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2 , 0 0 Conn. App. 1

Karen v. Loftus

CINDY L. KAREN v. WILLIAM P. LOFTUS

(AC 46184)

Clark, Seeley and Prescott, Js.

Syllabus

The plaintiff appealed following the trial court’s denial of her motion to

open the dissolution judgment to allow discovery on her claim that the

defendant had fraudulently procured an arbitration award that was incorporated into that judgment pursuant to statute (§ 46b-66). The plaintiff claimed

that the trial court incorrectly determined that she had failed to establish

probable cause to substantiate her fraud allegations. Held:

The trial court had subject matter jurisdiction to adjudicate the plaintiff’s

motion to open, even though it was filed outside the applicable statutory

(§ 52-420 (b)) time frame.

The trial court improperly denied the plaintiff’s motion to open the judgment

based on fraud, as the plaintiff presented evidence of the defendant’s making

of false statements or his failure to disclose facts, which was sufficient to

establish probable cause to substantiate her claim of fraud, thereby warranting discovery and further proceedings.

Argued January 29—officially released September 17, 2024

Procedural History

Action for the dissolution of a marriage, and for other

relief, brought to the Superior Court in the judicial district of Fairfield, where the court, Hon. Gerard I. Adelman, judge trial referee, approved the stipulation of

the parties to enter into binding arbitration as to certain

disputed matters; thereafter, the arbitrator issued a

decision, and the court, Sommer, J., incorporated the

arbitrator’s decision into its judgment dissolving the

marriage and granted certain other relief in accordance

with the parties’ separation agreement; subsequently,

the court, Hon. Eddie Rodriguez, Jr., judge trial referee,

denied the plaintiff’s motion to open the judgment, and

the plaintiff appealed to this court, Elgo, Suarez and

Palmer, Js., which reversed the trial court’s judgment

and remanded the case for further proceedings; thereafter, the court, Truglia, J., denied the plaintiff’s motion
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Karen v. Loftus

to open the judgment, and the plaintiff appealed to this

court. Reversed; further proceedings.

Thomas J. Rechen, with whom were Charles D. Ray

and, on the brief, Gregory A. Hall, for the appellant

(plaintiff).

Anthony L. Cenatiempo, with whom, on the brief,

was Norman A. Roberts, for the appellee (defendant).

Opinion

PRESCOTT, J. This marital dissolution matter, which

requires the resolution of jurisdictional and merits

related issues arising from the arbitration of a specific

aspect of the parties’ prenuptial agreement, returns to

us for a second time. Following the dissolution of the

parties’ marriage, the plaintiff, Cindy L. Karen, has

endeavored to open that judgment for the limited purpose of allowing discovery with respect to her claim

that the arbitration award, which subsequently was

incorporated into the dissolution judgment, was procured by fraud committed by the defendant, William P.

Loftus.1 In this appeal, the plaintiff claims that the court

improperly denied her motion to open the dissolution

judgment for the limited purpose of conducting discovery after it concluded that she had failed to establish

probable cause that the arbitration award pertaining to

the financial ramifications of the defendant’s departure

from his employment with Merrill Lynch, and its subsequent incorporation into the dissolution judgment, was

obtained by fraud.2 The defendant disagrees with the

merits of the plaintiff’s claim and, additionally, contends

1 The defendant recently commenced a separate action against the plaintiff

alleging vexatious litigation on the basis of the plaintiff’s prosecution of the

motion to open that is the subject of this appeal. See Loftus v. Karen,

Superior Court, judicial district of Fairfield, Docket No. CV-23-6127590-S.

A motion to dismiss filed by the plaintiff was granted by the trial court on

February 26, 2024. 2 See Oneglia v. Oneglia, 14 Conn. App. 267, 540 A.2d 713 (1988).
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Karen v. Loftus

that the trial court lacked subject matter jurisdiction

to consider the plaintiff’s motion to open because her

challenge to the arbitration award was not timely pursuant to General Statutes § 52-420 (b). We are not persuaded by the defendant’s jurisdictional claim and agree

with the plaintiff that the court improperly concluded

that she had failed to establish probable cause as to

her fraud claim.3 Accordingly, we reverse the judgment

denying the plaintiff’s motion to open and remand the

matter for further proceedings.

In our prior decision, we set forth the following relevant facts and procedural history. ‘‘The plaintiff and

the defendant were married in June, 2007. Prior to the

marriage, on May 14, 2007, the parties entered into

a prenuptial agreement . . . . Paragraph 6 (B) of the

[prenuptial] agreement provides: If, at the time that an

action for dissolution of marriage, annulment or legal

separation is commenced, [the defendant] has left his

employment with Merrill Lynch under an arrangement

that is in any fashion tantamount to a sale of his interest

in Merrill Lynch, i.e. a transaction under which [the

defendant] receives any property, real or personal,

including but not limited to a sum of money, by way

of a sign-on bonus or otherwise, a premium bonus, and/

or restricted stock or other ownership interest (Sale

Proceeds), to work for another entity for any reason

3 The defendant also argues that we should not review the plaintiff’s claim

on the basis of inadequate briefing. Specifically, he contends that ‘‘[o]ther

than one reference . . . which did not include the elements of a fraud claim,

the plaintiff’s brief is devoid [of] any analysis of the fraud elements based

upon the evidence submitted in the hearing on the motion to open.’’ In her

reply brief, the plaintiff counters that her principal appellate brief adequately

addressed the ‘‘central issue of this appeal, which is whether [the plaintiff]

established probable cause that [the defendant] lied to the arbitrator,

resulting in an award that was based on his fraud.’’ (Emphasis omitted.)

We agree with the plaintiff. See, e.g., Electrical Contractors, Inc. v. Dept.

of Education, 303 Conn. 402, 444, 35 A.3d 188 (2012); Lafferty v. Jones, 225

Conn. App. 552, 579 n.33, 316 A.3d 742 (2024); State v. Estrella J.C., 169

Conn. App. 56, 81 n.9, 148 A.3d 594 (2016).
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Karen v. Loftus

whatsoever, including his bringing a book of business

and/or a clientele and/or a book of other assets to a

prospective employer, then [the defendant] shall first

be entitled to set aside the value of $75,000, or $75,000

from the Sale Proceeds, and the balance of such Sale

Proceeds, whenever received or receivable by [the

defendant], shall be divided between [the defendant]

and [the plaintiff] according to the Allocation. . . . If

the Sale Proceeds have been invested in other assets,

the Parties shall maintain a record of all such investments, and each Party shall be entitled to the value of

such Sale Proceeds so invested and any proportional

gain or loss that is associated with such investment

according to the Allocation. . . .

‘‘In December, 2014, the plaintiff commenced a dissolution action against the defendant . . . . The parties

disagreed as to whether the defendant’s obligation to

pay the plaintiff pursuant to paragraph 6 (B) was triggered by the specific circumstances surrounding the

defendant’s departure from his employment at Merrill

Lynch. Under this paragraph of the [prenuptial] agreement, if the defendant’s departure from Merrill Lynch

was determined to be tantamount to a sale of his interest

in Merrill Lynch, the plaintiff would be entitled to one

half of the sale proceeds after the defendant set aside

$75,000. If the defendant’s departure from Merrill Lynch

was not tantamount to a sale, however, the plaintiff

would not receive any of the proceeds. On August 1,

2016, the parties entered into [an agreement that clarified the specific schedule and amounts of monthly payments of the defendant’s alimony obligation4 and

4 Specifically, the parties agreed to the following: ‘‘The total amount of

the alimony due the plaintiff from the defendant is $1,500,000 ($8333 per

month times 15 years (180 months). The defendant paid the plaintiff alimony

beginning December, 2014, through and including July, 2016, in the amount

of $189,416. The defendant therefore owes the plaintiff $1,310,584 ($1,500,000

minus $189,416). Beginning on or before August 15, 2016, and on or before

the 15th of each month thereafter, the defendant shall pay the plaintiff $8333

per month through and including July, 2029 (156 months). The defendant’s
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Karen v. Loftus

requested that the court refer] the case to an arbitrator

for resolution of the issue of whether the defendant’s

departure from Merrill Lynch was a sale of his interest

in Merrill Lynch. On that same day, the court, Hon.

Gerard I. Adelman, judge trial referee, accepted the

parties’ [agreement comprised of the statement regarding the timing of alimony payments and their agreement

to arbitrate] and referred the issue of the defendant’s

departure from Merrill Lynch to an arbitrator.

‘‘The parties agreed to have C. Ian McLachlan, a

retired justice of the Connecticut Supreme Court, act

as the arbitrator of their dispute.5 Beginning on February 16, 2017, McLachlan held a two day hearing wherein

both parties testified. On April 27, 2017, McLachlan

issued a decision in which he concluded that the defendant’s departure from Merrill Lynch was not tantamount

to a sale under the [prenuptial] agreement. In his memorandum of decision, McLachlan found that, in October,

2008, sixteen months after the parties were married,

the defendant and three colleagues left Merrill Lynch

and formed a business known as LLBH. Each partner

invested between $10,000 and $15,000 to start LLBH.

final monthly alimony payment in the amount of $2333 shall be paid to the

plaintiff on or before August 15, 2029.’’ 5 The August 1, 2016 agreement to arbitrate provided in relevant part:

‘‘The parties join in asking this court to refer this case to the Honorable

Ian McLachlan (Ret.) to arbitrate and determine the applicability of article

6 of the prenuptial agreement to certain facts presented to Justice McLachlan

by each of the parties. The defendant shall be solely [responsible] for Justice

McLachlan’s fees. . . . Any orders entered pursuant to this paragraph . . .

shall be binding upon the parties and incorporated into the judgment of the

court. Each party acknowledges that (a) he or she is entering the agreement

to arbitrate voluntarily and without coercion; (b) the agreement to arbitrate

is fair and equitable under the circumstances; and (c) the agreement to

arbitrate does not include issues related to child support, visitation and custody.

