Conroy v. Idlibi, 204 Conn. App. 265 (2021) (motion to open for fraud based on adultery & Oneglia hearing)
Officially released May 4, 2021.
In Short: Husband filed a motion to open the judgment of dissolution based on fraud, alleging that Wife had perjured herself regarding adultery and he had discovered and could present evidence to prove that she did so. The trial court denied his motion at a preliminary Oneglia hearing on the basis that a new trial was not likely to return a different result. The Appellate Court split, with two judges affirming the judgment. This case is a fascinating crossroads of the practicalities of when litigation must end and the rights of litigants where there is an allegation of perjury as to fault. A petition for certification will almost certainly follow.
Wife was eighteen years old and Husband a thirty-eight year old financially successful dentist when they entered into what was Husband’s third marriage. After ten years, one child, an affair by Wife and the draining of Wife’s education account to pay Husband’s debts, Wife filed a dissolution action in May 2015.
A trial was conducted in May 2016 and Judge Carbonneau issued a memorandum of decision dissolving the marriage. The trial court found that the marriage was a turbulent and dramatic one, with both parties lacking credibility in their sworn statements, and Wife engaging in an extramarital relationship, although there was no evidence that she had sexual relations with her paramour. In a prior unsuccessful appeal, Husband claimed that the trial court erred by finding neither party more at fault for the breakdown of the marriage and by favoring Wife in the financial awards.
In October of 2018, Husband filed a motion to open the judgment on the basis that Wife had committed a fraud by being untruthful about the nature of her extramarital relationship and allegations of physical abuse by Husband. Husband alleged that Wife acknowledged in a civil proceeding that she had disclosed to her counsel that she was having sexual relations with another man prior to denying such relations on her interrogatories during the dissolution. Husband alleged that text messages extracted by the police related to the criminal matter that had since been dismissed exposed a “graphic sexual relationship between [Wife] and another man spanning more than one year prior to [Wife’s] filing for divorce.” Husband sought an Oneglia hearing to permit further discovery.
The Oneglia hearing was held in December 2018 and Judge Connors denied the motion, stating on the record that the trial court had found neither party credible at time of trial and that the result of a new trial was unlikely to be different based on the memorandum of decision. Husband appealed. Husband argued that Judge Connors improperly (1) considered his motion to open as a substitute for appeal, (2) concluded the dissolution court did not find Wife credible as to her testimony of assault, (3) speculated that the dissolution court did not wait for the resolution of criminal charges because it did not think that was important, and (4) determined there was no fraud without an evidentiary hearing.
The Appellate Court set forth the standard of review for denial of a motion to open, which is abuse of discretion. The Appellate Court did not agree that Judge Connors considered this a substitute for appeal, only that the trial court recognized that the underlying facts were the same regardless of legal theory. Similarly, there was no factual basis to support Husband’s claim of speculation. There was no evidence to support Husband’s claim that Judge Carbonneau relied on the fraudulent misrepresentations of Wife in the dissolution decision. The Appellate Court would not disturb Judge Connor’s finding that the alleged fraud would be highly unlikely to have changed Judge Carbonneau’s decision in the dissolution. The judgment was affirmed.
Judge Flynn authored a dissenting opinion, concluding that it was error and a failure of due process to deny Husband’s motion without a full evidentiary hearing. Judge Flynn concluded that a non-sexual affair cannot be equated with adultery and that Husband’s lack of credibility as to his finances cannot justify the denial of an evidentiary hearing as to Wife’s alleged fraud.
Judge Flynn argued that Judge Carboneau’s citation of lack of evidence of a sexual affair suggests that, had there been evidence, the decision might have been different. “In short, adultery, unless observed “in flagrante delicto,” is hard to prove, which explains why the dissolution court did not find as a fact that it had occurred because there was ‘no direct evidence’ of it. However, an admission to such conduct by the plaintiff on her cell phone would constitute strong evidence, if authenticated, that the conduct had occurred.” Judge Flynn would have remanded for an evidentiary hearing on the motion to open.
