ERIC P. SOUSA
DONNA M. SOUSA
December 5, 2016
from Superior Court, judicial district of Waterbury, Hon.
Lloyd Cutsumpas, judge trial referee.
Michael Budlong, with whom was Brandon B. Fontaine, for the
William J. Ward, for the appellee (plaintiff).
DiPentima, C. J., and Keller and Flynn, Js.
seekingtoopen a judgment beyond the passage of the four month
limitation period from its rendering provided by General
Statutes § 52-212a under an exception for judgments
procured by fraud, bears the burden of proving fraud in all
of its elements by clear and convincing evidence. At the
heart of this appeal is whether the defendant, Donna M.
Sousa, proved by clear and convincing evidence that the
plaintiff, Eric P. Sousa, knew that the $32, 698.82 he valued
his pension at when the parties were divorced in 2001 was
incorrect. The trial court found that the defendant failed to
carry this burden. We affirm that judgment.
first turn to the procedural history of this case, which
explains how it is again before us. This appeal, which stems
from a judgment modifying a prior judgment dissolving the
marriage of the plaintiff and the defendant has returned to
us on remand from our Supreme Court. In Sousa v.
Sousa, 157 Conn.App. 587, 590, 116 A.3d 865 (2015),
rev'd, 322 Conn. 757, 143 A.3d 578 (2016), this court
held that the trial court, Hon. Lloyd Cutsumpas,
judge trial referee, improperly denied the defendant's
motion to vacate for lack of subject matter jurisdiction a
judgment rendered by the trial court, Resha, J., in
accordance with a stipulation by the parties, modifying the
provision of the judgment of dissolution that divided the
plaintiff's pension benefits equally between the parties.
Our Supreme Court reversed that decision and remanded the
case to us with direction to consider the defendant's
remaining claims on appeal. Sousa v. Sousa,
322 Conn. 757, 790, 143 A.3d 578 (2016).
turn to the record, which discloses the following facts,
which were either found by Judge Cutsumpas or are undisputed
for purposes of this appeal, and procedural history. In
November, 2000, after approximately fourteen years of
marriage, the plaintiff filed a complaint seeking to dissolve
his marriage to the defendant on the ground of irretrievable
breakdown. Both parties were represented by counsel
throughout the uncontested dissolution proceedings. The
plaintiff, who had been employed for fourteen years as a
police officer with the Naugatuck Police Department
(department), filed a financial affidavit on December 18,
2000, setting forth his financial assets and expenses. Under
the ‘‘deferred compensation plans''
category, the plaintiff wrote ‘‘borough
pension-value undetermined.'' Soon thereafter, the
plaintiff received a document from the department indicating
that, as of April 21, 2001, he had contributed $32, 698.82 to
the department's pension plan. Consistent with that
document, the plaintiff filed a second financial affidavit on
November 21, 2001, stating that his pension was valued as of
April 21, 2001, at $32, 698.82.
parties were divorced on December 19, 2001. They executed a
separation agreement that provided, inter alia, that the
plaintiff's pension benefits would be divided equally
between the parties pursuant to a qualified domestic
relations order (QDRO). The separation agreement further
required the plaintiff to pay periodic alimony of $130 per
week for five years or until the defendant began cohabitating
with another individual.
January 3, 2002, in the course of preparing the QDRO, the
defendant's counsel, Kenneth Potash, obtained the
document listing the plaintiff's contributions to the
pension, fund as well as a four page document entitled
‘‘Appendix A-Pension Fund'' (appendix),
which set forth, inter alia, the pension plan's vesting
requirements and the various formulae for calculating
department employees' benefits. Section 10 of the
appendix provides that department employees such as the
plaintiff who have been continuously employed by the
department for ten years are entitled, upon reaching
retirement age, to an annual pension benefit calculated based
on their earnings and years of service. Attorney Potash
provided the defendant with a copy of the appendix prior to
completing the QDRO, although she may not have read it.
Nevertheless, the defendant was aware at the time of the
divorce that the plaintiff's pension was based upon his
years of service and earnings.
