CATHERINE REVILLE v. JOHN REVILLE
(SC 18452)
Supreme Court of Connecticut
Argued February 19, 2013—officially released July 8, 2014
Rоgers, C. J., and Norcott, Palmer, Zarella, Eveleigh and McDonald, Js.*
* The listing of justices reflects their seniority status on this court as of the date of oral argument.
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The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the
The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the
Steven D. Ecker, with whom was M. Caitlin S. Anderson, for the appellant (plaintiff).
Opinion
ROGERS, C. J. This case concerns a spouse‘s duty to disclose an accrued but unvested pension during dissolution proceedings. The plaintiff, Catherine Reville, appeals1 from the judgment of the trial court denying her motion to open a 2001 judgment dissolving her marriage to the defendant, John Reville, on the basis of fraud. The plaintiff alleged that the defendant committed fraud during predissolution settlement negotiations by failing to disclose an accrued but unvested pension benefit, either on his financial affidavits or otherwise. After finding, inter alia, that the defendant had disclosed the existence of the pension to the plaintiff orally, both during the parties’ marriage and during settlement negotiations, the trial court denied the plaintiff‘s motion to open. The plaintiff claims on appeal that the trial court improperly: (1) held that the pension, at the time the parties’ marriage was dissolved, definitively was not “property” subject to equitable distribution pursuant to General Statutes (Rev. to 2001) § 46b-81;2 (2) refused to consider evidence of the pension‘s value, which undercut the court‘s findings regarding disclosure; and (3) required the plaintiff to bear the burden of proving fraud under the circumstances. We agree with the plaintiff‘s first two claims and, accordingly, reverse the judgment of the trial court.
The following facts, which either are undisputed or were found by the trial court, and procedural history are relevant to the appeal. On May 25, 2001, the trial court, Hon. Dennis F. Harrigan, judge trial referee, rendered judgment dissolving the parties’ fourteen year marriage, and it incorporated into the judgment orders of alimony, child support and an equitable distribution of the marital property consistent with the parties’ written separation agreement. Pursuant to that agreement, the parties had endeavored to split their assets equally. The plaintiff filed an amended postjudgment motion to open and set aside the dissolution judgment, dated September 15, 2005, claiming that the court should revisit the issue of property distribution because the defendant, a partner with PricewaterhouseCoopers LLP, had failed to disclose on all four of his financial affidavits the existence of an
around the time of the parties’ divorce, “property or assets” required to be disclosed on financial affidavits in dissolution actions and subject to distribution pursuant to
The trial court, Shay, J.,4 decided, sua sponte, to bifurcate the proceedings on the plaintiff‘s motion to open the judgment into two phases. In the first phase, the сourt endeavored to determine whether, pursuant to
During the first phase of the proceedings on the plaintiff‘s motion to open, the trial court heard testimony about the pension from the defendant and William Miller, an actuarial and pension expert retained by the plaintiff. The deposition of Roger Hindman, a partner in PricewaterhouseCoopers LLP, who oversaw benefit programs nationally for staff and partners of that firm, was read into the record. The evidence presented established the existence and nature of the pension generally, and the defendant‘s specific interest therein.
At the time of the dissolution judgment, the defendant was forty-five years old and had been employed by PricewaterhouseCoopers LLP, or one if its predecessors, for approximately twenty years, and he had been a partner in the firm for nearly one decade.6 When the defendant became
The trial court found that the pension is unqualified, in the sense that it is not covered by the Employment Retirement Income Security Act of 1974,
merger partnership agreement, preexisting partners’ benefits, including the defendant‘s pension, were protected. The pension benefit is calculated using a formula that takes into account a partner‘s years of service and a figure representing 30 percent of the average pay in his or her five highest earning years, but it is subject to a cap pursuant to which total pension payments to retired partners cannot exceed 15 percent of the firm‘s current profits. In addition, the pension is subject to forfeiture if a retired partner violates certain conditions such as a noncompete requirement. The defendant testified that he was unaware of any retired partner not receiving the pension benefit, provided he or she complied with those conditions.
