldman, 282 N.Y. 296, 305, 26 N.E.2d
265 (1940) (modification of divorce judgment ‘‘[did] not
relieve the defendant of any contractual obligation’’
under separation agreement, and ‘‘the plaintiff [could]
still resort to the usual remedies for breach of a contrac-
tual obligation’’). Additionally, to our knowledge, there
is no settled precedent classifying New York’s plenary
action rule as procedural or substantive for choice of
law purposes; the parties, at least, have not brought
any such precedent to our attention, and we have found
nothing of assistance in this regard. Nor will the applica-
tion of the rule impose an undue burden on the courts
of this state. Indeed, Connecticut courts have recog-
nized that separation agreements are contracts that may
be litigated independently of the divorce judgment in
a civil contract action. See, e.g., Friedlander v. Fried-
lander, 5 Conn. App. 1, 4, 496 A.2d 964 (‘‘a separation
agreement is enforceable in a civil suit on the con-
tract’’), cert. denied, 197 Conn. 812, 499 A.2d 58 (1985);
Freeman v. Freeman, Superior Court, judicial district
of Stamford-Norwalk, Docket No. CV-XX-XXXXXXX-S
(April 6, 2010) (49 Conn. L. Rptr. 578, 580) (‘‘multiple
Superior Court judges have determined that it is appro-
priate to litigate a breach of a separation agreement in
a civil action for breach of contract’’ (internal quotation
marks omitted)); Lord v. Lord, Superior Court, judicial
district of Fairfield, Docket No. CV-XX-XXXXXXX (August
20, 2002) (33 Conn. L. Rptr. 88, 89) (separation agree-
ments are ‘‘contracts . . . enforced by actions brought
[on] the contracts themselves and the remedies are no
other or different than the remedies provided by law
for the breach of any other contract’’ (internal quotation
marks omitted)). We therefore conclude that New York’s
plenary action rule is substantive and that the Appellate
Court correctly determined that the plaintiff’s motion
to open and vacate the divorce judgment should have
been denied.
The plaintiff contends that New York’s plenary action
rule is procedural under Baxter v. Sturm, Ruger & Co.,
230 Conn. 335, 644 A.2d 1297 (1994), and its progeny
because the right to challenge a contract on the basis
of fraud existed at common law.8 This argument miscon-
strues our reasoning in the Baxter line of cases. In
Baxter, we addressed whether Connecticut law treats
another state’s statute of repose as substantive or proce-
dural for choice of law purposes. Id., 336. We deter-
mined that a statute of repose, like a statute of limita-
tions, ‘‘is considered one of the congeries of elements
necessary to establish the right, and therefore charac-
terized as substantive, only when it applies to a new
right created by statute. . . . In such circumstances,
[t]he time within which the suit must be brought oper-
ates as a limitation of the liability itself as created [by
the statute], and not of the remedy alone.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) Id., 340. ‘‘If the right existed at common law,
then the statute of repose is properly characterized as
procedural because it functions only as a qualification
on the remedy to enforce the preexisting right. If, how-
ever, the right is newly created by the statute, then the
statute of repose is properly characterized as substan-
tive because the period of repose is so integral a part
of the cause of action as to warrant saying that it quali-
fie[s] the right.’’ (Internal quotation marks omitted.) Id.,
347; see Reclaimant Corp. v. Deutsch, supra, 332 Conn.
608 (‘‘[u]nder Connecticut’s choice of law rules, the
dispositive inquiry is not whether the statute at issue
properly is characterized as a statute of repose or a
statute of limitations, but whether the nature of the
underlying right that forms the basis of the lawsuit
existed at common law’’ (internal quotation marks omit-
ted)).
Baxter and its progeny are inapposite for the simple
reason that New York’s plenary action rule is not a
statute of limitations or a statute of repose, and the
distinction employed to distinguish between procedure
and substance in that context has no application in the
present case. In fact, the plenary action rule is not a
creature of statute at all but, instead, an entrenched
feature of New York’s common law for the past 100
years. See Yonkers Fur Dressing Co. v. Royal Ins. Co.,
Ltd., 247 N.Y. 435, 446, 160 N.E. 778 (1928) (‘‘Defendants
may be able in an independent suit to upset the settle-
ment for reasons that would invalidate a contract, such
as fraud or [overreaching]. But when a compromise
results in the termination of an action and the execution
of a new agreement giving effect to the settlement, it
cannot be undone in the discretion of the court, on
motion in the action and on conflicting affidavits rais-
ing anew the same dispute once settled . . . .’’ (Empha-
sis added.)). The plenary action rule draws ‘‘its justifica-
tion from the practical notion that there must ultimately
be an end to litigation’’ and requires ‘‘a plenary suit
. . . [in which] the stipulation [of settlement] relates to
an action [that] has previously terminated.’’ Teitelbaum
Holdings, Ltd. v. Gold, supra, 48 N.Y.2d 55. It is properly
characterized as a limitation on the right to challenge
a separation agreement that is incorporated but not
merged into a final judgment of divorce, rather than a
mere limitation on the remedy, particularly because the
parties explicitly incorporated the plenary action rule
into the terms of their separation agreement and, by
doing so, bargained for vested contractual rights that
survive the final judgment of divorce.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
The defendant died on December 18, 2020, and the coexecutors of his
estate, Adam Cotumaccio and Pamela Chupka, were substituted as defen-
dants. All references to the defendant in this opinion are to Back.
