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*********************************************** 
CAROLYN H. LONGBOTTOM v.

RICHARD H. LONGBOTTOM

(AC 42274)

Prescott, Bright and Harper, Js.

Syllabus

The plaintiff, whose marriage to the defendant previously had been dissolved, appealed to this court from the judgment of the trial court

denying her motions to open and to modify the court’s previous judgment

modifying an educational support order. The parties’ separation agreement, which was incorporated into the dissolution judgment, included

a section pertaining to the division of costs for educational support for

their daughter. That section did not contain terms setting forth a specific

allocation of responsibility between the parties with regard to the educational expenses but provided that the court would retain jurisdiction

over the issue and that the judgment would remain modifiable. The

defendant filed a postjudgment motion to modify the educational support

order, seeking to establish each party’s responsibility regarding their

daughter’s college costs and expenses, which the court granted, ordering

that the plaintiff was responsible for 45 percent of the college costs and

expenses for the 2017-2018 school year. Thereafter, the plaintiff filed a

motion to open the judgment and a motion to modify the educational

support order, alleging fraudulent nondisclosure on the part of the defendant with regard to his income. The court denied the plaintiff’s motions,

concluding that the plaintiff had the defendant’s accurate financial information, and the plaintiff appealed to this court. Held:

1. The trial court did not fail to determine whether the plaintiff had met

her burden of proof to establish the existence of probable cause that

the defendant committed fraud by nondisclosure; the trial court’s memorandum of decision explicitly set forth the definition of fraud and the

legal standard for opening a judgment when fraud is alleged before it

ultimately denied the plaintiff’s motions and it was implicit in the court’s

rejection of the plaintiff’s claim that the court considered the facts as

applied to the appropriate legal framework and made a determination

on that basis.

2. The trial court did not abuse its discretion in denying the plaintiff’s motions

to open and to modify the judgment on the basis of fraud; in light of

the evidence before the court in ruling on the plaintiff’s motion to open,

it was not an abuse of discretion for the court to conclude that the

plaintiff failed to establish the existence of probable cause that the

defendant had fraudulently concealed certain financial information during the proceedings on his motion to modify the educational support

order, the stock option sale proceeds were reflected in the defendant’s

2016 W-2, and, although listed in a separate section of his financial

affidavit, were on the affidavit, not omitted or concealed, and the defendant testified that his financial affidavit was truthful and honest, testimony which the court could have credited, and, in concluding that the

plaintiff had failed to meet her burden of fraudulent nondisclosure, the

court had no basis on which to modify, on the basis of fraud, its judgment

on the educational support order.

3. This court declined to review the plaintiff’s claims attacking the court’s

understanding, interpretation and application of the defendant’s financial affidavits and tax documents; the plaintiff’s claims regarding

whether the trial court properly understood the defendant’s financial

information were not properly before this court because this question

was unrelated to the question of whether the defendant fraudulently

concealed information from the court and the plaintiff, which was the

sole basis for the plaintiff’s motions open and to modify.

Argued January 14—officially released April 21, 2020

Procedural History

Action for the dissolution of a marriage, and for other

relief, brought to the Superior Court in the judicial dis-
trict of Hartford and tried to the court, Carbonneau, J.;

judgment dissolving the marriage and granting certain

other relief; thereafter, the court, Nastri, J., granted

the defendant’s postjudgment motion to modify educational support; subsequently, the court, Nastri, J.,

denied the plaintiff’s motions to open the judgment

modifying the educational support order and to modify

the educational support order, and the plaintiff

appealed this court. Affirmed.

Carolyn H. Mackenzie, self-represented, the appellant (plaintiff).

Greg C. Mogel, with whom, on the brief, was P. Jo

Anne Burgh, for the appellee (defendant).
Opinion

HARPER, J. The self-represented plaintiff, Carolyn

H. Longbottom, appeals from the judgment of the trial

court denying her motions to open and to modify the

court’s previous judgment modifying an existing educational support order on the basis of the alleged fraudulent nondisclosure of the defendant, Richard H. Longbottom. On appeal, the plaintiff claims that the court

erred by concluding, inter alia, that she had failed to

prove that there was sufficient probable cause of fraud

by nondisclosure to permit the court to open the judgment and allow for discovery, which would have established the merits of her motion for modification. We

disagree with the plaintiff and, accordingly, affirm the

judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. The plaintiff and

the defendant were married in Johannesburg, South

Africa, in 1994, and two children were born of the marriage. In October, 2011, the plaintiff initiated dissolution