Although all partners were aware of the pension and its basic terms, there was no written document memorializing those terms until April, 2003. In April, 2000, however, a personalized, electronic projection report was made available to each partner, including the defendant, through his or her work computer. That report estimated the present and future values of the available benefit plans, including the pension, by employing certain assumptions as to the rate of return, life expectancy and earnings growth. If a partner chose, he or she could enter alternative assumptions and change the projections. Employing the default assumptions, which included a retirement age of sixty, the projection report, as of December 31, 1999, estimated the present value of the defendant‘s projected retirement income stream to be $3,839,117.
After the first phase of the proceedings, the trial court made findings that included the foregoing facts and concluded that, in May, 2001, at the time of the decree dissolving the parties’ marriage, the defendant‘s pension was not property subject to distribution pursuant to
The trial court then proceeded to the second phase of the proceedings on the motion to open the judgment.
During that phase, the trial court ruled that, in light of its earlier determination that the pension was not property, any evidence as to its value was not relevant or material. Accordingly, the trial court refused to admit such evidence when it was offered by the plaintiff.
During the second phase, there was substantial testimony from both parties as well as individuals who had represented or assisted them during the dissolution proceedings. The plaintiff testified that she was unaware of the pension during the parties’ marriage, and further, that it was not disclosed to her during the extensive settlement negotiations attendant to the dissolution proceedings. The plaintiff‘s counsel during the dissolution proceedings, Anthony Piazza, confirmed the plaintiff‘s account of nondisclosure. The plaintiff‘s expert witness, Mark Harrison, an attorney and a certified public accountant, was familiar with the pension, but could not recall whether he had heard about it during the parties’ case or when he was engaged in a different, later dissolution action involving another PricewaterhouseCoopers LLP partner.
The defendant testified that he and the plaintiff had discussed the pension during their marriage, and that he and his counsel disclosed the pension to the plaintiff and her representatives several times during settlement negotiations. According to the defendant, prior to the dissolution judgment, he had not accessed the April, 2000 electronic projection report made available
Although the settlement negotiations preceding the dissolution of the parties’ marriage had lasted sixteen months and produced more than twenty drafts of their settlement agreement, the defendant did not produce any written or documentary evidence demonstrating disclosure of the pension to the plaintiff. Additionally, Burdett did not have any notes or records indicating that the pension had been discussed orally with the plaintiff or her representatives.
After considering the conflicting testimony, the trial court found that the defendant‘s version of events was more credible than the plaintiff‘s version. The court found it implausible that the pension had not been discussed during the parties’ marriage, and concluded that
the plaintiff “knew about the [pension] at the time of the dissolution of [the] marriage in 2001, and that she now wishes to change the bargain she reached with the advice of counsel and her expert.” According to the court, although the defendant did not disclose the pension on his financial affidavits, he did so during settlement negotiations, and the plaintiff and her counsel knew about it. The court held, therefore, that the plaintiff had not proven her claim of fraud.
The trial court reiterated its view that, although the pension did not qualify as distributable property, the defendant still should have disclosed it on his affidavit to enable Judge Harrigan, the dissolution court, to determine whether the settlement was fair and equitable. It concluded, however, that the defendant‘s nondisclosure to the court “was not fraudulent, and in any event, would not likely have changed the outcome of the court‘s finding of fairness or produced a different result.” Consequently, the trial court denied the plaintiff‘s amended motion to open the judgment.10 This appeal followed.
The plaintiff claims that the trial court improperly concluded that, in May, 2001, the defendant‘s pension was not property within the meaning of
The defendant contends in response that the trial court correctly concluded that the pension was not distributable property. He argues additionally that the court properly denied the plaintiff‘s motion to open the judgment because the plaintiff failed to prove fraud. According to the defendant, the court‘s finding that the pension was disclosed orally to the plaintiff is supported by the testimonial evidence аnd was fatal to the plaintiff‘s motion. The defendant claims further that, although the pension‘s value was irrelevant, there nevertheless was evidence in this regard before the court. Finally, the defendant contends, the court‘s allocation of the burden of proof was not in error.