‘‘Upon the court’s acceptance of the arbitration award . . . the court’s

orders regarding article 6 of the prenuptial agreement shall supersede the

prenuptial agreement and render it null and void after judgment for dissolution of the marriage is entered except as specifically set forth herein.’’
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Karen v. Loftus

Shortly after the business was formed, Focus Financial

(Focus) purchased an option to buy an interest in LLBH

for $2 million, which was shared equally among the

partners. Focus subsequently exercised its option, there

was a corporate reorganization, and Partner Wealth

Management, LLC, was created. When Focus exercised

its option, the defendant received $1,665,000 and 90,000

shares of Focus stock, as well as some options.

‘‘McLachlan further found that, at the time of the

[prenuptial] agreement, the defendant had certain benefits incident to his employment with Merrill Lynch,

including restricted stock units, which he forfeited by

leaving Merrill Lynch. This practice of forfeiture was

very common in the financial services industry and was

one of the reasons that brokers were generally paid a

sign-on bonus when changing jobs by the new employer.

Additionally, brokers were being paid [by their new

employers] for their book of business which, in effect,

represented their customers. The plaintiff and the

defendant negotiated the [prenuptial] agreement, specifically paragraph 6 (B), to account for this possibility.

‘‘Additionally, McLachlan concluded that the evidence did not support the plaintiff’s claim that the

defendant contemplated leaving Merrill Lynch at the

time the [prenuptial] agreement was made. The defendant did not leave Merrill Lynch until sixteen months

after the date of the marriage, and there was no mention

of the defendant starting his own business in the [prenuptial] agreement. Ultimately, McLachlan determined

that paragraph 6 (B) was drafted in contemplation of

the defendant leaving Merrill Lynch and going to a competitor that would compensate him for both the employment benefits that he was forfeiting from Merrill Lynch

and the contracts and business that he would bring to

the new company. Instead, the defendant left Merrill

Lynch to start his own company and invested his own

money into the venture. An option to invest in that new
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Karen v. Loftus

venture was sold, and more than one year later, the

business created by the venture itself was sold.

According to McLachlan, this scenario is substantially

different than the situation where an employee leaves

a brokerage house and is compensated by the new

employer.’’ (Footnotes added; internal quotation marks

omitted.) Karen v. Loftus, 210 Conn. App. 289, 291–94,

270 A.3d 126 (2022).

On May 12, 2017, the plaintiff filed a motion to confirm

the arbitration award, which the court subsequently

granted. On June 16, 2017, the trial court, Sommer, J.,

incorporated (1) the terms of the prenuptial agreement

with respect to the division of real estate, personal

property, debts and liabilities, (2) the August 1, 2016

agreement, which the court found to be fair and equitable, regarding the timing of the defendant’s alimony

payments to the plaintiff, and (3) McLachlan’s arbitration award into a final judgment of dissolution. Id., 294.

On April 3, 2018, the plaintiff filed a motion to open

the dissolution judgment on the ground that the defendant had made fraudulent representations and failed to

disclose material facts to McLachlan during the arbitration. Specifically, she claimed that the defendant’s contentions that LLBH was a new business, and that business was not sold to Focus when he and his partners left

Merrill Lynch, were ‘‘wholly contradicted by evidence

presented in a subsequent trial concerning the same

business . . . .’’ The plaintiff further alleged that the

defendant’s representations to McLachlan that (1) when

leaving Merrill Lynch, he did not contemplate taking

his contacts and clients with him to LLBH, (2) the defendant and his partners did not contemplate an agreement

with Focus until after the May 14, 2007 execution of

the prenuptial agreement, and (3) the agreement and

transaction with Focus did not constitute a sale, were

materially false. ‘‘The essence of the plaintiff’s argument

in her motion to open is that the defendant testified
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Karen v. Loftus

falsely during the arbitration and that McLachlan relied

on the purportedly false testimony in concluding that

paragraph 6 (B) [of the prenuptial agreement] did not

apply to the defendant’s departure from Merrill Lynch

to form LLBH.’’ Karen v. Loftus, supra, 210 Conn.

App. 294–95.

After additional filings by the parties, the court, Hon.

Eddie Rodriguez, Jr., judge trial referee, held a hearing

on May 6, 2019, to consider the plaintiff’s motion to

open the dissolution judgment. Id., 296. The purpose

of this hearing was to determine whether a sufficient

basis existed to open the judgment for the limited purpose of proceeding with discovery on the allegations

of fraud set forth by the plaintiff. See Spilke v. Spilke,

116 Conn. App. 590, 593–94 and n.6, 976 A.2d 69, cert.

denied, 294 Conn. 918, 984 A.2d 68 (2009); Oneglia v.

Oneglia, 14 Conn. App. 267, 269–70, 540 A.2d 713 (1988).

On September 25, 2019, the court denied the plaintiff’s

motion to open, stating in relevant part: ‘‘[T]he plaintiff

is mistakenly claiming a second bite at the apple. She

is attempting to open a judgment by filing a motion

which is well beyond [the] permissible four [month]

window to open civil judgments and she is claiming

fraud. The exception to opening judgments outside of

the initial four months does not apply to cases where

a party wants to [relitigate] issues already litigated and

decided. She seeks to reopen the judgment and obtain

a new trial based on what she attempts to characterize

as newly discovered evidence. However the evidence

she references as newly discovered is evidence which

was available during the arbitration and it would have

been cumulative of the evidence offered at the arbitration. The plaintiff’s claim fails because the evidence

relied upon was not in fact newly discovered evidence

and the plaintiff has failed to demonstrate that the evidence could not have been discovered and produced

at the former trial by the exercise of due diligence.
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Karen v. Loftus

Also, it does not appear to this court that a different

result would be had at another trial.’’ (Internal quotation

marks omitted.) Karen v. Loftus, supra, 210 Conn.

App. 296.

The plaintiff then appealed to this court from the

denial of her motion to open, claiming that the trial

court had utilized an incorrect legal standard when it

rejected her claim. Id., 296–97. We agreed and identified

the proper standard as follows: ‘‘[T]he court was

required to make a preliminary determination of

whether there was probable cause to believe that the

judgment was obtained by fraud before it could consider the merits of the claim. If the court found probable

cause to believe that the judgment was obtained by

fraud, then the court was required to conduct an evidentiary hearing to determine whether, in fact, there was

fraud.’’ Id., 302. As a result of the trial court’s failure

to make this preliminary determination, we reversed

the judgment and remanded the case for further proceedings. Id., 303.

Pursuant to our remand, the court, Truglia, J., held

a hearing on September 9, 2022, and January 4 and 5,

2023, for the purpose of determining whether probable

cause existed to open the judgment for the limited purpose of proceeding with discovery as to the plaintiff’s

claim of fraud. After hearing testimony and considering

the submitted exhibits, the court orally denied the plaintiff’s motion, stating that it did not ‘‘see any fraud . . .

any fraud whatsoever [and that] [t]here’s no proof,

there’s no compelling evidence that [the defendant]

misled . . . McLachlan.’’ (Emphasis added.) On February 1, 2023, the court issued a ‘‘statement of decision’’

that contained a brief synopsis of the case and concluded that it had ‘‘found no evidence of fraud.’’ This

appeal followed.6 Additional facts will be set forth as

necessary.

6 On May 23, 2023, the plaintiff moved for an articulation of the denial of

her motion to open. The trial court denied this motion on June 6, 2023.
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Karen v. Loftus

On appeal, the plaintiff claims that the trial court

improperly concluded that she had failed to establish

probable cause that the arbitration award, which subsequently was incorporated into the judgment of dissolution, was obtained by fraud. Specifically, the plaintiff

argues that she presented ample evidence of the defendant’s misrepresentations and failure to disclose material facts and evidence to McLachlan that resulted in

the defendant’s fraudulently obtaining an arbitration

award in his favor. The defendant counters that the

trial court lacked jurisdiction to consider the plaintiff’s

motion to open and, in the alternative, properly denied

the plaintiff’s motion to open. We disagree with the

defendant’s arguments and conclude that the court

improperly determined that the plaintiff had failed to

meet her preliminary burden of demonstrating that

probable cause existed to warrant discovery and an

evidentiary hearing as to her allegation of fraud.

I

Before considering the merits of this appeal, we must

first address the defendant’s claim that the trial court

lacked subject matter jurisdiction over the plaintiff’s

motion to open the judgment. Specifically, he argues

that the plaintiff’s April 3, 2018 motion to open constitutes an untimely attempt to vacate the April 27, 2017

arbitration award and that, consequently, the trial court

did not have jurisdiction to consider it pursuant to § 52-

420 (b). In her reply brief, the plaintiff responds that,

under the facts and circumstances of this case, where

the court incorporated the arbitration award into the

terms of a judgment of dissolution, General Statutes

§ 46b-66 (e) provides the basis for the trial court to

consider her motion and claim of fraud related to the

arbitration. We conclude that the court had subject

Thereafter, the plaintiff filed a motion for review with this court. On July

19, 2023, we granted review but denied the relief requested.
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Karen v. Loftus

matter jurisdiction to adjudicate the plaintiff’s motion

to open.

We begin our analysis of this issue by setting forth

the relevant legal principles regarding the opening of

a dissolution judgment based on fraud. It is a well established principle that a court has the inherent authority

to open a judgment, subject to certain limitations. See,

e.g., Jonas v. Playhouse Square Condominium Assn.,

Inc., 173 Conn. App. 36, 39, 161 A.3d 1288 (2017).

‘‘Within four months of the date of the original judgment, Practice Book [§ 17-4] vests discretion in the trial

court to determine whether there is a good and compelling reason for its modification or vacation.’’ (Internal

quotation marks omitted.) McGovern v. McGovern, 217

Conn. App. 636, 645–46, 289 A.3d 1255, cert. denied,

346 Conn. 1018, 295 A.3d 111 (2023); see also General

Statutes § 52-212a;7 Hebrand v. Hebrand, 216 Conn.

App. 210, 220–21, 284 A.3d 702 (2022).

This rule serves to further the compelling interest in

the finality of judgments. Strauss v. Strauss, 220 Conn.

