Veneziano v. Veneziano, 205 Conn. App. 718 (2021) Discovery on motion to open for fraud with post-judgment motions pending; Oneglia still applies)
Officially released July 13, 2021
In Short: In order to pursue post-judgment discovery there must either be a post-judgment motion pending for which the discovery sought is relevant, or, pursuant to a motion to open and Oneglia, there must be a finding of probable cause that fraud exists before discovery may be sought regarding a motion to open. The very fact that a post-judgment motion may be pending does not eliminate the requirements of Oneglia for discovery relating to a motion to open. Lastly, always provide the Appellate Court with a complete transcript for your appeal.
Alternatively, in plain English: filing a post-judgment motion does not mean you can conduct discovery as if the Judgment had already been opened without doing the work of showing probable cause regarding fraud as part of the judgment.
The parties were married in 1969 and were divorced by separation agreement in 2013. At the time of the judgment, the parties jointly owned the marital residence and jointly owned 1,835 shares of stock in VMC Co. The separation agreement provided that Wife would quitclaim her interest in the marital residence and Husband would hold her harmless and refinance the home equity line of credit (“HELoC”) by 2015 or comply with certain terms regarding listing and sale of the property. The parties were to equally divide the VMC Co. stock.
In 2016, Wife filed a motion alleging Husband had failed to refinance the home or list it for sale, and that she had been forced to make payments on the HELoC by Husband’s failure to do so. The parties entered into a series of agreements to resolve Wife’s motion, and Wife filed a contempt motion alleging Husband had failed to abide by the latest agreement.
Husband thereafter filed a motion to open the judgment on the basis of fraud and intentional misrepresentation, and amended the pleading to include a claim of mutual mistake. Husband alleged that all 1,835 shares of stock had been transferred to Wife prior to 2012 without his knowledge and that Wife had mispresented to the court that both parties jointly owned the stock. Husband appended a regulatory filing that indicated Husband was not a “direct owner or executive officer” of VMC Co. but which did not indicate the number of shares that each owner possessed. Husband issued four subpoenas related to VMC Co. and each was quashed by the trial court.
The trial court held an evidentiary hearing on Wife’s motion for contempt and a preliminary Oneglia hearing on Husband’s motion to open, after which it denied Husband’s motion, stating that he “failed to establish probable cause that the judgment was procured through fraud or mutual mistake.” In a separate decision, the trial court held Husband in contempt per Wife’s motion.
Husband appealed, arguing that the trial court (1) erred by quashing his subpoenas and (2) erred by finding he failed to establish probable cause that the judgment was procured through fraud or mutual mistake. (Husband’s argument that the trial court erred in granting the motions for contempt was dismissed as untimely and his argument regarding denial of a motion for re-argument was dismissed as abandoned.)
Husband’s first claim, that the trial court erred by quashing is subpoenas, hinged on the argument that, because Wife filed a motion for contempt, he was entitled to issue subpoenas and conduct discovery. Husband relied on Brody v. Brody, 153. Conn. App. 625 (2014), arguing, essentially, that Brody stood for the proposition that, if a motion for contempt was pending, he had a right to conduct discovery, period.
The Appellate Court first set forth the abuse of discretion standard regarding a decision to quash a subpoena, noting that application of the correct legal principle is subject to plenary review. Pursuant to Oneglia v. Oneglia 14 Conn. App. 270 (1988), once a court has rendered a final judgment, there is no civil action for purposes of discovery until and unless the judgment is opened. Oneglia requires that the court make a finding at a preliminary hearing as to whether there is probable cause to open a judgment before allowing or ruling on discovery requests pursuant to a motion to open.
The Appellate Court addressed Husband’s reliance on Brody, finding it was misplaced. Brody does not stand for the proposition that if a contempt motion is filed that Oneglia is simply inapplicable. The extent to which discovery is available pursuant to a post-judgment motion for contempt depends on the allegations of the motion for contempt. Here, Wife’s allegations on her contempt motion stem from conduct subsequent to the entry of judgment, and thus, do not implicate discovery pertaining to allegations prior to the judgment. The Appellate Court concluded that the trial court properly interpreted the applicable legal principle as set forth in Oneglia and correctly applied the law in quashing the subpoenas. Thus, there was no abuse of discretion.
As to Husband’s second claim, that the trial court erred by finding he failed to establish probable cause, the Appellate Court concluded that Husband did not provide an adequate record for review. Review of the trial court’s judgment with respect to probable cause is dependent on the facts before the court and reviewed for abuse of discretion. Husband provided only a nine-page excerpt from the transcript of the hearing, solely related to the portions addressing the motion to quash. Husband argued that the remaining portions were irrelevant, as he contended they related solely to the contempt motions. The Appellate Court was not persuaded, noting that they could glean that Wife testified about the alleged stock transfers based on what was admitted into evidence, and it is Husband’s burden to provide the adequate record for review.
The judgment was affirmed.