We begin with the general standard of review and an overview of the legal framework that governed the trial court proceedings. “Our review of a court‘s denial of a motion to open [based on fraud] is well settled. We do not undertake a plenary review of the merits of a deci-
sion of the trial court to grant or to deny a motion to open a judgment. . . . In an appeal from a denial of a motion to open a judgment, our review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion. . . . In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Weinstein v. Weinstein, 275 Conn. 671, 685, 882 A.2d 53 (2005).
Pursuant to
“Fraud consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed. . . . The 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. . . . A marital judgment based upon a stipulation may be opened if the stipulation, and thus the judgment, was obtained by fraud.” (Internal quotation marks omitted.) Weinstein v. Weinstein, supra, 275 Conn. 685.
“Fraud by nondisclosure, which expands on the first three of [the] four elements [of fraud], involves the failure to make a full and fair disclosure of known facts connected with a matter about which a party has assumed to speak, under circumstances in which there is a duty to speak. . . . A lack of full and fair disclosure of such facts must be accompanied by an intent or expectation that the other party will make or will continue in a mistake, in order to induce that other party to act to her detriment. . . . In a marital dissolution case, the requirement of a duty to speak is imposed by
“There are three limitations on a court‘s ability to grant relief from a dissolution judgment secured by fraud: (1) there must have been no laches or unreason-
able delay by the injured party after the fraud was discovered; (2) there must be clear proof of the fraud; and (3) there is a [reasonable probability]11 that the result of the new trial will be different.” (Footnote added; internal quotation marks omitted.) Weinstein v. Weinstein, supra, 275 Conn. 685.
“To determine whether there [is] proof of fraud, [a court should] consider the evidence through the lens of our well settled policy regarding full and frank disclosure in marital dissolution actions. Our [rules of practice have] long required that at the time a dissolution of marriage, legal separation or annulment аction is claimed for a hearing, the moving party shall file a sworn statement . . . of current income, expenses, assets and liabilities, and pertinent records of employment, gross earnings, gross wages and all other income. . . . The opposing party is required to file a similar affidavit at least three days before the date of the hearing . . . .
“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 . . . the [rules of practice], 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. . . .
“Moreover, in Monroe v. Monroe, [177 Conn. 173, 182, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979)], we referred to the requirement of full and frank disclosure between attorney and marital client. [L]awyers who represent clients in matrimonial dissolutions 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. Id., 183. In Baker v. Baker, 187 Conn. 315, 322, 445 A.2d 912 (1982), we imposed this requirement of honest disclosure between the litigating parties and the court. It is a logical extension of those precedents to require such full and frank disclosure as well between the marital litigants themselves. . . .
“We have recognized, furthermore, in the context of an action based on fraud, that the special relationship betweеn fiduciary and beneficiary compels full disclosure by the fiduciary. . . . Although marital parties are not necessarily in the relationship of fiduciary to beneficiary, we believe that no less disclosure is required of such parties when they come
“Finally, the principle of full and frank disclosure
. . . 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 undermine. . . . 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 [forgo] their combat and to settle their dispute privately, secure in the knowledge that they have all the essential information. . . . This principle will, in turn, decrease the need for extensive discovery, 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.” (Internal quotation marks omitted.) Weinstein v. Weinstein, supra, 275 Conn. 686–87.
We now turn to the plaintiff‘s claims. Additional facts and procedural history will be provided when necessary.
I
The plaintiff claims first that the trial court improperly held that the defendant‘s pension, at the time of the May, 2001 dissolution judgment, was not property subject to distribution under
The defendant contends in response that the trial court correctly held that an unvested pension was not distributable property prior to this court‘s decision in Bender. According to the defendant, the Appellate Court‘s decision in that case, Bender v. Bender, 60 Conn. App. 252, 758 A.2d 890 (2000), aff‘d, 258 Conn. 733, 785 A.2d 197 (2001), which predated the dissolution of the parties’ marriage, did not address the issue, and this
court‘s subsequent decision represented a substantial and unexpected change in our equitable distribution jurisprudence that should not apply retroactively to May, 2001.