proceedings. Thereafter, the parties entered into a dissolution of marriage agreement (agreement), which was

incorporated into the judgment of dissolution rendered

on October 12, 2012. Section six of the agreement pertained to the division of costs for educational support

of their daughter. At the time the agreement was incorporated into the judgment, its terms did not include a

specific allocation of responsibility between the parties

with regard to these education expenses, but it provided

that the court would retain jurisdiction over the issue

and that the judgment would remain modifiable in

accordance with state statutory law regarding modification of support orders.1

The defendant filed a postjudgment motion to modify

the educational support on January 4, 2017, in order

to establish each party’s responsibility regarding their

daughter’s college costs and expenses. During a hearing

on the defendant’s motion, held on June 28, 2017, the

court instructed the parties to exchange tax returns

and financial documents in order to determine whether

either side had any issues pertaining to the information

contained in the other party’s documents. The plaintiff

notified the court that she had concerns about the

defendant’s documents and, specifically, brought to the

attention of the court her concern that the income listed

on the defendant’s financial affidavit did not account

for the value of certain stock option sale proceeds that

the defendant had received.2 Accordingly, the court

heard argument from the self-represented plaintiff and

the defendant’s counsel on that issue, and admitted the

tax returns of both parties and the defendant’s 2016 W2 into evidence.

On July 12, 2017, the court granted the defendant’s

motion to modify the educational support order. In its
decision, the court made findings regarding each party’s

net weekly income, assets, and liabilities. Specifically,

the court found that ‘‘[t]he plaintiff has a net weekly

income of $1307, including alimony. She has assets of

$1,217,276 and liabilities of $5200. . . . The defendant

has a net weekly income of $3466. He has assets of

$1,548,512.60 and liabilities of $6700.’’ (Footnote omitted.) Ultimately, the court concluded that ‘‘[t]he plaintiff

shall pay 45 percent and the defendant 55 percent of

the cost of [their daughter’s] 2017–2018 . . . tuition,

room, board, dues, registration and routine fees—

including but not limited to books and laboratory fees—

after those costs are offset by all scholarships, grants

and loans.’’

On November 13, 2017, the plaintiff, alleging fraudulent nondisclosure on the part of the defendant, filed

a motion to open the July 12, 2017 judgment modifying

the educational support order and a motion to modify

the educational support order. The plaintiff alleged in

her motions that the defendant had materially misrepresented his income on his financial affidavit submitted

in connection with his motion to modify, such that the

court should open the judgment on the basis of fraud

in order to permit further discovery and then modify

the educational support order. Specifically, she alleged

that the defendant had fraudulently misled the court

by including $100,429, the amount he describes as proceeds from the sale of stock options, under his assets

but not under his income.

At the hearing on the plaintiff’s motions, held on

September 7, 2018, the plaintiff presented an expert

witness who testified that income was omitted from

the defendant’s financial affidavit. The defendant testified in rebuttal and explained that the stock sale proceeds were accounted for under his assets in his affidavit and that he indeed had disclosed that amount to the

court prior to the court’s July 12, 2017 decision on his

motion for modification.

On October 22, 2018, the court rendered judgment

denying the plaintiff’s motions to open and to modify.

The court stated: ‘‘The defendant’s gross income and

the proceeds from the sale of his stock options were

disclosed in his financial affidavit, albeit in two different

places. They were disclosed in the same place on his

2016 Form 1040 and his 2016 W-2. Consequently, the

plaintiff had the defendant’s accurate financial information during the hearing.’’ This appeal followed. Additional facts will be set forth as necessary.

On appeal, the plaintiff raises nine issues that she

argues constitute error on behalf of the trial court in

rendering its judgment denying her motions to open

and to modify. Upon careful review, her claims can be

summarized and condensed into three: (1) the court

failed to determine whether the plaintiff had met her

burden of proof to establish the existence of probable
cause that the defendant committed fraud by nondisclosure; (2) to the extent that the court actually determined

that the plaintiff had failed to meet her burden of proof,

the court nonetheless abused its discretion in making

that determination and in denying the plaintiff’s motions

to open the judgment and to modify the educational

support order; and (3) the court failed to understand the

implications of its factual determinations and holding.3

In response, the defendant argues that the court did

determine that the plaintiff had failed to meet her burden of proof in establishing probable cause of fraudulent nondisclosure and that the court did not abuse its

discretion in denying the plaintiff’s motions to open

and to modify. We agree with the defendant and affirm

the judgment of the trial court.