App. 193, 203–204, 297 A.3d 581, cert. denied, 348 Conn.

914, 303 A.3d 602 (2023). ‘‘Finality of litigation is essential so that parties may rely on judgments in ordering

their private affairs and so that the moral force of court

judgments will not be undermined. The law favors finality of judgments . . . . This court has emphasized that

due consideration of the finality of judgments is

important and that judgments should only be set aside

or opened for a strong and compelling reason. . . . It

7 General Statutes § 52-212a (a) provides in relevant part: ‘‘Unless otherwise provided by law and except in such cases in which the court has

continuing jurisdiction, a civil judgment or decree rendered in the Superior

Court may not be opened or set aside unless a motion to open or set aside

is filed within four months following the date on which the notice of judgment

or decree was sent . . . .’’ Practice Book § 17-4 (a) essentially mirrors the

language of § 52-212a (a). See Fitzsimons v. Fitzsimons, 116 Conn. App.

449, 454–55, 975 A.2d 729 (2009).
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Karen v. Loftus

is in the interest of the public as well as that of the

parties [that] there must be fixed a time after the expiration of which the controversy is to be regarded as settled

and the parties freed of obligation to act further in

the matter by virtue of having been summoned into or

having appeared in the case. . . . Without such a rule,

no judgment could be relied on.’’ (Internal quotation

marks omitted.) Id., 204; see also Bruno v. Bruno, 146

Conn. App. 214, 229, 76 A.3d 725 (2013).

Our appellate courts, however, have recognized that

§ 52-212a ‘‘does not abrogate the court’s common-law

authority to open a judgment beyond the four month

limitation upon a showing that the judgment was

obtained by fraud, duress or mutual mistake. . . . The

common-law reasons for opening a judgment seek to

preserve fairness and equity.’’ (Citation omitted; internal quotation marks omitted.) Bruno v. Bruno, supra,

146 Conn. App. 230; see also Conroy v. Idlibi, 343 Conn.

201, 205, 272 A.3d 1121 (2022) (fraud is exception to

four month limitation for motion to open judgment);

Veneziano v. Veneziano, 205 Conn. App. 718, 726, 259

A.3d 28 (2021) (although motion to open normally must

be filed within four months of entry of judgment, motion

to open based on fraud is not subject to this limitation).

Our Supreme Court specifically has recognized that

a marital dissolution judgment based on a stipulation

between the parties may be opened if the stipulation,

and thus the judgment, was obtained by fraud. See, e.g.,

Reville v. Reville, 312 Conn. 428, 440–41, 93 A.3d 1076

(2014); Weinstein v. Weinstein, 275 Conn. 671, 685, 882

A.2d 53 (2005); Billington v. Billington, 220 Conn. 212,

217–18, 595 A.2d 1377 (1991).

We now turn to the defendant’s specific jurisdictional

claim, made for the first time in this appeal.8 He argues

8 A claim that a court lacks subject matter jurisdiction may be raised at

any time during the proceedings, including on appeal. See, e.g., Mention v.

Kensington Square Apartments, 214 Conn. App. 720, 727, 280 A.3d 1195

(2022); Parisi v. Niblett, 199 Conn. App. 761, 768, 238 A.3d 740 (2020).
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Karen v. Loftus

that the plaintiff’s challenge to the underlying arbitration award was untimely because she did not file an

application to vacate the award within thirty days of

the issuance of notice of the award. As a result, the

defendant contends that the trial court lacked subject

matter jurisdiction to open the judgment that incorporated the arbitration award pursuant to § 52-420 (b). As

factual support for this argument, he notes that McLachlan issued his award on April 27, 2017, which the court,

Sommer, J., then incorporated into the judgment of

dissolution on June 16, 2017, and that the plaintiff did

not move to open that dissolution judgment based on

her claim of fraud until April 3, 2018.

‘‘[S]ubject matter jurisdiction involves the authority

of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it

is without jurisdiction . . . . Furthermore, [j]urisdiction of the [subject matter] is the power [of the court]

to hear and determine cases of the general class to

which the proceedings in question belong. . . . A court

has subject matter jurisdiction if it has the authority

to adjudicate a particular type of legal controversy.’’

(Citation omitted; internal quotation marks omitted.) A

Better Way Wholesale Autos, Inc. v. Saint Paul, 338

Conn. 651, 658, 258 A.3d 1244 (2021); see also Bloomfield v. United Electrical, Radio & Machine Workers

of America, Connecticut Independent Police Union,

Local 14, 285 Conn. 278, 286, 939 A.2d 561 (2008); Petrucelli v. Travelers Property Casualty Ins. Co., 146 Conn.

App. 631, 640, 79 A.3d 895 (2013), cert. denied, 311

Conn. 909, 83 A.3d 1164 (2014). Stated differently, ‘‘[a]

court does not truly lack subject matter jurisdiction if

it has competence to entertain the action before it.’’

Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819,

appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed.

2d 14 (1979).
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Karen v. Loftus

Under the circumstances in the present case, the

question of whether the court lacked jurisdiction over

the motion to open is a question of law because it

requires us to interpret the statutory provisions relied

on by the parties. See, e.g., Davis v. Davis, 200 Conn.

App. 180, 201, 238 A.3d 46, cert. denied, 335 Conn. 977,

241 A.3d 130 (2020); Malpeso v. Malpeso, 165 Conn.

App. 151, 165, 138 A.3d 1069 (2016). Moreover, we note

that there are no jurisdictional facts in dispute regarding

the defendant’s subject matter jurisdictional claim that

would require adjudication by the trial court. See, e.g.,

Sessa v. Reale, 213 Conn. App. 151, 158, 278 A.3d 44

(2022); cf. Conboy v. State, 292 Conn. 642, 652–53, 974

A.2d 669 (2009) (if question of jurisdiction is intertwined

with merits of case, court cannot resolve jurisdictional

question without evidentiary hearing).

We turn then to the relevant statutory provisions.

Section 52-420 (b) provides that ‘‘[n]o motion to vacate,

modify or correct an award may be made after thirty

days from the notice of the award to the party to the

arbitration who makes the motion.’’ Our Supreme Court

repeatedly has held that the trial court lacks subject

matter jurisdiction over a motion not filed within this

thirty day time period. See, e.g., A Better Way Wholesale

Autos, Inc. v. Saint Paul, supra, 338 Conn. 659; Bloomfield v. United Electrical, Radio & Machine Workers

of America, Connecticut Independent Police Union,

Local 14, supra, 285 Conn. 292–93. Stated differently,

‘‘[t]he only jurisdictional requirement in filing a motion

to vacate an arbitration award is that it be filed with

the trial court within thirty days of the moving party’s

notice of the arbitration award.’’ Middlesex Ins. Co. v.

Castellano, 225 Conn. 339, 345, 623 A.2d 55 (1993).

Our Supreme Court’s decision in Wu v. Chang, 264

Conn. 307, 823 A.2d 1197 (2003), warrants discussion

because the court in that case addressed whether an

arbitration award could be attacked outside the thirty
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day time period of § 52-420 (b) if the party alleges that

the award was obtained through fraud. In Wu, the parties had formed several companies as vehicles for their

investments in hotel and condominium properties,

which ultimately led to financial losses. Id., 308. Disputes arose, and the defendant commenced a civil

action against one of the plaintiffs, alleging improprieties in his management of the companies. Id.

After an unsuccessful attempt at mediation, the parties agreed to sell the assets of the companies and

have their respective shares conclusively determined

by binding, nonappealable arbitration. Id., 308–309. The

arbitrator determined that the respective share of each

party in the proceeds from the sale of assets would be

equal to their respective capital contributions. Id., 309.

Notice of the arbitration award was sent to the parties. Id.

After receiving the arbitration award, the plaintiffs

filed an application to confirm the arbitration award

pursuant to General Statutes § 52-417.9 Id. The defendant objected on the basis of fraud by one of the plaintiffs, and the court treated the defendant’s objection as

a motion to vacate the arbitration award10 under § 52-

9 General Statutes § 52-417 provides in relevant part: ‘‘At any time within

one year after an award has been rendered and the parties to the arbitration

notified thereof, any party to the arbitration may make application to the

superior court . . . for an order confirming the award. The court or judge

shall grant such an order confirming the award unless the award is vacated,

modified or corrected as prescribed in sections 52-418 and 52-419.’’ 10 General Statutes § 52-418 provides in relevant part: ‘‘(a) Upon the application of any party to an arbitration, the superior court . . . shall make an

order vacating the award if it finds any of the following defects: (1) If the

award has been procured by corruption, fraud or undue means; (2) if there

has been evident partiality or corruption on the part of any arbitrator; (3)

if the arbitrators have been guilty of misconduct in refusing to postpone

the hearing upon sufficient cause shown or in refusing to hear evidence

pertinent and material to the controversy or of any other action by which

the rights of any party have been prejudiced; or (4) if the arbitrators have

exceeded their powers or so imperfectly executed them that a mutual, final

and definite award upon the subject matter submitted was not made.

‘‘(b) If an award is vacated and the time within which the award is required
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420.11 Id., 309–10. The court denied the defendant’s

motion to vacate, concluding that it lacked subject matter jurisdiction, as the motion had not been filed within

the thirty day period set forth in § 52-420 (b). Id., 310.

The defendant appealed, claiming that ‘‘the thirty day

limitation period set forth in § 52-420 (b) was tolled by

his claim of fraud and, consequently, the trial court

improperly concluded that it lacked jurisdiction to

entertain his motion to vacate.’’ Id.