Although we disagree that our decision in Bender effected a substantial and surprising change to the law of marital property distribution, we nevertheless agree with the defendant that the decision does not apply retroactively to cases that were not pending at the time the decision was rendered. We disagree, however, with the trial court‘s determination that the law preexisting Bender established definitively that the defendant‘s pension was not distributable marital property in May, 2001,
We first note the applicable standard of review. As a general matter, the question of whether a particular retirement benefit constitutes distributable property pursuant to
The following additional procedural history is relevant. On December 11, 2007, during prehearing proceedings, the trial court, sua sponte, directed the parties to prepare for a bifurcated hearing on the plaintiff‘s claim
of fraud. The court explained that “first and foremost . . . we have to determine whether or not the [defendant‘s pension] is in fact a marital asset. Second, we have to make a determination if it is a marital asset, was it in fact disclosed. If it was not disclosed then we have to determine whether or not that nondisclosure was fraudulent. . . . [T]hat‘s my . . . analysis of this.”
The trial court then mentioned this court‘s decision in Bender, noted that it was issued months after the dissolution judgment,12 and opined that it represented a change in the law. The trial court stated, therefore, that with the parties’ input, it would have to decide whether the pension was distributable property by applying Bender, or “apply[ing] pre-Bender law because this is a 2001 dissolution . . . .” According to the trial court, “the fundamental question is was this particular asset a marital asset in May of 2001 . . . because if it‘s not marital property . . . you just don‘t go any further. There‘s no fraud. If it‘s not marital property and [if] it wasn‘t disclosed, it doesn‘t matter.”13
The trial court then reiterated its view that the “seminal question” in this case was whether the defendant‘s pension was “marital property in May of 2001.” The court thus directed the parties to begin the hearing on the plaintiff‘s motion to open by limiting the evidence to that particular question, and it explained again that it would address the issue of disclosure only if the question were answered in the affirmative. Thereafter, a four day hearing was held. Consistent with the trial court‘s directive, the hearing was devoted to establishing the features of the defendant‘s pension, the contingencies to which it was subject and the way it was treated during, and affected by, the PricewaterhouseCoopers LLP merger. See footnote 6 of this opinion.
The plaintiff, in her posthearing brief to the court, claimed, inter alia, that the Appellate Court‘s decision in Bender, which had affirmed the distribution of an unvested pension plan, predated the dissolution judgment in this action and, therefore, required the defendant to disclose his pension on his financial affidavit. The plaintiff contended further that earlier jurisprudence also established such an obligation. The defen-
dant treated this court‘s decision in Bender as applicable, but argued that his unvested pension was factually distinguishable from the one at issue in that case.
In its memorandum of decision addressing whether the defendant‘s pension was property, the trial court, after making extensive findings as to the particulars of the pension, provided a detailed history of Connecticut‘s equitable distribution jurisprudence. It then concluded that the Appellate Court‘s decision in Bender v. Bender, supra, 60 Conn. App. 252, was not pertinent. According to the trial court, because the focus of the Appellate Court‘s decision was on whether the unvested pension at issue had been properly valued and distributed, and the parties to that case did not dispute that the pension was distributable property, the Appellate Court did not decide whether
In the final paragraph of its twenty-four page memorandum of decision, the trial court concluded further, in direct contradiction to its previous explanations of the reasons for a bifurcated hearing, that the pension, although not property, nevertheless needed to be disclosed. Specifically, the court now recognized, the dissolution court should have known about the pension when determining whether the parties’ settlement was fair and when crafting its award of alimony. Accordingly, the trial court ordered that the hearing on the plaintiff‘s motion to open should continue. After the second part of the hearing conсluded, the trial court held that no fraud had been proven.
