September 11, 2018
for the dissolution of a marriage, and for other relief,
brought to the Superior Court in the judicial district of
Stamford-Norwalk and tried to the court, Hon. Dennis F.
Harrigan, judge trial referee; judgment dissolving the
marriage and granting certain other relief in accordance with
the parties' stipulation; thereafter, the court,
Shay, J., granted the plaintiff's motion to open
the judgment and issued certain orders; subsequently, the
court, Shay, J., issued a corrected memorandum of
decision, and the plaintiff appealed to this court;
thereafter, the court, Shay, J., issued an
articulation of its decision; subsequently, this court
reversed the trial court's judgment and remanded the case
with direction to deny the plaintiff's motion to open;
thereafter, the plaintiff filed a petition for certification
to appeal with our Supreme Court, which granted the petition
and remanded the matter to this court to consider the
plaintiff's claims. Affirmed.
M. Higgins, for the appellant (plaintiff).
C. Boyer, for the appellee (defendant).
Keller, Bright and Beach, Js.
appeal returns to the Appellate Court on remand from our
Supreme Court for resolution of the claims raised by the
plaintiff, Gail Reinke. Reinke v. Sing, 328 Conn.
376, 179 A.3d 769 (2018). The plaintiff appeals from the judgment
of the trial court after it reissued several financial orders
that were part of an original judgment that dissolved her
marriage to the defendant, Walter Sing. The plaintiff claims
that the court erred (1) by failing to find that the
defendant committed fraud when he submitted inaccurate
financial affidavits to the court at the time of the original
dissolution judgment, (2) with respect to its alimony award,
(3) with respect to its distribution of property, (4) with
respect to its award of attorney's fees, and (5) by
failing in its financial orders to promote full and frank
disclosure in financial affidavits and by failing to address
adequately the defendant's omission of substantial income
and assets from the financial affidavits that he filed at the
time of the original dissolution judgment. We affirm the
judgment of the trial court.
facts are not in dispute. The parties were married in 1989.
On October, 2, 2007, their marriage was dissolved by the
trial court, Hon. Dennis F. Harrigan, judge trial
referee. At the time of this original dissolution judgment in
2007, the plaintiff was forty-seven years of age and the
defendant was fifty-six years of age. The plaintiff, who
holds a bachelor's degree, was a homemaker during the
marriage, but occasionally worked in a part-time capacity.
The defendant, who holds a degree in mathematics, worked
steadily throughout the marriage and, at the time of the
dissolution proceedings, was a self-employed information
technology consultant. There were two children of the
marriage. At the time of the original dissolution, the
parties' son was seventeen years of age and their
daughter was fourteen years of age. At the time of the
subsequent judgment at issue in the present appeal, both
children had reached the age of majority.
parties' written ‘‘Stipulation for
Judgment'' was incorporated by reference into the
original judgment of dissolution. Among the financial
provisions in the original decree, the defendant was ordered
to pay the plaintiff $3, 333.33 in unallocated alimony and
child support each month, beginning on October 1, 2007,
subject to de novo review at the request of either party
beginning on October 1, 2016. Generally, the stipulation
incorporated in the judgment reflected the parties'
intent to divide their marital assets equally.
4, 2010, the plaintiff filed a motion to open the judgment of
dissolution on the ground that the defendant engaged in fraud
during the original dissolution proceedings by failing to
disclose in his financial affidavit information concerning
the extent of his assets. According to the plaintiff, this
resulted in an undervaluation of the defendant's assets
by approximately $160, 000. The plaintiff asked for the case
to be opened ‘‘for the purpose of complete
discovery and an equitable distribution of the parties'
entire marital estate.''
September 28, 2010, by agreement of the parties, the court,
Shay, J., opened the original judgment of
dissolution for purposes of reassessing the financial orders.
In opening the judgment, the court did not make any finding
with respect to fraud, nor did the parties stipulate that
fraud had occurred. Thereafter, the parties engaged in
extensive discovery for over two and one half years.
August 23, 2013, following a six day trial, the court found
that, at the time of the original dissolution judgment in
2007, the defendant had underreported his assets. In light of
the underreporting that had occurred, the court entered
numerous financial orders that, in several material ways,
differed from those in the original judgment. In its
memorandum of decision, the court stated in relevant part:
‘‘[T]he evidence supports a finding that there
are substantial discrepancies between the [defendant's]
income as first reported at the time of the original hearing
and what actually should have been reported. In fact, the
stipulation of the parties was based upon the assumption that
the [defendant] had gross income of $100, 000, when, in fact,
he was earning twice that. . . . The [defendant] has filed
multiple financial affidavits over the course of the case,
thus presenting the court with the proverbial ‘moving
target.' In calculating the [defendant's] net income,
the court has not factored in business expenses, since the
[defendant] offered no credible evidence as to the amount of
[the] same. The court has, however, taken into consideration
state and federal taxes, and his health insurance premiums.