I

The plaintiff claims first that the court failed to determine whether she had met her burden of proof to establish the existence of probable cause that the defendant

committed fraud by nondisclosure. We disagree with

the plaintiff.

‘‘The construction of a judgment is a question of law

for the court. . . . As a general rule, judgments are

to be construed in the same fashion as other written

instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment. . . . The interpretation of a judgment may

involve the circumstances surrounding the making of

the judgment. . . . Effect must be given to that which

is clearly implied as well as to that which is expressed.

. . . The judgment should admit of a consistent construction as a whole. . . . An implication is defined as

an inference of something not directly declared, but

arising from what is admitted or expressed. . . . It is

used where the intention in regard to the subject matter

is not manifested by explicit and direct words, but is

gathered by implication or necessary deduction from

the circumstances, the general language or the conduct

of the parties.’’ (Citations omitted; internal quotation

marks omitted.) Gorelick v. Montanaro, 94 Conn. App.

14, 30, 891 A.2d 41 (2006).

The court’s memorandum of decision set forth in

explicit terms the definition of fraud and the legal standards for establishing probable cause of fraud and for

opening judgments in the context of alleged fraud. After

a thorough overview of the applicable legal principles

that guided its decision, the court ultimately denied the

plaintiff’s motions to open and to modify. Implicit in

the court’s analysis, when construed as a whole; see

id.; is the court’s finding that the plaintiff, before the

court rendered its July 12, 2017 judgment granting the

defendant’s motion to modify the educational support

order, had received the financial information from the

defendant that she claims was fraudulently withheld
and that she, therefore, failed to establish probable

cause of fraudulent nondisclosure.4 Though the court

does not state this in explicit terms, it is implicit in its

rejection of the plaintiff’s claim that the court considered the facts as applied to the appropriate legal framework and made a determination on that basis. Accordingly, we conclude that the court did determine that

the plaintiff failed to establish probable cause of fraudulent nondisclosure.

II

Next, the plaintiff claims that, even if the court determined that she failed to establish probable cause of

fraudulent nondisclosure, it improperly denied her

motions to open and to modify the judgment on that

basis. We disagree with the plaintiff.

We first set forth the legal principles that guide our

review of a court’s denial of a motion to open a judgment

based on alleged fraud. ‘‘It is a [well established] general

rule that . . . a judgment rendered by the court . . .

can subsequently be opened [after the four month limitation set forth in General Statutes § 52-212a and Practice Book § 17-43] . . . if it is shown that . . . the

judgment . . . was obtained by fraud . . . .’’ (Footnote omitted; internal quotation marks omitted.) Terry

v. Terry, 102 Conn. App. 215, 222, 925 A.2d 375, cert.

denied, 284 Conn. 911, 931 A.2d 934 (2007). ‘‘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 omitted.) Cimino v. Cimino,

174 Conn. App. 1, 5–6, 164 A.3d 787, cert. denied, 327

Conn. 929, 171 A.3d 455 (2017); see also Sousa v. Sousa,

173 Conn. App. 755, 765, 164 A.3d 702, cert. denied, 327
Conn. 906, 170 A.3d 2 (2017).

‘‘Fraud consists in deception practiced in order to

induce another to part with property or surrender some

legal right, and which accomplishes the end designed.

. . . The elements of a fraud action are: (1) a false

representation was made as a statement of fact; (2) the

statement was untrue and known to be so by its maker;

(3) the statement was made with the intent of inducing

reliance thereon; and (4) the other party relied on the

statement to his detriment. . . . A marital judgment

based upon a stipulation may be opened if the stipulation, and thus the judgment, was obtained by fraud.’’

(Internal quotation marks omitted.) Spilke v. Spilke,

116 Conn. App. 590, 595, 976 A.2d 69, cert. denied, 294

Conn. 918, 984 A.2d 68 (2009).

‘‘Fraud by nondisclosure, which expands on the first

three of [the] four elements [of fraud], involves the

failure to make a full and fair disclosure of known

facts connected with a matter about which a party has

assumed to speak, under circumstances in which there

is a duty to speak. . . . A lack of full and fair disclosure

of such facts must be accompanied by an intent or

expectation that the other party will make or will continue in a mistake, in order to induce that other party

to act to her detriment. . . . In a marital dissolution

case, the requirement of a duty to speak is imposed by

Practice Book § [25-30], requiring the exchange and

filing of financial affidavits . . . and by the nature of

the marital relationship.’’ (Internal quotation marks

omitted.) Reville v. Reville, 312 Conn. 428, 441, 93 A.3d

1076 (2014).

