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Cimino v. Cimino

Court of Appeals of Connecticut

June 20, 2017

GINA CIMINO
v.
JOSEPH CIMINO

          Argued Date: January 6, 2017

         Appeal from Superior Court, judicial district of New Haven, Gould, J. [judgment]; Goodrow, J. [motion to open].

          Gina Cimino, self-represented, the appellant (plaintiff).

          Christopher T. Goulden, with whom, on the brief, were Janis M. Laliberte and Margaret Sullivan, for the appellee (defendant).

          DiPentima, C. J., and Prescott and Beach, Js.

          OPINION

          DiPENTIMA, C. J.

          The plaintiff, Gina Cimino, appeals from the judgment of the trial court denying her motion to open and vacate the judgment dissolving her marriage to the defendant, Joseph Cimino. On appeal, she argues that (1) the dissolution court committed plain error in its valuation of the defendant's pension and (2) the trial court abused its discretion in denying her motion to open the judgment. We decline to address the claim that the dissolution court committed plain error and affirm the judgment of the trial court.

         In a previous decision of this court, we set forth the following facts. ‘‘In a memorandum of decision dated July 25, 2013, the [dissolution] court found [that] . . . [t]he parties' twenty-nine year marriage had broken down irretrievably and neither party was more at fault than the other for the breakdown. The plaintiff was fifty-four years old, in reasonably good health, and a college graduate with a Master's degree in business administration. The parties stipulated the plaintiff's earning capacity to be $37, 000 per year. Although she had not worked outside of the home since 1990, the plaintiff had a business making wreaths and ornaments.

         ‘‘The defendant has been employed by the Internal Revenue Service for thirty years and, at the time of trial, earned $119, 548 per year. At the time of the memorandum of decision, the defendant had a thrift savings plan with a balance of $124, 377.16 and a [pension], in lieu of social security, in the amount of $147, 000. . . .

         ‘‘The court . . . ordered the defendant to pay alimony in the amount of $600 per week for a period of ten years to the plaintiff. The plaintiff was awarded the thrift savings plan valued at approximately $124, 000 and an individual retirement account valued at $11, 216. The defendant was awarded the [pension] fund.'' Cimino v. Cimino, 155 Conn.App. 298, 299-300, 109 A.3d 546, cert. denied, 316 Conn. 912, 111 A.3d 886 (2015).

         On August 3, 2015, the plaintiff filed a motion to open and vacate the July 25, 2013 dissolution judgment on the bases of fraud, intentional misrepresentation and/ or mutual mistake.[1] She argued, inter alia, that the defendant had provided only the value of his contributions to the pension, approximately $147, 000, rather than its actual value, which was substantially higher, [2]and that the defendant had failed to disclose approximately $50, 000 in gifts from his family. The plaintiff sought to conduct postjudgment discovery pursuant to our decision in Oneglia v. Oneglia, 14 Conn.App. 267, 540 A.2d 713 (1988), and sought an order vacating the judgment on the basis of either fraud or mutual mistake, and any other equitable relief.[3] The defendant filed an opposition to the motion to open on September 16, 2015.

         The trial court held a hearing on November 20, 2015. Approximately three weeks later, the court issued a memorandum of decision denying the plaintiff's motion to open. This appeal followed.[4] Additional facts will be set forth as necessary.

         Before addressing the specific claims of the plaintiff, we set forth our standard of review and the relevant legal principles. ‘‘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 decision of the trial court . . . 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. . . .

         ‘‘In considering a motion to open the judgment on the basis of fraud, then, the trial court must first determine whether there is probable cause to open the judgment for the limited purpose of proceeding with discovery related to the fraud claim. . . . This preliminary hearing is not intended to be a full scale trial on the merits of the [moving party's] claim. The [moving party] does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. . . . If the moving party demonstrates to the court that there is probable cause to believe that the judgment was obtained by fraud, the court may permit discovery.'' (Internal quotation marks ...


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