Accordingly, the court calculates his net weekly income as
$2061. . . .
to the marital estate, while the differences are not as
dramatic, nevertheless, they exist. A comparison to
investment accounts shows an underreporting of $16, 574 . . .
or an 8.5 percent difference. The same comparison with regard
to retirement accounts yields a more dramatic difference of
$63, 655 . . . or 62 percent. In addition, no life insurance
was shown on the corrected financial affidavit, where $250,
000 term insurance insuring the [defendant's] life was
disclosed on the original financial affidavit, and less debt
is reported on the corrected affidavit than on the original.
Finally, the [defendant] failed to disclose to the
[plaintiff] that he anticipated approximately $100, 000 in
income tax refunds, which he ultimately did receive and put
to his own use.
[plaintiff] testified at length about abusive behavior by the
[defendant], physical and mental, throughout the course of
the marriage. There is some evidence to support her claims,
however, much of it is anecdotal. The family was further
stressed by problems concerning their son . . . .
substantial number of the terms of the stipulation for
judgment have already been satisfied in part or in full,
including investment accounts, retirement accounts,
automobiles, and other personal property. On the other hand,
in addition to the omission of certain assets, the evidence
supports a finding that the [plaintiff's] one-third
interest in the condominium in Jersey City, New Jersey, that
is shared with the [defendant's] brother, and which was
to be transferred to the [defendant] in the settlement in
return for a $22, 000 payment to the [plaintiff], was
undervalued. The evidence supports a valuation of her
interest as $58, 833. The [defendant] gave the [plaintiff] a
check for $22, 000, but, to date, she has failed to deliver a
deed of her interest to him.
principal remaining undivided marital asset is the family
home . . . currently occupied by the [defendant], which the
parties have stipulated [has] a fair market value of $1, 565,
000, against which there is combined mortgage debt of
approximately $650, 000. The house is currently listed for
light of all of the circumstances, the court found that the
parties' 2007 stipulation, which had been incorporated by
reference in the original decree, was fair and equitable and
that, apart from the areas in which it would be modified by
the court, it was incorporated into the new decree. The court
stated that, in crafting the final decree, it would take into
account the partial division of the marital estate that
already had occurred pursuant to the parties'
stipulation. The court found that there were no exceptional
intervening circumstances and, thus, it was appropriate to
base its division of the estate on its value as of the date
of the original judgment of dissolution.
the most significant ways in which the court modified the
original decree,  it altered the defendant's alimony
obligation by ordering him to pay the plaintiff $4425 in
alimony monthly beginning on October 1, 2007, until May 31,
2010; $4000 in alimony monthly beginning on June 1, 2010,
until May 31, 2011; and $3500 in alimony monthly beginning on
June 1, 2011, until May 31, 2016. The court specified that
its award was nonmodifiable with respect to its term and that
the arrearage created by its new order was to be paid to the
plaintiff at the rate of $500 per month until paid in full.
The court did not modify the defendant's child support
obligation. As the parties agree, the court equally divided
between them those assets that it found had been undervalued
or not disclosed previously by the defendant. As an award of
attorney's fees in connection with this case, the court
ordered the defendant to pay the plaintiff herself $20, 000,
her current counsel $10, 000, and her former counsel $10,
000. This resulted in an award of attorney's fees
totaling $40, 000.
the plaintiff appealed. In 2015, when this appeal was
previously before this court, the trial court was ordered, in
relevant part, to articulate ‘‘whether it found
that there was no fraud or whether it simply was not making
an express finding regarding fraud. If the latter, the court
is ordered further to articulate whether it found that there
had been fraud as to the first judgment of
dissolution.'' In its articulation of July 29, 2015, the
trial court stated in relevant part that it had granted the
plaintiff's motion to open the judgment of dissolution
‘‘by agreement of the parties'' and
‘‘[a]t that time, [it] made no express finding of
fraud. Although the [defendant] did not voluntarily concede
any fraudulent dealings on his part, by agreeing to open the
judgment, he impliedly conceded the fact that the
[plaintiff's] allegations would, if proven, be a
sufficient basis for opening the judgment of dissolution. . .
. Moreover, the [plaintiff] was never precluded from raising
the issue of fault at the time of the new hearing, which is,
in fact, just what she did. . . .
the court found that the [defendant] had originally failed to
fully disclose some of his assets and understated his income,
it made neither an express finding that his failure to do so
amounted to fraud, nor, for that matter, that his behavior
did not amount to fraud. In short, under all the
circumstances, the [plaintiff] failed to meet her burden to
establish fraud to the satisfaction of the court by clear and
convincing evidence. . . . Moreover, the court believes that
a finding that fraud was not proven could be fairly implied
from a reading of the decision as a whole, in particular,
relative to its other specific findings and as to the relief
granted.'' (Citations omitted; emphasis in original;
internal quotation marks omitted.)
appeal followed. Additional facts will be set forth as
necessary in our analysis of the plaintiff's claims.
we address the plaintiff's claim that the court
erroneously failed to find that the defendant committed fraud
when he submitted inaccurate financial affidavits to the
court at the time of the original dissolution
judgment. We disagree.