2
General Statutes § 46b-71 provides: ‘‘(a) Any party to an action in which
a foreign matrimonial judgment has been rendered, 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.
‘‘(b) Such foreign matrimonial judgment shall become a judgment of the
court of this state where it is filed and shall be enforced and otherwise
treated in the same manner as a judgment of a court in this state; provided
such foreign matrimonial judgment does not contravene the public policy
of the state of Connecticut. A foreign matrimonial judgment so filed shall
have the same effect and may be enforced or satisfied in the same manner
as any like judgment of a court of this state and is subject to the same
procedures for modifying, altering, amending, vacating, setting aside, staying
or suspending said judgment as a judgment of a court of this state; provided,
in modifying, altering, amending, setting aside, vacating, staying or sus-
pending any such foreign matrimonial judgment in this state the substantive
law of the foreign jurisdiction shall be controlling.’’
3
Under the final judgment of divorce, ‘‘[e]ach party has a right to seek a
modification of the child support order upon a showing of: (i) a substantial
change in circumstances; or (ii) that three years have passed since the order
was entered, last modified or adjusted; or (iii) there has been a change in
either party’s gross income by [15] percent or more since the order was
entered, last modified, or adjusted; however, if the parties have specifically
opted out [of] subparagraph (ii) or (iii) of this paragraph in a validly executed
agreement or stipulation, then that basis to seek modification does not
apply.’’ (Emphasis omitted.) See N.Y. Dom. Rel. Law § 236 (9) (b) (2) (i)
(McKinney Cum. Supp. 2021) (‘‘[t]he court may modify an order of child
support, including an order incorporating without merging an agreement
or stipulation of the parties, upon a showing of a substantial change in
circumstances’’); N.Y. Dom. Rel. Law § 236 (9) (b) (2) (ii) (A) and (B)
(McKinney Cum. Supp. 2021) (‘‘[i]n addition, unless the parties have specifi-
cally opted out of the following provisions in a validly executed agreement
or stipulation entered into between the parties, the court may modify an
order of child support where . . . three years have passed since the order
was entered, last modified or adjusted; or . . . there has been a change in
either party’s gross income by fifteen percent or more since the order was
entered, last modified or adjusted’’). In its memorandum of decision on the
plaintiff’s motion for modification, the trial court found that the parties
clearly had not opted out of subparagraphs (ii) or (iii) in the separation
agreement.
4
The defendant’s attached 2010 income information included his W-2 form
from Flavormatic, which listed his wages and earnings as $150,000.
5
The plaintiff also claimed that the trial court ‘‘(1) improperly addressed
the merits of the motion to open after determining that it lacked subject
matter jurisdiction, (2) abused its discretion by failing to grant her motion
for a continuance after her counsel disclosed that she intended to withdraw
her appearance, and (3) erred in finding that the plaintiff had failed to
demonstrate probable cause for postjudgment discovery under Oneglia . . .
or comparable New York law.’’ Gershon v. Back, supra, 201 Conn. App. 227n.1. The Appellate Court did not address the plaintiff’s additional claims in
light of its conclusion that ‘‘the plaintiff was required to raise her claims
with respect to the parties’ [separation agreement] by means of a plenary
action.’’ Id.6
The defendant also claims that this certified appeal is moot because the
trial court’s judgment may be affirmed on the alternative ground that the
plaintiff ratified the separation agreement and, therefore, is estopped from
challenging it on the basis of fraud. ‘‘Undoubtedly, if there exists an unchal-
lenged, independent ground to support a decision, an appeal from that
decision would be moot, as this court could not afford practical relief even
if the appellant were to prevail on the issue raised on appeal.’’ Hartford v.