Although several aspects of the trial court‘s reasoning are sound, we nevertheless disagree with both its overall approach to analyzing the issues in this case and its conclusion that the defendant‘s pension definitively was not distributable marital property in May, 2001. First,
we agree with the plaintiff that the real issue in this case was whether the defendant was required to disclose, and did in fact disclose, the pension during the dissolution proceedings, and not whether the pension was definitively established to be distributable property in May, 2001. Second, regardless of whether the pension was established to be distributable property at that time, its existence was a highly relevant consideration both for the plaintiff in deciding whether to agree to the proposed settlement agreement, and for the dissolution court in deciding whether to approve that agreement. Accordingly, nondisclosure, if proven, could have caused the plaintiff to act to her detriment, and full disclosure could have led to a different result in the dissolution action. Third, because the proper treatment of unvested pension benefits in dissolution actions simply was an unsettled matter in May, 2001, the trial court improperly treated it as definitively established instead of acknowledging
To begin, as the trial court eventually realized after conducting a lengthy hearing on the details of the defendant‘s unvested pension, the defendant unquestionably was obligated to disclose that pension to the plaintiff and the dissolution court, regardless of whether this state‘s appellate jurisprudence definitively had confirmed that it was distributable property by May, 2001. Pursuant to the long-standing full and frank disclosure policies and principles we have articulated; see Weinstein v. Weinstein, supra, 275 Conn. 686–87; Billington v. Billington, supra, 220 Conn. 219–22; any retirement or employment benefit potentially receivable by a party to a dissolution action should be disclosed on that party‘s financial affidavit along with all known details as to its value, vesting requirements and current status. In cases in which it is unclear or debatable whether the item at issue qualifies for distribution under
option of appealing the matter to a higher tribunal. In this regard, we agree with the plaintiff that “[f]inancial affidavits in dissolution matters are not intended as a place for gamesmanship or even advocacy,” and that affidavits require “unadulterated honesty because, in the absence of full and frank disclosure, the entire system breaks down.”18
Relatedly, as the trial court correctly recognized after conducting a mini-trial on whether the defendant‘s pension was marital property in May, 2001, even when an item is determined to be nondistributable, its existence nevertheless is a relevant consideration for a court adjudicating a dissolution action when it assesses the fairness of a settlement, distributes other property or fashions other financial orders. See, e.g.,
tively established to be distributable marital property.
Finally, although we further agree with the trial court that this court‘s decision in Bender v. Bender, supra, 258 Conn. 733, would not
The parties’ dissolution action was commenced in 2000, and disposed of in May, 2001. As early as 1981, this court held that a dissolution court properly could consider a party‘s unvested pension benefits when crafting property and alimony orders. Thompson v. Thompson, supra, 183 Conn. 100. In 1995, in Krafick v. Krafick, supra, 234 Conn 798–99 n.23, after concluding that vested pension benefits were distributable property, this court noted that, although the issue of unvested pension benefits was outside the scope of the decision, “the same reasoning has been applied to find that such benefits also . . . constitute property,” and we cited several decisions from other jurisdictions to that effect. In that case and thereafter, in the years immediately preceding the institution of the parties’ dissolution action, this court began to cite a very broad definition of property in marital cases,23 and we expanded
retained jurisdiction over the appeal with an assurance that we would decide the issue expeditiously in the event the trial court, on remand, concluded that the benefits at issue were in fact unvested. Id., 422 n.16, 425 n.19.25
Also around that time, at least one trial court had ordered equitable distribution of a party‘s unvested pension benefits. See Bender v. Bender, Superior Court, judicial district of New Haven, Docket No. FA97-0258814-S (October 8, 1998). In late 2000, the trial court‘s order was upheld by the Appellate Court. Bender v. Bender, supra, 60 Conn. App. 252–53. The focus of the Appellate Court‘s decision was on the valuation and distribution of the pension rather than its classification as marital property,26 because the parties to that case did not dispute that the pension was distributable. Id., 254. The Appellate Court‘s overt acceptance of this underlying premise without, for example, ordering supplemental briefing on the matter,27 suggested, however, that it did not view classification of the pension as property to be especially controversial.28
Consequently, in the present matter, had the defendant‘s pension been listed on his financial affidavit, Judge Harrigan might have followed this growing trend and awarded a portion of the pension to the plaintiff. Moreover, had the disposition of the case been delayed for several months because of the plaintiff‘s unwillingness to settle without receiving a share of the defendant‘s pension or other property in lieu of a share, that judge would have had the benefit of this court‘s decision in Bender v. Bender, supra, 258 Conn. 733, and would have been required to treat the pension as distributable property. Alternatively, had the case been tried and gone to final judgment with the plaintiff having sought, but not received, an interest in the pension, she might have pursued an appeal to challenge that disposition, in which case, in light of our impending decision in Bender, she would have prevailed. Instead of holding a straightforward hearing on the elements of fraud, acknowledging that the law regarding
distribution of unvested pensions was unsettled, considering the foregoing possibilities and determining whether the plaintiff was misled by nondisclosure to her ultimate detriment, the trial court embarked on a lengthy excursion to determine the undeterminable, namely, whether the defendant‘s pension definitively was or was not distributable property in May, 2001.29 This was improper.30
II
The plaintiff‘s next claim concerns the trial court‘s ruling as to the relevance of evidence concerning the value of the defendant‘s pension. The plaintiff contends that the court improperly excluded important evidence in that regard, and refused to consider other relevant evidence. The defendant contends in response that, although there was some evidence of the pension‘s value before the trial court, that evidence was “unnecessary” in the first phase of the proceedings on the motion to open the judgment and “irrelevant” in the second phase. We agree with the plaintiff.