In the present case, the plaintiff presented the court

with evidence that the proceeds from the sale of the

defendant’s stock options should have been listed as a

part of his income in addition to his assets on his financial affidavit. The plaintiff proffered an expert witness,

William Murray. In the expert disclosure, it was

expected that he would testify ‘‘[t]hat it is likely that

the [defendant’s] financial affidavit submitted in connection with the July 17, 2017 hearing omitted certain

income from the husband’s employer compensation

plan, so as to be materially false and misleading.’’ On

direct examination, Murray indeed testified that his

understanding ‘‘is that income received from shares is

also includable income on a financial affidavit.’’ During

cross-examination, however, Murray acknowledged

that the stock amount in fact had been disclosed on

the defendant’s affidavit as an asset, and he further

conceded that the defendant’s 2016 W-2, which was

presented to the court during the initial hearing on

the defendant’s motion to modify, reflected an income

amount that accounted for the stock option sale proceeds that had not been included as income on his

affidavit.

In response, the defendant testified that the value of
his stock options, both vested and unvested, were listed

on his financial affidavit as assets and that his financial

affidavit was truthful and honest.5

In his closing argument, the defendant further emphasized the fact that

the court had been provided with the defendant’s 2016

W-2 and tax returns, all of which accounted for the

stock option sale proceeds, and argued that the plaintiff

could not establish probable cause of fraudulent nondisclosure because the information she claimed was misrepresented had been readily provided to the court at

the appropriate time.

In assessing whether, on the basis of this evidence,

the court abused its discretion in denying the plaintiff’s

motion to open, we are mindful of our standard of

review, which requires us to make every reasonable

presumption in favor of the court’s action. The court’s

memorandum of decision states: ‘‘The defendant’s gross

income and the proceeds from the sale of his stock

options were disclosed in his financial affidavit, albeit

in two different places. . . . Consequently, the plaintiff

had the defendant’s accurate financial information during the hearing.’’ The court acknowledged that, although

the stock sale income and proceeds were in different

places, they were indeed listed on the affidavit, and not

omitted or concealed. The court also had the defendant’s 2016 W-2 and tax returns, which showed the

stock options he received as income. The court was

aware of these facts prior to rendering judgment on the

defendant’s motion to modify, because they were raised

by the plaintiff and addressed by both parties during

the hearing on the defendant’s motion to modify. See

also footnote 4 of this opinion.

Additionally, ‘‘[i]n a case tried before a court, the

trial judge is the sole arbiter of the credibility of the

witnesses and the weight to be given specific testimony.

. . . As such, the trial court is free to accept or reject,

in whole or in part, the evidence presented by any

witness, having the opportunity to observe the witnesses and gauge their credibility.’’ (Citation omitted;

internal quotation marks omitted.) State v. Sandra O.,

51 Conn. App. 463, 468, 724 A.2d 1127 (1999). In the

present case, the court reasonably could have credited

the defendant’s testimony during the hearing on the

plaintiff’s motions that his financial affidavit was ‘‘truthful and honest to the best of [his] knowledge and belief.’’

Particularly, the court reasonably could have credited

the defendant’s candor with the court in pointing the

court to the exact location of the amount claimed by the

plaintiff to be materially misrepresented in the affidavit,

and in submitting his relevant W-2 form and tax returns

to the court and to the plaintiff. In light of the evidence

before the court in ruling on the plaintiff’s motion to

open the judgment on the basis of fraudulent nondisclosure, it was not an abuse of discretion for the court to

conclude that the plaintiff had failed to establish the

existence of probable cause that the defendant had
fraudulently concealed information during the proceedings on his motion for modification of the parties’ educational support order. In concluding that the plaintiff

had failed to meet her burden to establish probable

cause of fraudulent nondisclosure, the court also had

no basis on which to modify, on the basis of fraud, its

judgment on the educational support order. Accordingly, on the basis of the record and the facts before

us, we cannot conclude that the court abused its discretion in denying the plaintiff’s motions to open and to

modify the judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Section 6.1 of the agreement provides in relevant part: ‘‘The Court shall

retain jurisdiction over the issue of the amount of each party’s financial

obligation for [their daughter’s] educational expenses, pursuant to section

46b-56c of the . . . General Statutes. . . .’’