CBV Parking Hartford, LLC, 330 Conn. 200, 210, 192 A.3d 406 (2018). To
render an appeal moot, however, the unchallenged ground must be indepen-
dent of the issue on appeal, meaning that resolution of the issue on appeal
would not and could not affect a separate unchallenged basis on which to
affirm the underlying judgment. See id., 211–12 (appeal was not moot
because trial court’s factual finding regarding valuation of property was
not independent of issue on appeal). In the present case, the trial court’s
resolution of the ratification issue was not independent of its resolution of
the choice of law question because the trial court’s application of New York
law to the plaintiff’s request for postjudgment discovery led it to conclude
that the plaintiff had produced insufficient evidence of fraud and, therefore,
was estopped from challenging the agreement. See, e.g., Brennan v. Bren-
nan, 305 App. Div. 2d 524, 525, 759 N.Y.S.2d 744 (2003) (concluding that
separation agreement had been ratified in absence of evidence of fraud);
Wilson v. Neppell, 253 App. Div. 2d 493, 494, 677 N.Y.S.2d 144 (same), appeal
denied, 92 N.Y.2d 816, 706 N.E.2d 747, 683 N.Y.S.2d 759 (1998); Shalmoni
v. Shalmoni, 141 App. Div. 2d 628, 629, 529 N.Y.S.2d 538 (same), appeal
dismissed, 73 N.Y.2d 851, 534 N.E.2d 333, 537 N.Y.S.2d 495 (1988); see also
Ronson v. Ronson, 58 App. Div. 2d 987, 988, 396 N.Y.S.2d 939 (1977) (‘‘In
order to vitiate the support agreement, [a party] is required to show facts
in evidentiary form. Conclusory assertions of fraud are insufficient . . . .’’
(Citations omitted.)). Because the choice of law and ratification issues are
related, we conclude that the plaintiff’s appeal is not moot.
7
There are some exceptions to the plenary action rule, none of which is
applicable to the present appeal. See, e.g., N.Y. Dom. Rel. Law § 236 (9) (b)
(1) (McKinney Cum. Supp. 2021) (‘‘[w]here, after the effective date of this
part, an agreement remains in force, no modification of an order or judgment
incorporating the terms of said agreement shall be made as to maintenance
without a showing of extreme hardship on either party, in which event
the judgment or order as modified shall supersede the terms of the prior
agreement and judgment for such period of time and under such circum-
stances as the court determines’’); N.Y. Gen. Oblig. Law § 5-311 (McKinney
2022) (‘‘Except as provided in section two hundred thirty-six of the domestic
relations law, a husband and wife cannot contract to alter or dissolve the
marriage or to relieve either of his or her liability to support the other in
such a manner that he or she will become incapable of self-support and
therefore is likely to become a public charge. An agreement, heretofore or
hereafter made between a husband and wife, shall not be considered a
contract to alter or dissolve the marriage unless it contains an express
provision requiring the dissolution of the marriage or provides for the pro-
curement of grounds of divorce.’’); N.Y. Jud. Ct. Acts § 463 (McKinney 2008)
(‘‘[a] separation agreement does not preclude the filing of a petition and
the making of an order under section four hundred forty-five of this article
for support of a spouse who is likely to become in need of public assistance
or care’’); see also footnote 3 of this opinion.
8
The plaintiff also contends that the plenary action rule is procedural
because the failure to commence a plenary action is not always treated as
a fatal defect in New York. In support of this contention, the plaintiff relies
on cases from the Appellate Division of the New York Supreme Court that
recognized the plenary action rule but, in the interest of judicial economy,
nonetheless addressed the merits of a postjudgment motion challenging an
unmerged separation agreement when the lower court had conducted ‘‘a
full hearing tantamount to a plenary trial . . . .’’ Gaines v. Gaines, 188 App.
Div. 2d 1048, 1048, 592 N.Y.S.2d 204 (1992); accord Verna v. Verna, 134
App. Div. 3d 1438, 1438, 23 N.Y.S.3d 500 (2015); Dunham v. Dunham, 214
App. Div. 2d 961, 961, 626 N.Y.S.2d 932 (1995); Culp v. Culp, 117 App. Div.
2d 700, 702, 498 N.Y.S.2d 846 (1986). The plaintiff argues that these cases
stand for the proposition that the plenary action rule is procedural because,
‘‘[if] the rule [was] substantive, the court would have [had] no authority’’
to adjudicate the postjudgment motion. We reject the plaintiff’s claim
because there is a fundamental distinction between the authority of a court
to adjudicate a cause of action and the court’s determination of the substan-
tive law governing that cause of action. See Lacks v. Lacks, 41 N.Y.2d 71,
74, 77, 359 N.E.2d 384, 390 N.Y.S.2d 875 (1976). As the New York Court of
Appeals explained in Lacks, the ‘‘[subject matter] jurisdiction-competence’’
of the courts should not be confused with the ‘‘substantive elements of a
cause for relief’’ because ‘‘[t]o do so would be to undermine significantly
the doctrine of res judicata, and to eliminate the certainty and finality in
the law and in litigation which the doctrine is designed to protect.’’ Id., 77.
Thus, the nonjurisdictional nature of the plenary action rule does not resolve
the issue of whether the rule is substantive or procedural for choice of
law purposes.