A trial court‘s ruling as to whether evidence is relevant and probative is subject to review for an abuse of discretion. State v. Jackson, 304 Conn. 383, 424, 40 A.3d 290 (2012). “Evidence is relevant if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. Conn. Code Evid. § 4-1. Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is not rendered inadmissible becausе it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, [as] long as it is not prejudicial or merely cumulative.”
(Internal quotation marks omitted.) State v. Bonner, 290 Conn. 468, 496–97, 964 A.2d 73 (2009).
The following additional procedural history is relevant. During the first phase of the proceedings, the trial court directed the parties to focus on the specific, narrow issue of whether the defendant‘s pension qualified as marital property pursuant to
At the conclusion of the first phase of the motion proceedings, the trial court held that the pension was not marital property subject to distribution. Thereafter, during the second phase, conducted approximately nine months later, the court ruled, sua sponte, that at that stage of the trial, any evidence of the value of the pension, whether proffered by either party, was irrelevant and immaterial and would not be admitted. In light of that ruling, the plaintiff made an offer of proof for the record, which included her disclosure of Miller as an expert witness and a report that Miller had prepared33 to value the pension, in which he opined that it had a substantial value, in excess of $1 million.34 The court precluded the proffered evidence, again holding that it was irrelevant and immaterial to the second phase of the proceedings.
After the second phase, the trial court concluded that the plaintiff had not proven fraud, essentially adopting the defendant‘s account of disclosure and discrediting the plaintiff‘s account of nondisclosure. The plaintiff subsequently filed a motion for articulation wherein she requested, inter alia, that the trial court articulate whether it had made any determination as to the value of the defendant‘s pension at the time of the dissolution judgment and, if so, what that value was. Following the trial court‘s denial of the plaintiff‘s motion, this court, upon review, ordered the trial court to provide the requested articulation. In the articulation that followed, the trial court explained that it considered the plaintiff‘s request to be a “red herring” because the court unequivocally had found that the pension was not property at the time of the dissolution judgment. According to the court, “[t]he clearly articulated purpose of the first phase of the trial was not to determine the value of the [pension], rather it was to determine if the [pension] should be construed as a marital asset at the time of the decree dissolving the marriage. This question was answered in the negative.” (Emphasis in original.) Fur-
thermore, the court explained, “[a]ssuming arguendo that [it] was looking to determine the value of the [pension] (which it was not), “there was “no credible evidence as to [the] value of the [pension] as of May 25, 2001, the date of the dissolution of the [parties‘] marriage.” (Emphasis in original.) In this regard, the court noted that the valuation provided by Miller in the first phase of the motion proceedings was only a “‘guesstimate‘” that the court did not find to be credible.