Our Supreme Court first explained that the trial court

properly granted the plaintiffs’ timely motion to confirm

the arbitration award because the defendant’s motion to

vacate had not been filed within the thirty day limitation

period of § 52-420 (b). Id., 312. It then turned to the

defendant’s contention that fraud tolled this time

period. Id. In rejecting this argument, the court stated:

‘‘Chapter 909 of the General Statutes, General Statutes

§§ 52-408 through 52-424, controls arbitration in this

state whe[n] the common law is inconsistent with our

statutory scheme. . . . The statutory arbitration

scheme encompasses many aspects of the arbitration

process . . . . Thus, it is evident that the legislature’s

purpose in enacting the statutory scheme was to displace many [common-law] rules. . . . The statutory

to be rendered has not expired, the court or judge may direct a rehearing

by the arbitrators. . . .’’ 11 General Statutes § 52-420 provides: ‘‘(a) Any application under section

52-417, 52-418 or 52-419 shall be heard in the manner provided by law for

hearing written motions at a short calendar session, or otherwise as the

court or judge may direct, in order to dispose of the case with the least

possible delay.

‘‘(b) No motion to vacate, modify or correct an award may be made after

thirty days from the notice of the award to the party to the arbitration who

makes the motion.

‘‘(c) For the purpose of a motion to vacate, modify or correct an award,

such an order staying any proceedings of the adverse party to enforce the

award shall be made as may be deemed necessary. Upon the granting of

an order confirming, modifying or correcting an award, a judgment or decree

shall be entered in conformity therewith by the court or judge granting

the order.’’
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framework governing the arbitration process expressly

covers claims of fraud. Specifically . . . § 52-418 (a)

requires a court to make an order vacating [an arbitration] award if it finds . . . [that] the award has been

procured by corruption, fraud or undue means . . . .

Under § 52-420 (b), however, a party seeking an order

to vacate an arbitration award on grounds of corruption,

fraud or undue means—or on any other ground set forth

in § 52-418—must do so within the thirty day limitation

period set forth in § 52-420 (b). In other words, once

the thirty day limitation period of § 52-420 (b) has

passed, the award may not thereafter be attacked on

any of the grounds specified in . . . § 52-418 . . .

including fraud. To conclude otherwise would be contrary not only to the clear intent of the legislature as

expressed in §§ 52-417, 52-418 and 52-420 (b), but also

to a primary goal of arbitration, namely, the efficient,

economical and expeditious resolution of private disputes.’’ (Citations omitted; emphasis omitted; internal

quotation marks omitted.) Id., 312–13.

Ultimately, our Supreme Court agreed with the reasoning of the trial court that a motion to vacate an

arbitration award based on any of the grounds set forth

in § 52-418, including fraud, must be filed within the

thirty day period in order for the court to have subject

matter jurisdiction. Id., 313–14. It is clear, therefore,

that a trial court in most cases lacks subject matter

jurisdiction to consider a motion to vacate an arbitration award based on a claim of fraud filed outside of

the thirty day time period of § 52-420 (b).12

12 See, e.g., A Better Way Wholesale Autos, Inc. v. Saint Paul, supra, 338

Conn. 659 (expiration of limitation period of § 52-420 (b) deprives trial court

of subject matter jurisdiction over any ground to vacate arbitration award

even if such ground to vacate is raised in opposition to prevailing party’s

application to confirm award); Bloomfield v. United Electrical, Radio &

Machine Workers of America, Connecticut Independent Police Union, Local

14, supra, 285 Conn. 285–86 (thirty day limitation period of § 52-420 (b)

applies to application to vacate arbitration awards on public policy grounds);

Rosenthal Law Firm, LLC v. Cohen, 165 Conn. App. 467, 471, 139 A.3d 774

(thirty day limitation period to file motion to vacate arbitration award applies
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Salutary policy reasons typically support the strict

time requirements that limit a party’s ability to attack

an arbitration award. As a general rule, ‘‘[a]rbitration

is favored by courts as a means of settling differences

and expediting the resolution of disputes. . . . There

is no question that arbitration awards are generally

upheld and that we give great deference to an arbitrator’s decisions since arbitration is favored as a means of

settling disputes.’’ (Internal quotation marks omitted.)

Clasby v. Zimmerman, 191 Conn. App. 143, 155, 213

A.3d 1144, cert. denied, 333 Conn. 919, 217 A.3d 1 (2019);

see also Garrity v. McCaskey, 223 Conn. 1, 4, 612 A.2d

742 (1992); Jenkins v. Jenkins, 186 Conn. App. 641,

645, 200 A.3d 1193 (2018). ‘‘The core principles of Connecticut’s arbitration law are set forth in . . . §§ 52-

408 through 52-424. . . . [Section] 52-417 provides that

in ruling on an application to confirm an arbitration

award [t]he court or judge shall grant such an order

confirming the award unless the award is vacated, modified or corrected as prescribed in [General Statutes §§]

52-418 and 52-419. . . . The trial court lacks any discretion in confirming the arbitration award unless the

award suffers from any of the defects described in . . .

§§ 52-418 and 52-419.’’ (Citation omitted; emphasis

omitted; footnotes omitted; internal quotation marks

omitted.) Clasby v. Zimmerman, supra, 156–57.

Additionally, our Supreme Court has explained:

‘‘Judicial review of arbitral decisions is narrowly confined. . . . When the parties agree to arbitration and

establish the authority of the arbitrator through the

terms of their submission, the extent of our judicial

to grounds enumerated in § 52-418 as well as common-law ground such as

claimed violation of public policy), cert. denied, 322 Conn. 904, 138 A.3d

933 (2016); Amalgamated Transit Union Local 1588 v. Laidlaw Transit,

Inc., 33 Conn. App. 1, 4, 632 A.2d 713 (1993) (if motion to vacate, modify

or correct is not made within thirty day limitation period of § 52-420 (b),

award may not be attacked thereafter on any ground specified in § 52-418

or § 52-419).
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review of the award is delineated by the scope of the

parties’ agreement. . . . Because we favor arbitration

as a means of settling private disputes, we undertake

judicial review of arbitration awards in a manner

designed to minimize interference with an efficient and

economical system of alternative dispute resolution.

...

‘‘Where the submission does not otherwise state, the

arbitrators are empowered to decide factual and legal

questions and an award cannot be vacated on the

grounds that . . . the interpretation of the agreement

by the arbitrators was erroneous. Courts will not review

the evidence nor, where the submission is unrestricted,

will they review the arbitrators’ decision of the legal

questions involved. . . .

‘‘Even in the case of an unrestricted submission, we

have . . . recognized three grounds for vacating an

award: (1) the award rules on the constitutionality of

a statute . . . (2) the award violates clear public policy . . . [and] (3) the award contravenes one or more

of the statutory proscriptions of § 52-418.’’ (Emphasis

added; internal quotation marks omitted.) Economos v.

Liljedahl Bros., Inc., 279 Conn. 300, 305–306, 901 A.2d

1198 (2006); see also Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 273 Conn. 86,

93–94, 868 A.2d 47 (2005). The plaintiff has not raised

a constitutional or public policy challenge to the arbitration award. Thus, in most contexts, the plaintiff’s ability

to raise her claim of fraud as to the arbitration process

would be closed after the expiration of the thirty day

period set forth in § 52-420 (b).

In proceedings such as the present case, however,

in which an arbitration award is incorporated into a

marital dissolution judgment rendered by the trial court,

competing policies exist that are inherent in the statutes

that apply to family matters. We start with a review
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of General Statutes § 46b-66. That statute governs the

approval of agreements by the parties to resolve their

marital dissolution proceeding. Subsection (a) of this

statute13 requires the trial court to determine, as a preliminary matter, that a dissolution settlement agreement is fair and equitable. Roos v. Roos, 84 Conn. App.

415, 419, 853 A.2d 642 (§ 46b-66 (a) specifically grants

court authority to incorporate by reference into its judgment of dissolution separation agreement reached by

parties if it is determined to be fair and equitable), cert.

denied, 271 Conn. 936, 861 A.2d 510 (2004); see also

Costello v. Costello, 186 Conn. 773, 776, 443 A.2d 1282

(1982) (court has affirmative duty to ascertain whether

parties’ settlement agreement is fair, equitable, and has

been knowingly agreed upon). Subsection (c) provides

in relevant part that, ‘‘[i]f the court finds the agreement

fair and equitable, it shall become part of the court file,

and if the agreement is in writing, it shall be incorporated by reference into the order or decree of the court.

If the court finds the agreement is not fair and equitable,

it shall make such orders as to finances and custody

as the circumstances require . . . .’’ General Statutes

§ 46b-66 (c). This type of judicial review regarding the

private resolution of a dispute generally is not part of

the process for other types of civil litigation. See Brycki

v. Brycki, 91 Conn. App. 579, 587, 881 A.2d 1056 (2005)

(requirement that court must determine whether separation agreement is fair and equitable described as

‘‘peculiar to settlement agreements in the area of family law’’).

13 General Statutes § 46b-66 (a) provides in relevant part: ‘‘[I]n any case

under this chapter where the parties have submitted to the court a final

agreement concerning the custody, care, education, visitation, maintenance

or support of any of their children or concerning alimony or the disposition

of property, the court shall inquire into the financial resources and actual

needs of the parties and their respective fitness to have physical custody

of or rights of visitation with any minor child, in order to determine whether

the agreement of the parties is fair and equitable under all the circumstances.’’
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We next turn to subsection (e) of § 46b-66,14 which

provides in relevant part: ‘‘The provisions of chapter

909 [§§ 52-408 through 52-424] shall be applicable to

any agreement to arbitrate in an action for dissolution

of marriage under this chapter . . . . An arbitration

award in such action shall not be enforceable until it

has been confirmed, modified or vacated in accordance

with the provisions of chapter 909 and incorporated into

an order or decree of court in an action for dissolution

of marriage between the parties. . . . An arbitration

award relating to a dissolution of marriage that is

incorporated into an order or decree of the court shall

be enforceable and modifiable to the same extent as

an agreement of the parties that is incorporated into

an order or decree of the court pursuant to subsection

(c) of this section.’’ (Emphasis added.)