Section 6.4 of the agreement provides: ‘‘The provisions of this section [6]

shall be subject to modification in the same manner as is provided by the

Statutes for any support order and the Court shall retain jurisdiction for

such purpose. In determining whether to modify this order, the Court shall

consider all relevant circumstances at that time, as such are defined in

section 46b-56c of the Statutes.’’

2 The defendant had been earning stock options from Caterpillar, his

employer, since he began working for Caterpillar approximately eighteen

years prior to the June 28, 2017 hearing on his motion to modify.

3 This third category of claims is in reality an attack on the court’s understanding, interpretation and application of the defendant’s financial affidavits

and tax documents provided to the court in connection with its July 12,

2017 educational support order. Specifically, the plaintiff asks this court to

review in relevant part: ‘‘Whether the trial court was correct in holding that

‘[a]t the evidentiary hearing [regarding the educational support order] the

defendant provided the plaintiff with a financial affidavit showing 2016 gross

income of $244,148.’ ’’ ‘‘Whether the trial court understood the implication

in holding that: ‘[o]n the 2016 Form 1040, the defendant’s gross wages and

the proceeds from the sale of his stock options were combined on line

[22].’ ’’ And, ‘‘Whether the trial court understood the argument that, ‘[t]he

defendant’s counsel pointed out in his closing argument at the evidentiary

hearing [regarding the educational support order] that the stock options

were included as assets on the financial affidavit and as income on his

tax returns.’ ’’

Whether the court properly understood the defendant’s financial information is wholly unrelated to the question of whether the defendant fraudulently

concealed information from the court and the plaintiff, which was the sole

basis for the plaintiff’s motions to open and to modify. To the extent that the

plaintiff believes that the information contained in the defendant’s financial

documents does not support the court’s July 12, 2017 educational support

order, her remedy was to appeal from that judgment, something she did

not do. Her motions to open and to modify, based solely on alleged fraudulent

nondisclosures, which we conclude properly were denied by the court,

cannot be used to resurrect arguments that she wished she had made before

the court issued its educational support order or in an appeal from that

judgment. Thus, we decline to review these claims as they are not properly

before us.

4 As a matter of fact, the plaintiff, herself, argues in her reply brief: ‘‘In

the hearing on June 28, 2017, the plaintiff alerted the trial court to the fact

that the defendant did not disclose income from all sources, and specifically,

that he had not disclosed income from stock options on his financial affidavit.

This was evident in plain sight by looking at the defendant’s financial affidavit. This was also evident by comparing the earnings shown on the defendant’s W-2 and his tax returns, to the income disclosed on his financial

affidavit.’’ This statement demonstrates an acknowledgment that this information was available to the plaintiff at the time of the hearing on the

defendant’s motion for modification and that the trial court was aware of

the information before it rendered judgment granting the defendant’s motion.

5 The following exchange occurred between the defendant’s counsel and
the defendant:

‘‘Q. And sir, on your financial affidavit under stocks, bonds, mutual funds—

‘‘A. Uh-huh.

‘‘Q. —do you show that you have Caterpillar stock of about $90,000?

‘‘A. I do.

‘‘Q. And do you have vested stock of another $4,000?

‘‘A. Yes.

‘‘Q. And you have unvested stock that you list at $147,000. Is that correct?

‘‘A. Unvested—

‘‘Q. Right there, the line under—

‘‘A. Yes, I do.

‘‘Q. Okay. And sir, do you also show an E*TRADE various account?

‘‘A. Correct.

‘‘Q. How much was in there?

‘‘A. 268,000.

‘‘Q. Okay. Can you tell me when your stocks vest with Caterpillar, where

do they go?

‘‘A. They go to my E*TRADE account.

‘‘Q. Okay.

‘‘A. And they go into capital shares.

‘‘Q. Okay, and those stocks when they vest, they . . . just automatically

vest. Right?

‘‘A. Automatically vest, as I said, into [Caterpillar] stock.

‘‘Q. Okay, on a certain day?

‘‘A. Correct.

‘‘Q. Okay. So, you do nothing to make that occur?

‘‘A. Nothing at all.

‘‘Q. And it just transfers into your E*TRADE account. Is that correct?

‘‘A. Correct.’’