We agree with the plaintiff that the court‘s evidentiary rulings, whereby it refused to admit the most probative evidence of the pension‘s value or to consider and determine that value at all, were improper.35 First, to prevail on her motion to
In connection with her mоtion to open, the plaintiff also needed to show that the outcome of a new trial probably would differ. Weinstein v. Weinstein, supra, 275 Conn. 685. Because of the court imposed bifurcated hearing and the trial court‘s improper conclusion, after the first phase, that the pension definitively was not property in May, 2001, the plaintiff was foreclosed from arguing that, in light of the uncertain state of the law at that time, the pension, if fully disclosed to the dissolution court, may well have been treated as distributable property. In this event, the value of the pension was relevant to the question of whether the plaintiff would have been awarded a substantially different portion of the parties’ total assets. Conversely, even if the plaintiff
could not show that the dissolution court would have treated the pension as distributable property, the value of the pension was relevant to the question of whether that court, had it known of the pension,
For the foregoing reasons, we conclude that the trial court‘s evidentiary rulings, which flowed from its improper analysis regarding whether the pension was distributable рroperty, were improper. Additionally, the court‘s finding that there was no fraud, which flowed from those evidentiary rulings, also is fatally flawed.38 Consequently, the trial court‘s denial of the plaintiff‘s motion to open was an abuse of discretion.
III
The plaintiff‘s last claim is that the trial court improperly required her to bear the burden of proving fraud under the circumstances of this case. According to the plaintiff, once it is established 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. The plaintiff concedes
“[The plain error] doctrine, codified at
which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. . . . Implicit in this very demanding standard is the notion . . . that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review. . . .
“An appellate court addressing a claim of plain error first must determine if the error is indeed plain in the sense that it is patent [or] readily discernable on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . This determination clearly requires a review of the plain error claim presented in light of the record.
“Although a complete record and an obvious error are prerequisites for plain error review, they are not, of themselves, sufficient for its application. . . . [I]n addition to examining the patent nature of the error, the reviewing court must examine that error for the grievousness of its consequences in order to determine whether reversal under the plain error doctrine is appropriate. A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice. . . . In State v. Fagan, [280 Conn. 69, 87, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007)], we described the two-pronged nature of the plain error doctrine: [An appellant] cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Sanchez, 308 Conn. 64, 76–78, 60 A.3d 271 (2013).
We agree with the defendant that the trial court correctly allocated and applied the burden of proof that, for decades, has been part of our jurisprudence governing motions to open dissolution judgments on the basis of fraud, and furthermore, these cases have not distinguished between fraud based on misrepresentation and that based on nondisclosure. See, e.g., Weinstein v. Weinstein, supra, 275 Conn. 684–85; Billington v. Billington, supra, 220 Conn. 215, 217–18; Jucker v. Jucker, 190 Conn. 674, 675, 677, 461 A.2d 1384 (1983); see also Terry v. Terry, 102 Conn. App. 215, 223, 925 A.2d 375, cert. denied, 284 Conn. 911, 931 A.2d 934 (2007). The plaintiff did
and then conclude that the trial court improperly failed to apply that exception.
As the preceding explanation of the plain error doctrine makes clear, however, a prerequisite to its invocation is the trial court‘s commission of an obvious and serious error. We cannot find plain error under the circumstances of this case because there is no true error to correct. “[T]he plain error doctrine should not be applied in order to review a ruling that is not arguably incorrect in the first place.” State v. Pierce, 269 Conn. 442, 453, 849 A.2d 375 (2004); id. (holding that Appellate Court improperly invoked plain error to raise supplementary issues when “trial court acted pursuant to a presumptively valid statute in accordance with its express provisions“). As we previously have explained, when a trial court has “follow[ed] [an] established rule of law . . . [it] can hardly be said to have committed plain error“; (internal quotation marks omitted) Williamson v. Commissioner of Transportation, 209 Conn. 310, 319, 551 A.2d 704 (1988); id. (no plain error when trial court instructed jury, in accordance with long line of cases applying
To summarize, the trial court improperly
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion NORCOTT, PALMER, EVELEIGH and McDONALD, Js., concurred.
Notes
“(c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party . . . 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, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”
On October 11, 2005, the plaintiff filed another motion to open and modify the dissolution judgment as it pertained to child support. On February 19, 2008, she filed a motion for contempt relating to the defendant‘s alleged violation of a term of the property distribution portion of the parties’ separation agreement. The trial court‘s disposition of these two motions also is not at issue in this appeal.
While changes have been made to
We agree, therefore, with the trial court that Bender did not apply retroactively to the parties’ dissolution action. We disagree, however, with the trial court‘s reasoning. In concluding that Bender did not apply retroactively, the trial court improperly applied the law applicable to statutory amendments rather than judicial decisions.