Pursuant to this statutory language, the parties may

choose to use arbitration as a means to resolve some

or even all of the disputed financial and custody issues

relating to the dissolution of their marriage. If they

choose to do so, the court must first find that the agreement to arbitrate was entered into voluntarily and is

14 We are cognizant that the pertinent provisions of subsection (e) of § 46b66 were enacted after the arbitration proceedings and the filing of the motion

to open in the present case. Number 21-104, § 21, of the 2021 Public Acts

amended § 46b-66, effective June 28, 2021, by, inter alia, moving subsection

(c) to subsection (e), and adding the following language: ‘‘An arbitration

award relating to a dissolution of marriage that is incorporated into an order

or decree of the court shall be enforceable and modifiable to the same

extent as an agreement of the parties that is incorporated into an order or

decree of the court pursuant to subsection (c) of this section.’’ General

Statutes § 46b-66 (e).

In our view, it is appropriate to rely on this provision in resolving the

present case because the statute simply clarifies, among other things, that,

if the parties’ final agreement to resolve their dissolution proceeding contains

an arbitration award embedded in that agreement, the parties’ agreement

is subject to the same review and approval process set forth in subsection

(c) of § 46b-66. Moreover, the legislature did not limit the applicability of

this provision only to final agreements entered into after the effective date

of the public act.
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fair and equitable under the circumstances. If the court

permits the arbitration, that arbitration is conducted in

accordance with the provisions of chapter 909 of the

General Statutes. Finally, subsection (e) provides that

an arbitration award that is incorporated into an order

or decree of the court is enforceable and modifiable

to same extent as an agreement of the parties that is

incorporated into an order or decree of the court pursuant to subsection (c) of § 46b-66. Therefore, arbitration

awards are subject to enforcement and modification

as any other aspect of the dissolution judgment. By

implication, because a judgment of dissolution may be

opened on the basis of fraud, an arbitration award in

this context may be opened outside of the thirty day

limit of § 52-420 (b) for fraud. Stated differently, unlike

arbitration awards in other civil contexts, arbitration

awards in dissolution matters must be made part of a

dissolution judgment pursuant to § 46b-66 (e) and may

be subject to modification or later attack under appropriate circumstances.

Principles of statutory construction further inform

our analysis. As §§ 46b-66 and 52-420 (b) relate to the

same subject matter, we presume that the legislature

intended to create a harmonious and consistent body

of law, and we must consider the broader statutory

scheme to ensure the coherency of our construction.

See LaFrance v. Lodmell, 322 Conn. 828, 837–38, 144

A.3d 373 (2016); see also Independent Party of CT—

State Central v. Merrill, 330 Conn. 681, 706, 200 A.3d

1118 (2019); Langello v. West Haven Board of Education, 142 Conn. App. 248, 258, 65 A.3d 1 (2013). In doing

so, we conclude that the time limitation of § 52-420 (b)

does not apply in situations where an arbitration award

in a dissolution proceeding has been obtained by fraud

and made part of the dissolution judgment pursuant to

§ 46b-66 (e). A contrary result might permit such fraud

to invidiously invade and infect the court’s statutorily
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required determination regarding the fairness and equitable nature of a final agreement of the parties. In other

words, to allow an arbitration award obtained by fraud

discovered outside of the very short time limitation

imposed by § 52-420 (b) may severely undermine, if not

eviscerate, the judicial review requirements of § 46b66. As a result, such fraud may cause the corruption

of the other aspects of a court’s financial orders and

fracture the mosaic of the dissolution judgment in a

case in which the arbitration award is embedded in the

parties’ final agreement.

Further, in construing these statutes together, it is

important to remember that marital dissolution proceedings are essentially equitable in nature. Leonova v.

Leonov, 201 Conn. App. 285, 304, 242 A.3d 713 (2020),

cert. denied, 336 Conn. 906, 244 A.3d 146 (2021). For

example, in Foisie v. Foisie, 335 Conn. 525, 239 A.3d

1198 (2020), our Supreme Court described the opening

of a dissolution judgment for the purpose of reconsidering financial orders on the basis of an allegation of

fraud as follows: ‘‘[I]n family matters, the court exercises its equitable powers. . . . While an action for

divorce or dissolution of marriage is a creature of statute, it is essentially equitable in its nature. . . . The

trial court has considerable discretion to balance equities in a dissolution proceeding. . . . The power to act

equitably is the keystone to the court’s ability to fashion

relief in the infinite variety of circumstances which arise

out of the dissolution of a marriage. Without this wide

discretion and broad equitable power, the courts in

some cases might be unable fairly to resolve the parties’

dispute . . . . For that reason, equitable remedies are

not bound by formula but are molded to the needs of

justice. . . . [I]n some situations, the principle of protection of the finality of judgments must give way to

the principle of fairness and equity.’’ (Citations omitted;

internal quotation marks omitted.) Id., 543–44; see also
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Baker v. Baker, 187 Conn. 315, 323, 445 A.2d 912 (1982)

(trial court in dissolution of marriage action sits as

court of law and of equity). Simply stated, the only

remedy available to a defrauded party in a marital dissolution case is to have the court open and reconsider

the judgment as a matter of equity. Weiss v. Weiss, 297

Conn. 446, 467 n.15, 998 A.2d 766 (2010).

Marital dissolution cases also have unique requirements for full and frank disclosure of relevant information between the parties and to the court. To achieve the

goal of private settlements, with judicial supervision, of

financial disputes between estranged marital partners,

reasonable settlements that have been knowingly

agreed upon are essential, and this can occur only when

the parties engage in full and frank disclosure to

ensure each side has all the essential information necessary. Weinstein v. Weinstein, supra, 275 Conn. 686–

87. As such, in dissolution proceedings, ‘‘[t]he presiding

judge has the obligation to conduct a searching inquiry

to make sure that the settlement agreement is substantively fair and has been knowingly negotiated. . . .

Pivotal to the validity of such an inquiry is the absolute

accuracy of the financial information furnished by

the parties to one another and the court.’’ (Citations

omitted; emphasis added; internal quotation marks

omitted.) Jucker v. Jucker, 190 Conn. 674, 676, 461 A.2d

1384 (1983); see also Dougan v. Dougan, 301 Conn. 361,

370–71, 21 A.3d 791 (2011); Baker v. Baker, supra, 187

Conn. 321–22.

Our Supreme Court has explained that the 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 [arm’s]

length. Whatever honesty there may, or should, have
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Karen v. Loftus

been during the marriage should at least be required

at its end.’’ (Citation omitted; internal quotation marks

omitted.) Billington v. Billington, supra, 220 Conn. 221.

Further, this court has observed that, ‘‘[u]nlike civil

litigants who stand at arm’s length from one another,

marital litigants have a duty of full and frank disclosure

analogous to the relationship of fiduciary to beneficiary

. . . .’’ (Internal quotation marks omitted.) Mensah v.

Mensah, 145 Conn. App. 644, 652, 75 A.3d 92 (2013).

These equitable concerns do not apply with the same

vigor to arbitration proceedings that occur in commercial and other civil contexts.15

15 We acknowledge that our Supreme Court’s decision in Blondeau v.

Baltierra, 337 Conn. 127, 136, 252 A.3d 317 (2020), includes language that

could be read, in isolation, as inconsistent with our analysis in the present

case. In Blondeau, a marital dissolution action, the defendant appealed from

the judgment of the trial court granting the motion of the plaintiff to vacate

an arbitration award and denying the defendant’s corresponding motion to

confirm the arbitration award. Id., 133. The arbitration award, pursuant to

the submission, resolved various issues relating to the division of marital

assets and child support. Id., 132–33.

On appeal, the plaintiff claimed that the Supreme Court lacked subject

matter jurisdiction over an appeal taken from an order vacating an arbitration

award that included issues related to child support. Id., 135. As the court

explained, ‘‘[t]he plaintiff’s jurisdictional argument seizes on the proviso in

§ 46b-66 (c) stating that the arbitration statutes, including the right to appeal

under [General Statutes] § 52-423 of chapter 909, are applicable in a marital

dissolution action ‘provided . . . such agreement and an arbitration pursuant to such agreement shall not include issues related to child support,

visitation and custody.’ The plaintiff contends, in other words, that § 46b66 (c) contains a condition precedent categorically excluding from the scope

of cases subject to appeal any trial court order vacating or confirming an

arbitration award that includes ‘issues related to child support, visitation

and custody.’ ’’ Id., 136.

In rejecting the plaintiff’s argument in Blondeau, our Supreme Court first

generally observed that ‘‘[t]he fact that the arbitration at issue involves a

marital dissolution is of no consequence’’ and then noted that § 46b-66

(c) expressly provides that the arbitration statutes apply to arbitrations

occurring in the context of a marital dissolution action. Id. The Supreme

Court also noted that the final judgment in an arbitration proceeding generally is the order of the court vacating, modifying or confirming the arbitrator’s

award, regardless of whether the arbitration at issue involves a marital

dissolution. Id. Specifically, the court explained that ‘‘[t]he restriction contained in § 46b-66 (c) [did] not operate as a categorical condition on a party’s
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For these reasons, we conclude that the thirty day

time limitation imposed by § 52-420 (b) does not apply

in the present case. A contrary conclusion would run

afoul of our ‘‘strong policy that the private settlement

of the financial affairs of estranged marital partners is

a goal that courts should support rather than undermine. . . . Our support of that goal will be effective

only if we instill confidence in marital litigants that we

require, as a concomitant of the settlement process,

such full and frank disclosure from both sides, for then

they will be more willing to [forgo] their combat and

to settle their dispute privately, secure in the knowledge

that they have all the essential information. . . . This

principle will, in turn, decrease the need for extensive

discovery, and will thereby help to preserve a greater

measure of the often sorely tried marital assets for

the support of all of the family members.’’ (Internal

quotation marks omitted.) Reville v. Reville, supra, 312

Conn. 443–44. Furthermore, to shield a fraudulently

obtained arbitration award from challenge on the basis

of fraud after the passage of a mere thirty days would

discourage parties from engaging in these types of private settlements. For these reasons, we conclude that

the court had subject matter jurisdiction to address

right of appeal but, instead, merely [limited] the enforceable scope of the

parties’ arbitration agreement and award under chapter 909.’’ Id.