QDRO was executed and filed with the court on May 17, 2002.
It provided that the defendant shall receive a 50 percent
interest in the ‘‘marital portion'' of
the plaintiff's pension, with the marital period running
from the date of the marriage on December 20, 1985, to the
date of dissolution on December 19, 2001.
2003, approximately two years after the divorce, the
plaintiff learned that the defendant had begun cohabitating
with another individual. The plaintiff telephoned the
defendant and informed her of his intention to seek a court
order terminating the alimony payments. Sometime later, after
referring to the separation agreement, the defendant
acknowledged that her cohabitation provided grounds for
termination of the alimony. She informed the plaintiff,
however, that she needed the alimony payments to finish her
education and obtain a teaching degree, higher income, and
pension benefits of her own. Accordingly, the defendant
offered to relinquish her 50 percent interest in the
plaintiff's pension in exchange for three additional
years of alimony. The plaintiff agreed and continued to make
weekly alimony payments. Neither party reduced the agreement
to writing at that time or sought a modification of the
original judgment of dissolution.
years later, the plaintiff completed the additional alimony
payments pursuant to his oral agreement with the defendant.
The plaintiff then filed a motion to modify the judgment of
dissolution, seeking to have his full pension returned to
him. As the parties agreed, the plaintiff's counsel
prepared the motion and accompanying stipulation, which was
executed by the parties and submitted to the court for
approval. The parties appeared before Judge Resha on January
2, 2007. The plaintiff was represented by counsel, and the
defendant was then a self-represented litigant. Judge Resha
asked the defendant if she had reviewed the terms of the
stipulation with a family relations officer, and the
defendant answered in the affirmative. After reading the
stipulation into the record, Judge Resha asked the defendant
to explain why she was entering into an agreement waiving her
interest in the plaintiff's pension. The defendant
admitted that, three years earlier, it was her idea to enter
into an oral agreement with the plaintiff whereby she would
relinquish her rights in the pension in exchange for
additional alimony payments. The defendant also indicated
that she understood that she could not regain her interest in
the pension once she waived it, and that she was comfortable
entering into the agreement without the benefit of counsel.
Judge Resha found that the stipulation was warranted,
accepted it, and made it a final order of the court. No
appeal was taken.
plaintiff ultimately retired in October, 2007, after
undergoing spinal fusion surgery in late 2006 to remedy a
work related injury that rendered him unable to perform his
duties. Thereafter, the plaintiff began receiving an annual
pension benefit of $43, 992.80.
March 31, 2011-four years after the 2007 modification of the
dissolution judgment and nearly a decade after the plaintiff
filed his November 21, 2001 financial affidavit-the defendant
filed a motion to open and vacate the modification, asserting
that the plaintiff had secured the modification through
fraud. Specifically, the defendant claimed that the plaintiff
had fraudulently undervalued his pension in the financial
affidavit by listing only the value of his contribution-$32,
698.82. The defendant further argued that, had the plaintiff
disclosed the full value of his pension, there was a
substantial likelihood that Judge Resha would have rejected
the proposed modification as inequitable. A few months later,
the defendant filed a second motion to vacate the
modification, this time asserting that Judge Resha lacked
subject matter jurisdiction to enter the modification.
Cutsumpas held an evidentiary hearing on the motions on
January 14, 2014. On February 25, 2014, Judge Cutsumpas
issued a memorandum of decision denying both motions. In
denying the defendant's first motion, Judge Cutsumpas
found that the defendant failed to prove the prima facie
elements of fraud with clear and convincing evidence. First,
noting that the defendant failed to present actuarial
evidence establish- ing the value of the plaintiff's
pension at the time he filed his 2001 financial affidavit,
Judge Cutsumpas found that the defendant failed to prove that
the listed amount of $32, 698.82 was inaccurate. Second,
Judge Cutsumpas found that, even if the plaintiff had
misstated the value of his pension, the defendant failed to
prove that he did so knowingly. Finally, Judge Cutsumpas
found that the defendant adduced ‘‘no evidence
whatsoever'' that, had she known the full value of