CATHERINE REVILLE v. JOHN REVILLE, SC 18452

Judicial District of Stamford

 Dissolution of Marriage; Fraud; Whether Trial Court Properly Denied Motion to Open Dissolution Judgment which Alleged Failure to Disclose Unvested Pension on Financial Affidavit.  In May of 2001, the trial court rendered a judgment dissolving the parties' marriage.  The judgment incorporated the parties' written settlement agreement providing for a division of the marital property.  The plaintiff moved to open the judgment in May of 2005, claiming that the defendant fraudulently failed to disclose his partner's retirement plan (PRP) at PricewaterhouseCoopers, LLC, and that, as a result, the property division should be revisited.  The trial court found that, at the time of the dissolution judgment, the PRP was an unfunded, defined benefit plan in which the defendant's interest had not yet vested.  The trial court further found that because the defendant did not have an existing, enforceable right in the PRP, the PRP did not constitute "marital property" subject to division pursuant to the equitable division statute, General Statutes § 46b-81.  In so ruling, the trial court applied the law as it existed at the time of the judgment rather than the law established in Bender v. Bender, 258 Conn. 733 (2001), a decision that issued shortly after the judgment here.  In Bender, the Supreme Court held that unvested pension benefits are subject to equitable distribution under § 46b-81 because a party's expectation of the benefit attached to that interest is sufficiently concrete, reasonable and justifiable as to constitute a presently existing property interest for equitable division purposes.  The trial court found that Bender should not be applied retroactively because it introduced a substantial change in the process of defining § 46b-81 marital property.  Notwithstanding the trial court's finding that the PRP was not marital property subject to equitable distribution, the court found that the defendant's failure to include it on his financial affidavit prevented it from fully performing its duty under § 46b-66 to find the parties' settlement agreement to be fair and equitable under all the circumstances.  Noting, however, that the defendant did disclose the PRP to the plaintiff and her attorney during the negotiations leading up to the execution of the parties' settlement agreement, the trial court denied the motion to open, finding that the plaintiff failed to meet her burden of proving fraud by clear and convincing evidence.  The plaintiff appeals, claiming the court erred in determining that the PRP was not marital property and that the timing of the Bender decision excused the defendant's failure to list the PRP on his financial affidavit at the time of the dissolution.  The plaintiff also claims that she wrongly bore the burden of proving fraud and that, because she established that the defendant failed to disclose a substantial asset on his financial affidavit or in open court, the burden should have shifted to the defendant to prove the absence of fraud.