In our view, and for several reasons, the Supreme Court’s decision in

Blondeau does not impact our resolution of the defendant’s claim that the

trial court lacked subject matter jurisdiction over the plaintiff’s motion to

open the dissolution judgment. First, the claim in Blondeau involved an

attack on the appellate jurisdiction of the Supreme Court rather than, as

here, an attack on the subject matter jurisdiction of the trial court. Second,

the language of § 46b-66 on which the plaintiff in Blondeau based her claim

was subsequently repealed by the legislature. See footnote 14 of this opinion.

Finally, and most significantly, it does not appear that the arbitration award

at issue in Blondeau had been incorporated into a judgment of dissolution,

which § 46b-66 (e) now expressly requires. Accordingly, we conclude that

the procedural differences between Blondeau and the present case, as well

as the subsequent statutory changes and fundamental dissimilarities

between the claims, renders Blondeau inapposite.
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the plaintiff’s motion to open the dissolution judgment,

even though it was filed outside of the time frame set

forth in § 52-420 (b).

II

Having concluded that the trial court had jurisdiction

over the plaintiff’s motion to open, we now turn to the

merits of her appeal. The plaintiff claims that the court

improperly concluded that she had failed to establish

probable cause as to the existence of fraud that would

permit the court to open the judgment for the limited

purpose of conducting discovery on that claim. See

Spilke v. Spilke, supra, 116 Conn. App. 593–94; Oneglia

v. Oneglia, supra, 14 Conn. App. 269–70. Specifically,

she argues that, contrary to the court’s determination

that there was ‘‘no evidence’’ to support her fraud claim,

she presented sufficient evidence that established probable cause to warrant further discovery and additional

proceedings. We agree with the plaintiff.

The following additional facts and procedural history

are relevant to our resolution of this claim. On April 3,

2018, the plaintiff moved to open the judgment on the

basis of fraud.16 The defendant filed a memorandum in

opposition and exhibits on December 11, 2018. The

plaintiff submitted a reply brief on January 11, 2019.

Following the first appeal and our remand for additional

proceedings; see Karen v. Loftus, supra, 210 Conn. App.

289; the court, Truglia, J., conducted a hearing over the

course of three days, September 9, 2022, and January

4 and 5, 2023, to determine whether the plaintiff met

16 The plaintiff requested the following relief in her motion to open: (1)

an order reopening the judgment; (2) an order awarding her 50 percent of

the defendant’s interest in LLBH and Partner Wealth Management, LLC,

pursuant to paragraph 6 (a) of the prenuptial agreement; (3) damages; (4)

interest; (5) attorney’s fees; (6) costs; (7) in the alternative, a new marital

dissolution trial; and (8) such other and further relief as the court deemed

just and equitable.
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her burden to move forward with discovery in connection with her motion to open. At the hearing, the plaintiff, the defendant, and Kevin Collins, the plaintiff’s

attorney during the arbitration, testified. Additionally,

because McLachlan was unavailable to testify, a transcript of his December 19, 2022 deposition was admitted

into evidence.

On January 5, 2023, at the conclusion of the hearing,

Judge Truglia stated that the plaintiff had failed to prove

that the defendant had misled McLachlan at the arbitration and therefore denied the motion to open. Approximately one month later, the court issued a ‘‘statement

of decision’’ that provided in relevant part: ‘‘The gravamen of the plaintiff’s motion to open is that the defendant made material statements during the arbitration

. . . that were false, and that the defendant knew were

false. The plaintiff alleges in her motion that [McLachlan] relied on these false statements in reaching a decision that was unfavorable to her. Had the defendant

not made false statements during the arbitration proceedings, the plaintiff further alleges, the outcome of

the arbitration would have been different. . . .

‘‘The court heard approximately nine hours of testimony from both parties in this case and two other

witnesses over the three days of evidentiary hearing.

The court carefully reviewed and weighed the testimony

presented. The court also carefully reviewed all of the

exhibits submitted by the plaintiff in support of her

motion. The court found no evidence of fraud.’’ (Citation omitted; emphasis added.)

As an initial matter, we review the relevant legal

principles. ‘‘In Oneglia v. Oneglia, [supra, 14 Conn. App.

267], this court held that, in considering a motion to

open on the basis of fraud, a court must first make a

preliminary determination of whether there is probable

cause to believe that the judgment was obtained by
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fraud. Oneglia and its progeny are grounded in the

principle of the finality of judgments. . . . [T]he finality of judgments principle recognizes the interest of the

public as well as that of the parties [that] there be fixed

a time after the expiration of which the controversy

is to be regarded as settled and the parties freed of

obligations to act further by virtue of having been summoned into or having appeared in the case. . . . Without such a rule, no judgment could be relied on. . . .

Oneglia carefully balanced that interest in finality with

the reality that in some situations, the principle of protection of the finality of judgments must give way to

the principle of fairness and equity. . . . The court in

Oneglia thus ratified the gatekeeping mechanism

employed by the trial court, whereby a court presented

with a motion to open by a party alleging fraud in a

postjudgment dissolution proceeding conducts a preliminary hearing to determine whether the allegations

are substantiated. . . . [I]f the plaintiff was able to substantiate her allegations of fraud beyond mere suspicion, then the court [properly] would open the judgment

for the limited purpose of discovery, and would later

issue an ultimate decision on the motion to open after

discovery had been completed and another hearing

held. . . . 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 [or she] will prevail, only that there

is probable cause to sustain the validity of the claim.’’

(Emphasis added; internal quotation marks omitted.)

Kuselias v. Zingaro & Cretella, LLC, 224 Conn. App.

192, 195–96 n.2, 312 A.3d 118, cert. denied, 349 Conn.

916, 316 A.3d 357 (2024).

Stated differently, ‘‘a party seeking to obtain discovery related to allegedly fraudulent conduct that transpired prior to the entry of judgment must, consistent

with the aforementioned precedent, (1) move to open
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that judgment and (2) demonstrate to the trial court

that the allegations of fraud are founded on probable

cause. Absent such evidence, the court lacks authority

to permit postjudgment discovery on such matters.’’

Brody v. Brody, 153 Conn. App. 625, 634, 103 A.3d 981,

cert. denied, 315 Conn. 910, 105 A.3d 901 (2014); see

also Nolan v. Nolan, 76 Conn. App. 583, 585, 821 A.2d

772 (2003). This is because, until the judgment has been

opened, there is no active civil matter, discovery is

permitted only when there is a cause of action pending,

and ‘‘there is no such thing as postjudgment discovery

in a vacuum.’’ (Internal quotation marks omitted.)

Bruno v. Bruno, supra, 146 Conn. App. 231.

Next, we identify the applicable standard of review.

Generally, our decisions have applied a discretionary

standard of review to the denial of a motion to open.

‘‘Our review of a court’s denial of a motion to open

[based on fraud] is well settled. . . . 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.’’

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

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

Conn. 929, 171 A.3d 455 (2017).

In this appeal, however, the specific legal issue raised

by the plaintiff warrants the application of a less deferential standard of review. Here, the plaintiff claims that

the trial court improperly determined that she had failed

to establish probable cause to substantiate her fraud

allegations. Our Supreme Court has stated that

‘‘[w]hether particular facts constitute probable cause is

a question of law.’’ (Internal quotation marks omitted.)
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Journal Publishing Co. v. Hartford Courant Co., 261

Conn. 673, 682, 804 A.2d 823 (2002); Paranto v. Ball,

132 Conn. 568, 571, 46 A.2d 6 (1946). Accordingly, we

apply the plenary standard of review to the plaintiff’s

claim. See Rousseau v. Weinstein, 204 Conn. App. 833,

853, 254 A.3d 984 (2021); see also State v. Smith, 344

Conn. 229, 244, 278 A.3d 481 (2022); Falls Church

Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn.

84, 94, 912 A.2d 1019 (2007); Nowak v. Environmental

Energy Services, Inc., 218 Conn. App. 516, 530, 292 A.3d

4 (2023).

With our standard of review in mind, we turn to

the relevant legal principles regarding the standard of

probable cause. We acknowledge that most of the cases

that have addressed the existence of probable cause in

the context of a motion to open based on fraud have

not discussed the standard itself in much detail. Accordingly, we look to the use of probable cause in other

contexts for guidance. ‘‘Our Supreme Court has determined that [p]robable cause is a standard widely used

to validate a preliminary impairment of a broad range

of personal and property rights, from the suspension

of professional licenses to the issuances of warrants

for seizure and arrest. . . . A hearing in probable cause

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 [or she] will prevail, only that

there is probable cause to sustain the validity of the

claim. . . . The court’s role in such a hearing is to

determine probable success by weighing probabilities.

. . . The legal idea of probable cause is a bona fide

belief in the existence of the facts essential under the

law for the action and such as would warrant a [person]

of ordinary caution, prudence and judgment, under the

circumstances, in entertaining it. . . . Probable cause

is a flexible common sense standard. It does not

demand that a belief be correct or more likely true
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Karen v. Loftus

than false.’’ (Citations omitted; internal quotation marks

omitted.) Malave v. Ortiz, 114 Conn. App. 414, 426, 970

A.2d 743 (2009);17 see also Spilke v. Spilke, supra, 116

Conn. App. 594 n.6; Goree v. Goree, Superior Court,

judicial district of Stamford-Norwalk, Docket No. FA17-5018347-S (May 26, 2022).

17 The Superior Court in Malave v. Ortiz, Superior Court, judicial district

of New Haven, Docket No. FA-05-4008026-S (March 19, 2007) (43 Conn. L.

Rptr. 148), aff’d, 114 Conn. App. 414, 970 A.2d 743 (2009), set forth a thorough

discussion of the probable cause standard as applied in various family,

administrative, civil and criminal contexts. ‘‘Running throughout all the cases

describing the probable cause standard are certain constants. The standard

is described, on the one hand, as a modest one; 36 DeForest Avenue, LLC

v. Creadore, 99 Conn. App. 690, [698], 915 A.2d 916 (2007); more than mere

belief, suspicion or conjecture; Heussner v. Day, Berry & Howard, LLP,

94 Conn. App. 569, [577, 893 A.2d 486, cert. denied, 278 Conn. 912, 899 A.2d

38] (2006); no matter how sincere; but substantially less than proof beyond

[a] reasonable doubt necessary for conviction; State v. Clark, 255 Conn.