To dispute our assertion that, around the time of the parties’ divorce, our case law was trending toward a broader conception of what constituted distributable property, the dissent cites Krause v. Krause, 174 Conn. 361, 387, 438 A.2d 548 (1978), and Rubin v. Rubin, 204 Conn. 224, 527 A.2d 1184 (1987). At the time of the judgment in the parties’ dissolution action, the decisions in Krause and Rubin were twenty-three and fourteen years old, respectively, and, as such, do not speak as strongly to the direction of our case law in 2001 as the cases we cite herein, which were decided in 1998.
Instead of accepting this court‘s view of its own
Our disapproval of this aspect of the trial court‘s decision cannot be overstated. It is axiomatic that a dissenting opinion, by its very nature, represents a minority of the court‘s disagreement with the law as established by the majority opinion and, therefore, is not an authoritative ruling to be applied by a lower court. See Arar v. Ashcroft, 585 F.3d 559, 581 n.14 (2d Cir. 2009) (” [d]issents by their nature express views that are not the law“), cert. denied, 560 U.S. 978, 130 S. Ct. 3409, 177 L. Ed. 2d 349 (2010); Kennedy v. Walker, 135 Conn. 262, 274, 63 A.2d 589 (1948) (dissenting and concurring opinions “[do] not represent authoritative law“), aff‘d, 337 U.S. 901, 69 S. Ct. 1046, 93 L. Ed. 1715 (1949), superseded by statute on other grounds as stated in State v. Sanabria, 192 Conn. 671, 474 A.2d 760 (1984); State v. Hernaiz, 140 Conn. App. 848, 855, 60 A.3d 331 (refusing defendant‘s request to rely on dissenting opinions contrary to established law), cert. denied, 308 Conn. 928, 64 A.3d 121 (2013). Additionally, once this court has finally determined an issue, for a lower court to reanalyze and revisit that issue is an “improper and fruitless” endeavor. State v. Shipman, 142 Conn. App. 161, 166, 64 A.3d 338, cert. denied, 309 Conn. 918, 70 A.3d 41 (2013); see also Cannizzaro v. Marinyak, 139 Conn. App. 722, 734, 57 A.3d 830 (2012) (explaining that it is not lower court‘s province to reevaluate Supreme Court precedent), cert. granted on other grounds, 308 Conn. 902, 60 A.3d 286 (2013). The trial court‘s reliance on a dissenting opinion as a source of law was improper. Unfortunately, the trial court‘s gratuitous editorializing regarding the majority opinion in Bender v. Bender, supra, 258 Conn. 733, strongly suggests a fundamental misconception of its role in a hierarchical system of justice.
The trial court did not reject the cited evidence on the rationale set forth by the dissent, and even the defendant does not suggest such a sweeping argument. In any event, we disagree with the dissent‘s assessment of the report, which was preparеd by a highly qualified expert, with degrees in mathematics and actuarial science, who specialized in evaluating employee pensions and their present values. The dissent speculates that, although Miller articulated several contingencies to which the defendant‘s receipt of his pension was subject, he did not actually take them into account. A more plausible reading, however, is that he did take them into account, but did not believe they warranted the excessively high discount rate chosen by Mark S. Campbell, the defendant‘s expert. For example, the report quotes PricewaterhouseCoopers LLP documents and reports evidencing the firm‘s commitment to the pension and the firm‘s financial health, and it discusses the defendant‘s lengthy employment history with the firm, including almost one decade as a partner, in support of the conclusion that he was unlikely to be terminated prematurely. Additionally, because the trial court did not permit Miller to testify, he never had the opportunity to explain the reasoning behind his report, nor to explain why he disagreed with the opposing report, which the dissent simply accepts unquestioningly. Miller identifies several problems with Campbell‘s estimate of the pension‘s present value, not least among them that it was in “direct contrast” to the projection report prepared by PricewaterhouseCoopers LLP, and made available to the defendant, in April, 2000. In crediting Campbell‘s report over Miller‘s, the dissent essentially is finding facts, a task which clearly is not the function of an appellate tribunal. Cruz v. Visual Perceptions, LLC, 311 Conn. 93, 106, 84 A.3d 828 (2014).