first subpart of the present claim, the plaintiff asserts
that the court improperly required her to bear the burden of
proving that the defendant had engaged in fraud. She argues
that, in light of the defendant's fiduciary-like
obligation to make full and frank disclosures on his
financial affidavits, the court should have required the
defendant to prove fair dealing by clear and convincing
a party contests the burden of proof applied by the court,
the standard of review is de novo because the matter is a
question of law.'' (Internal quotation marks
omitted.) Rollar Construction & Demolition, Inc.
v. Granite Rock Associates, LLC, 94 Conn.App. 125,
133, 891 A.2d 133 (2006).
provide necessary context for the plaintiff's argument,
we set forth some basic legal principles concerning breach of
fiduciary duty actions. ‘‘Once a [fiduciary]
relationship is found to exist, the burden of proving fair
dealing properly shifts to the fiduciary. . . . Furthermore,
the standard of proof for establishing fair dealing is not
the ordinary standard of fair preponderance of the evidence,
but requires proof either by clear and convincing evidence,
clear and satisfactory evidence or clear, convincing and
unequivocal evidence. . . . Proof of a fiduciary
relationship, therefore, generally imposes a twofold burden
on the fiduciary. First, the burden of proof shifts to the
fiduciary; and second, the standard of proof is clear and
convincing evidence.'' (Internal quotation marks
omitted.) Papallo v. Lefebvre, 172 Conn.App. 746,
754, 161 A.3d 603 (2017); see also Chioffi v.
Martin, 181 Conn.App. 111, 137, 186 A.3d 15 (2018);
Iacurci v. Sax, 139 Conn.App. 386, 394 n.2, 57 A.3d
736 (2012) (‘‘in cases involving claims of fraud,
self-dealing or conflict of interest, a fiduciary bears the
burden of proving fair dealing by clear and convincing
evidence''), aff'd, 313 Conn. 786, 99 A.3d 1145
plaintiff does not direct our attention to any portion of the
record in which she explicitly asked the court to require the
defendant to prove fair dealing by clear and convincing
evidence or objected on the ground that the court incorrectly
had allocated the burden of proof to her. Nor does the
plaintiff draw our attention to any portion of the record in
which she explicitly argued before the court that the
defendant, consistently identified throughout the proceedings
as her spouse, was in a fiduciary relationship with her. Our
careful review of the relevant pleadings reflects that the
plaintiff did not plead that the defendant was a fiduciary or
that he owed her the duties that are owed to a beneficiary of
a fiduciary relationship.
trial, the plaintiff, relying on Billington v.
Billington, 220 Conn. 212, 595 A.2d 1377 (1991),
stressed that the defendant had an obligation to disclose
fully his income and assets in the financial affidavits that
he submitted to the court at the time of the original
dissolution judgment in 2007, that he failed to do so, and
that the plaintiff was entitled to recourse for his failure
in this regard. At the conclusion of the trial, the
plaintiff's counsel argued that the marital relationship
was ‘‘quasi fiduciary in nature.''
parts II, III, IV, and V of this opinion, we address the
plaintiff's claims that some of the court's financial
orders reflected an abuse of discretion. Consistent with the
arguments advanced at trial, in those claims, the plaintiff
relies on Billington, in which our Supreme Court
abandoned the requirement that a party seeking to open a
dissolution judgment on the basis of fraud must demonstrate
that it exercised diligence in the original dissolution
action in order to discover and expose the fraud.
Billington v. Billington, supra, 220 Conn. 218. The
court's discussion in Billington illuminates the
obligation borne by both parties in dissolution actions to
provide the court with an accurate financial affidavit as
required by Practice Book § 25-30. The court explained
in relevant part: ‘‘Our cases have uniformly
emphasized the need for full and frank disclosure in that
affidavit. A court is entitled to rely upon the truth and
accuracy of sworn statements required by [Practice Book
§ 25-30 (formerly Practice Book § 463)], and a
misrepresentation of assets and income is a serious and
intolerable dereliction on the part of the affiant which goes
to the very heart of the judicial proceeding. . . . These
sworn statements have great significance in domestic disputes
in that they serve to facilitate the process and avoid the
necessity of testimony in public by persons still married to
each other regarding the circumstances of their formerly
private existence. . . . Thus, the requirement of diligence
in discovering fraud is inconsistent with the requirement of
full disclosure because it imposes on the innocent injured
party the duty to discover that which the wrongdoer already
is legally obligated to disclose. . . .
principle of complete disclosure is consistent with the
notion that the settlement of a marital dissolution case is
not like the settlement of an accident case. It stamps with
finality the end of a marriage. . . . Courts simply should
not countenance either party to such a unique human
relationship dealing with each other at arms' length.
Whatever honesty there may, or should, have been during the
marriage should at least be required by the court at its end.
. . .
have recognized, furthermore, in the context of an action
based upon fraud, that the special relationship between
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 ...