268, 291–94, 764 A.2d 1251 (2001); and not as demanding as proof by a fair

preponderance of the evidence. Newtown Associates v. Northeast Structures, Inc., 15 Conn. App. 633, 636–37, 546 A.2d 310 (1988). The United

States Supreme Court has described probable cause as a fluid concept—

turning on the assessment of probabilities in particular factual contexts—

not readily, or even usefully, reduced to a neat set of legal rules. Illinois

v. Gates, 462 U.S. 213, 232, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). [The

Appellate] Court has repeatedly emphasized, in a variety of contexts, that

probable cause is a flexible [commonsense] standard. 36 DeForest Avenue,

LLC v. Creadore, supra . . . 695 (application to discharge [mechanic’s]

lien); Morris v. Cee Dee, LLC, 90 Conn. App. 403, 411 [877 A.2d 899] (prejudgment remedy) [cert. granted, 275 Conn. 929, 883 A.2d 1245 (2005) (appeal

withdrawn March 13, 2006)]; Donenfeld v. Friedman, 79 Conn. App. 64, [68,

829 A.2d 107] (2003) (application for discharge of lis pendens); Ezikovich

v. Commission on Human Rights & Opportunities, [57 Conn. App. 767,

771, 750 A.2d 494] (finding of reasonable cause regarding discrimination or

retaliation necessary before [c]ommission may undertake certain actions)

[cert. denied, 253 Conn. 925, 754 A.2d 796 (2000)]. The most frequent articulation of the probable cause standard in Connecticut cases is that [t]he legal

idea of probable cause is a bona fide belief in the existence of the facts

essential under the law for the action and such as would warrant a [person]

of ordinary caution, prudence and judgment, under the circumstances, in

entertaining it. . . .

‘‘The court’s role in such a hearing is to determine probable successes

by weighing probabilities. . . . In judging the probabilities, a court must

weigh the evidence, assess the credibility and demeanor of the witnesses,

and evaluate exhibits offered. Evidence offered by the party subject to that
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We next turn to the evidence offered by the plaintiff

in support of this standard. We first recognize that the

fraud inquiry was made more difficult because no transcript exists from the arbitration proceeding, as it was

not held on the record. We must, therefore, rely on

other documents, including the defendant’s April 3, 2017

arbitration brief, the arbitration decision itself, the testimony from the motion to open hearing, and McLachlan’s December 19, 2022 deposition, to determine

whether the plaintiff has met her burden to establish

probable cause as to the existence of fraud.

The issue at the February 16 and 17, 2017 arbitration

concerned the interpretation of paragraph 6 (B) of the

prenuptial agreement and whether the defendant had

‘‘left his employment with Merrill Lynch under an

arrangement that is in any fashion tantamount to a

‘sale’ of his interest in Merrill Lynch, i.e. a transaction

under which [the defendant] receives any property,

real or personal, including but not limited to a sum

of money, by way of a ‘sign-on’ bonus or otherwise, a

premium bonus, and/or restricted stock or other ownership interest (‘Sale Proceeds’), to work for another

entity for any reason whatsoever, including his bringing a book of business and/or a clientele and/or a book

of other assets to a prospective employer, [and, if so]

then [the defendant] shall first be entitled to set aside

the value of $75,000, or $75,000 from the Sale Proceeds,

and the balance of such Sale Proceeds, whenever

received or receivable by [the defendant], shall be

divided between [the defendant and the plaintiff].’’

(Emphasis added.)

In the defendant’s arbitration brief, he claimed that

neither his prior employment at Merrill Lynch nor his

standard is not to be accepted uncritically or presumed to be true; nor is

the evidence necessarily construed, as would be true on a motion to dismiss

at the end of a plaintiff’s [case-in-chief] in a full-blown trial, in the light

most favorable to the plaintiff.’’ (Citation omitted; internal quotation marks

omitted.) Malave v. Ortiz, supra, 43 Conn. L. Rptr. 148–49.
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Karen v. Loftus

‘‘book of business’’ had anything to do with the formation of LLBH. Additionally, he maintained that his business at LLBH bore ‘‘no resemblance to his prior business

at Merrill Lynch,’’ and he ‘‘did not bring [former Merrill

Lynch] clients to LLBH and LLBH did not bring those

clients.’’ He also stated that Focus purchased an option

to buy a minority interest in LLBH for $2 million ‘‘soon

after its formation . . . .’’ (Emphasis added.) He

described LLBH as a ‘‘startup company’’ and that he

was self-employed in a new industry at Focus. The

defendant further indicated that Focus purchased this

option after LLBH had been formed and was open for

business, and, because the defendant and his three partners had already left Merrill Lynch, the option bought

by Focus was not material to his departure from that

company. Finally, the defendant maintained that Focus’

option to purchase ‘‘was a transaction which has no

nexus to the defendant’s leaving the employ of Merrill

Lynch, was not ‘tantamount to a sale’ of his interest

in Merrill Lynch, and as such does not implicate the

provisions of [the parties’ prenuptial agreement].’’

(Emphasis added.)

In his arbitration award, McLachlan found that, when

the defendant and his partners left Merrill Lynch and

formed LLBH, each invested approximately $10,000 to

$15,000 into the startup of this business. He further

determined that Focus purchased the option to buy an

interest in LLBH for $2 million shortly after its formation, and each partner received $500,000. After Focus

exercised this option to purchase an interest in LLBH,

a corporate reorganization, and the creation of a new

entity known as Partner Wealth Management, LLC, the

defendant received, inter alia, $1,655,000 and 90,000

shares of Focus stock.

McLachlan then determined that the language of paragraph 6 (B) of the parties’ prenuptial agreement did not

apply to the defendant’s departure from Merrill Lynch
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and the formation of a new business with his partners.

‘‘The only conclusion one could reach is . . . that

[paragraph 6 (B)] was drafted in contemplation of [the

defendant] leaving Merrill Lynch and going to a competitor who would pay him to come not only in recognition of the Merrill Lynch employment benefits he would

be forfeiting, but because some of the contacts and

business that he would be bringing with him ....

The context, as it actually occurred, was [the defendant]

leaving initially with three (3) partners to form a new

business. He and his partners were not paid to go to

LLBH but, in fact, each paid into the venture to start

it. . . . This is substantially different than the situation

where an employee leaves a brokerage house and is

compensated by the new employer. [The defendant’s]

new employer was a company that he owned a portion

of and in which he had invested. The new employer

was not in a position to, and in fact, did not give

him any property, real or personal, including, but not

limited to, a sum of money by way of a ‘sign-on’ bonus

or otherwise, a premium bonus and/or restricted stock

or other ownership interest. [The defendant] acquired

an ownership interest in LLBH because he invested in

it. This transaction is not tantamount to a sale. He was

then able to sell a portion of that ownership interest

to Focus.’’ (Emphasis added.) The arbitration decision,

therefore, accepted the defendant’s testimony about the

timeline of events regarding his departure from Merrill

Lynch and forming LLBH.

At the hearing on the plaintiff’s motion to open, however, the defendant acknowledged that Focus paid him

and his three partners $2 million at the same time LLBH

was formed. The defendant admitted that the option

agreement with Focus was signed on the same day that

he resigned from Merrill Lynch. He also conceded that

the negotiations with Focus had occurred prior to his

leaving Merrill Lynch and that Focus was committed to
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supporting their new business venture. The defendant

further admitted that he received $500,000 from Focus

at the time he left Merrill Lynch. The defendant then

conceded that, during a prior deposition, he had stated

that ‘‘no one gave [him] any money’’ when he formed

LLBH with his partners. Several aspects of the defendant’s testimony were contrary to his prior statements

and the evidence presented to McLachlan during the

arbitration hearing.

Additionally, during a July 27, 2016 deposition that

was taken as a part of the marital dissolution proceeding

and utilized at the hearing before Judge Truglia, the

defendant had testified that he and his three partners

left Merrill Lynch and ‘‘put our own money into LLBH.

. . . We set up our firm. We put our own capital in,

and we set up a business.’’ Later in that deposition, the

defendant stated: ‘‘For the record, for the record, I did

not sell anything. . . . I started a business. No one—

no one gave me any money. I got no consideration. I

put my own money into a . . . new company, took

[an] inordinate amount of risk at the absolute peak of

the financial crisis, had no way of knowing that my

clients would come with me, [and] walked away from

. . . millions of dollars . . . .’’ (Emphasis added.)

The defendant’s counsel indicated to Judge Truglia

that, during the arbitration proceeding, McLachlan had

been provided with a copy of the option agreement

between LLBH and Focus.18 The plaintiff’s attorney disagreed with this representation. The defendant confirmed that the option contract was executed on October 17, 2008, the same day he and his three partners

left their employment with Merrill Lynch. The defendant

further conceded that the negotiation regarding the

18 The court subsequently stated that it considered it ‘‘very important’’

and a ‘‘[v]ery significant piece of evidence as to whether . . . McLachlan

. . . had [the option contract] in front of him when he issued his decision.’’
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option contact had occurred prior to October 17, 2008,

and he knew he would receive payment once the contract was executed. The defendant then admitted, during a September 26, 2016 deposition during the dissolution proceedings, that he had stated that he started

LLBH ‘‘on day one with nothing’’ and set up a new

company that did not pay him ‘‘anything.’’

At the January 4, 2023 hearing, the plaintiff’s counsel

read from the defendant’s testimony in a separate lawsuit19 in which he had testified that the option contract

with Focus had been contemplated before leaving Merrill Lynch, and he described his receipt of $500,000 as

a ‘‘payment.’’ In this prior testimony, he also stated that

he and his LLBH partners, over the course of three

months, brought over approximately $375 million in

assets to manage from former Merrill Lynch clients.

The plaintiff testified at the hearing on her motion

to open that she, her attorney and McLachlan had not

been in possession of the Focus option agreement at

the time of the arbitration, and that she did not learn

of its existence, or the subsequent asset purchase agreement, until ‘‘[l]ong after’’ the arbitration.20 She also

stated that, at the arbitration hearing, the defendant

had testified that it was not until ‘‘sometime after’’ he

left Merrill Lynch and formed LLBH ‘‘that Focus came

around in any way.’’ She also recalled that his testimony

before McLachlan was that he and his partners had no

contact with Focus before leaving Merrill Lynch. She

further indicated that, at the time of his departure from

Merrill Lynch, the defendant had worked to transfer

client accounts to the new enterprise.

19 See Lomas v. Partner Wealth Management, LLC, Superior Court, judicial

district of Stamford-Norwalk, Docket No. CV-15-5014808-S. 20 On cross-examination, the plaintiff conceded that she was aware that

the defendant had received a payment from Focus on or about October 17,

2008. She also acknowledged that she was generally aware of a financial

agreement with Focus in May, 2007.
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Pursuant to an agreement of the parties, the court

admitted into evidence a transcript of McLachlan’s

December 19, 2022 deposition. During his deposition,

McLachlan was shown a copy of the October 17, 2008

Focus option agreement, and he testified that he did

not recognize it and that he knew that it was not part

of the record during the arbitration proceeding. He specifically stated that he was unaware ‘‘when [he] issued

[his] award that [the defendant] and his partners had

executed an option agreement with Focus . . . on the

very day they left Merrill Lynch to open their own business.’’ On the basis of the evidence presented during

the deposition, which differed from what had been presented during the arbitration proceeding, McLachlan

concluded that this transaction had occurred on the

same day that the defendant left Merrill Lynch, contrary

to his statement in the award that Focus purchased an

option to buy an interest in LLBH shortly after LLBH’s

formation. McLachlan also testified that he had been

unaware that the defendant received $500,000 from

Focus on the day he left Merrill Lynch. He specifically

stated that ‘‘the timeline [described by the defendant

at the arbitration proceeding] was a little bit different

and not as crisp as the timeline [described by the defendant at the hearing on the plaintiff’s motion to open].’’

McLachlan also testified that there was no evidence

at the arbitration hearing that the defendant and his

partners had been negotiating with Focus prior to their

departure from Merrill Lynch. McLachlan also had not

known that approximately $350 million to $370 million

dollars of business from Merrill Lynch clients had been

transferred to LLBH.

During cross-examination by the defendant’s counsel

during his deposition, McLachlan described his recollection of the defendant’s theory of the case: ‘‘Well, he

said first of all he wasn’t being paid—this is as I recall
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his theory—he wasn’t being paid for bringing the clients, the book of business with him, he was—because

what he was doing was different, that he—I am not

sure if he represented—if he was advising corporations

when he was at Merrill Lynch that went to advising

individuals, but that it wasn’t really the same as just

bringing a book of business because he started a new

business. And his theory was that he started this new

business, he and his partners, that it wasn’t as though

they went to [an existing competitor of Merrill Lynch].’’

McLachlan later was asked: ‘‘[I]n your mind, [were]

there any efforts made to obfuscate the existence of

the option, the $2 million payment, $500,000 of which

went to [the defendant] or it’s temporal connection with

the group of men leaving Merrill Lynch?’’ He responded:

‘‘Well, I would say yes. I think there was, I—I mean, I

think, you know, [the defendant] didn’t want to represent that [he] walked out the door and somebody gave

[him] $500,000. You know, whether or not that would

still be within [paragraph 6 (B) of the prenuptial agreement] is a separate issue, but he certainly didn’t say

that [he] had a deal with Focus, that when [the four

partners] left they were going to [be paid] $2 million.’’

McLachlan also stated that, had he known this information regarding the timing of the Focus option agreement, he would have asked more questions and that

the facts ultimately were different from the impression

that he had formed at the arbitration proceeding, and

based on these facts, it looked ‘‘more like they were

going to work for Focus than starting their own business.’’

We now turn to the legal principles governing fraud

in the context of a motion to open filed in a marital

dissolution action. We emphasize that, at this stage of

the proceedings, the plaintiff is not required to prove

the existence of fraud but, rather, must demonstrate

only probable cause as to the existence of fraud in
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order for the court to open the judgment for the limited

purpose of proceeding with discovery. See, e.g., Longbottom v. Longbottom, 197 Conn. App. 64, 72, 231 A.3d

310 (2020). Additionally, ‘‘[t]his 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.’’

(Emphasis added; internal quotation marks omitted.)

Id.21

‘‘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. . . .

‘‘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

21 At the conclusion of the hearing, the court explained that the plaintiff

had failed to present any ‘‘compelling evidence’’ or prove that the defendant

had ‘‘misled’’ McLachlan at the arbitration. In its subsequent ‘‘statement of

decision,’’ the court indicated that it ‘‘found no evidence of fraud.’’ These

statements suggest that the court misapprehended the plaintiff’s burden. As

to the former, there is no requirement in our law that the plaintiff present

‘‘compelling’’ evidence of fraud in the context of a motion to open the

judgment. Regarding the latter, the plaintiff was required only to meet the

lesser standard of probable cause, and, as we conclude in this opinion, she

has done so.
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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.’’ (Citation omitted; emphasis

added; internal quotation marks omitted.) Id., 72–73;

see also Reville v. Reville, supra, 312 Conn. 441–42;

Cimino v. Cimino, supra, 174 Conn. App. 9–11; Pospisil

v. Pospisil, 59 Conn. App. 446, 450, 757 A.2d 655, cert.

denied, 254 Conn. 940, 761 A.2d 762 (2000).

The plaintiff presented evidence that, during the arbitration proceeding, the defendant represented to

McLachlan that he and his partners left their employment at Merrill Lynch essentially to start a new company, LLBH, and that they did not receive any funding

from Focus until after its formation. The defendant

specifically had argued to McLachlan that the Focus

payment of $2 million constituted a transaction without

a nexus to his departure from Merrill Lynch. Indeed,

during a deposition taken earlier in this proceeding, he

stated that he did not sell anything, nor did he receive

any money or consideration from a third party; he used

his own money to create a new business. He also failed

to provide the plaintiff or McLachlan with a copy of

the Focus option agreement. The plaintiff presented

further evidence that showed that the defendant and

his partners had been working with Focus prior to their

departure from Merrill Lynch, and they executed the

option agreement with Focus on the same day they

formed LLBH. The group also brought over former Merrill Lynch clients and their assets worth approximately

$375 million.

Applying the flexible, commonsense standard of

probable cause that would warrant a person of ordinary
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caution, prudence and judgment to entertain a bona

fide belief in the existence of the claim of fraud, we

conclude that the plaintiff had satisfied her ‘‘modest’’

burden at this preliminary stage of the proceedings by

substantiating her allegations to warrant discovery and

further proceedings. Our Supreme Court has instructed

that, in determining whether there is proof of fraud, a

court should consider the evidence ‘‘through the lens

of our well settled policy regarding full and frank disclosure in marital dissolution actions.’’ (Internal quotation

marks omitted.) Reville v. Reville, supra, 312 Conn. 442.

Pursuant to paragraph 6 (B) of the parties’ prenuptial

agreement, if the defendant ended his employment with

Merrill Lynch under an arrangement that was tantamount to a sale of his interest therein, then the plaintiff

was entitled to a share of the proceeds. If, however,

the defendant left Merrill Lynch under conditions that

were not tantamount to a sale, then the plaintiff would

not receive any additional money from the defendant.

The defendant, therefore, had a financial incentive to

misrepresent the nature and timing of his dealings with

Focus in connection with the formation of LLBH. Stated

differently, by framing this transaction as the risky creation of a new business done solely with modest financial contributions from himself and the other LLBH

partners, rather than one in which he received a substantial sum of money along with the backing and assistance from a third party, a reasonable person could

conclude that the defendant used deception regarding

the circumstances surrounding his leaving Merrill

Lynch and the formation of LLBH in order to deprive

the plaintiff of her share of the money from the new

venture to which she was entitled pursuant to paragraph

6 (B) of the prenuptial agreement. See Grayson v. Grayson, 4 Conn. App. 275, 287, 494 A.2d 576 (1985), appeal

dismissed, 202 Conn. 221, 520 A.2d 225 (1987); see also

Reville v. Reville, supra, 441; Gelinas v. Gelinas, 10
Page 42 CONNECTICUT LAW JOURNAL 0, 0

44 , 0 0 Conn. App. 1

Karen v. Loftus

Conn. App. 167, 173, 522 A.2d 295, cert. denied, 204

Conn. 802, 525 A.2d 965 (1987).

We determine that the plaintiff presented evidence

that satisfied the probable cause standard that the

defendant had made false statements, or failed to disclose facts, regarding the details of the end of his

employment at Merrill Lynch and the formation of LLBH

in an effort to deprive her of money she may have been

entitled to under the terms of the parties’ prenuptial

agreement. Such conduct, if proven, would result in a

situation ‘‘in which one party held a valuable asset, the

true worth and nature of which only that party knew.’’

Weinstein v. Weinstein, supra, 275 Conn. 690. Efforts to

hide or obfuscate material facts in a marital dissolution

proceeding are incompatible with our jurisprudence,

and we will not countenance such an attempt to unfairly

bypass the conditions of a prenuptial agreement to the

detriment of the plaintiff. See id., 695; see also Miller

v. Appleby, 183 Conn. 51, 57 n.1, 438 A.2d 811 (1981)

(when false representations are made for purpose of

inducing act to another’s injury, necessarily there is

plain implication that such representations were made

with intent to deceive). We conclude, therefore, that

the court improperly denied the plaintiff’s motion to

open the judgment based on fraud. As a result, we

reverse the trial court’s judgment denying the plaintiff’s

motion to open and remand the case with direction to

open the judgment for the limited purpose of allowing

further discovery in conjunction with the plaintiff’s

claim of fraud.

The judgment is reversed and the case is remanded

for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.