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Greenspan v. Greenspan
HOWARD GREENSPAN v. CARRIE GREENSPAN
(AC 48802)
Clark, Westbrook and Wilson, Js.*
Syllabus
The plaintiff appealed following the trial court’s denial of his motion to open the dissolution judgment for the limited purpose of allowing him to conduct discovery regarding the defendant’s alleged fraud in failing to disclose an ownership interest in G Co. during the dissolution proceeding. The plaintiff claimed, inter alia, that the court applied an incorrect standard of proof in adjudicating the motion to open. Held:
The trial court properly applied the probable cause standard of proof in adjudicating the plaintiff’s motion to open, as that court’s memorandum of decision expressly set forth the probable cause standard and identified the governing legal precedent applicable to evaluating whether a judgment may be opened on the basis of alleged fraud, and the court’s analysis was fully consistent with the application of the probable cause standard.
The trial court properly denied the plaintiff’s motion to open, as the circumstantial evidence presented by the plaintiff was far too tenuous for rational minds to reasonably and logically draw the necessary inferences to conclude that the defendant had fraudulently concealed an ownership interest in G Co. during the dissolution proceeding, and, therefore, the plaintiff failed to establish probable cause that the dissolution judgment was obtained by fraud.
The plaintiff’s claim that the trial court improperly shifted the burden of proof to the plaintiff to disprove the defendant’s defenses by not requiring the defendant to substantiate her defenses at the hearing on the motion to open was unavailing, as the defendant’s testimony at that hearing was not offered to support an affirmative defense but, rather, was offered to show that the plaintiff’s material allegations in support of his fraud claim were untrue.
Argued April 16—officially released August 18, 2026
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial
district of Fairfield and tried to the court, Gould, J.;
judgment dissolving the marriage and granting certain
other relief; thereafter, the court, O’Neill, J., denied
*
The listing of judges reflects their seniority status on this court as of the date of oral argument.
Greenspan v. Greenspan
the plaintiff’s motion to open the judgment, and the
plaintiff appealed to this court. Affirmed.
Sheila S. Charmoy, for the appellant (plaintiff).
Tara C. Dugo, with whom, on the brief, were Carrie
Greenspan, self-represented, and Nancy Aldrich, for
the appellee (defendant).
Opinion
CLARK, J. The plaintiff, Howard Greenspan, appeals
from the judgment of the trial court denying his motion
to open the judgment dissolving his marriage to the
defendant, Carrie Greenspan. On appeal, the plaintiff
claims that the trial court (1) applied an incorrect standard of proof in adjudicating his motion to open the dissolution judgment for the limited purpose of conducting
discovery,1 (2) improperly concluded that he failed to
establish probable cause that the dissolution judgment
was obtained by fraud, and (3) did not require the defendant to substantiate her defenses at the hearing on the
motion to open the dissolution judgment with sufficient
evidence and thereby improperly shifted the burden of
proof to the plaintiff to disprove them. We disagree and, accordingly, affirm the judgment of the trial court.
The following facts and procedural history are relevant
to our resolution of the plaintiff’s appeal. The parties
1
In his principal appellate brief, the plaintiff characterizes his first claim of error as follows: “The court misapplied the probable cause burden of proof” when adjudicating the plaintiff’s motion to open and, instead, “applied a heightened burden of proof . . . closer to clear and convincing evidence—rather than the probable cause standard required . . . .” At times, the plaintiff mistakenly conflates the burden of proof legal standard with the standard of proof legal standard. “Burden of proof” refers broadly to a party’s duty to present evidence and argument to prove his or her allegations; see Black’s Law Dictionary (12th Ed. 2024) p. 243; whereas “standard of proof” refers to the “degree or level of proof demanded” to prove a specific allegation. Id., 1699. It is clear from the plaintiff’s briefing, however, that the plaintiff’s central argument with respect to his first claim of error is that the court applied an incorrect standard of proof. Accordingly, we construe the plaintiff’s first claim to be that the court applied an incorrect standard of proof in adjudicating the motion to open.
Greenspan v. Greenspan
were married on June 30, 2002. On March 6, 2019, the
court, Gould, J., issued an amended memorandum of decision dissolving the parties’ marriage. The court entered
various orders at the time of dissolution, including, inter alia, orders relating to the payment of support and the
division of the parties’ assets.
On August 15, 2024, the plaintiff filed a motion to
open the dissolution judgment on the ground of fraud,
alleging that the defendant misrepresented her income
and assets during the pendency of the dissolution action. Specifically, the plaintiff alleged that the defendant had failed to disclose an ownership interest in Green Bella
Consulting, Inc. (Green Bella Consulting), during the
underlying dissolution action. The plaintiff sought to
conduct postjudgment discovery pursuant to our decision in Oneglia v. Oneglia, 14 Conn. App. 267, 540 A.2d
713 (1988). The defendant did not file a memorandum
in opposition to the motion to open.
On March 18, 2025, the court, O’Neil, J., held a preliminary probable cause hearing on the plaintiff’s motion to open pursuant to Oneglia. At the preliminary hearing, the plaintiff submitted the following documentary
evidence in support of his motion to open: (1) financial affidavits and a discovery response the defendant
had submitted during the dissolution proceeding; (2)
certain documents relating to Green Bella Consulting, Bella Green Realty, LLC (Bella Green Realty), and
BLLD Realty, Inc. (BLLD Realty); and (3) a copy of the
plaintiff’s 2018 tax return and related documents. The
documentary evidence relating to Green Bella Consulting included a printout from the website of the New
York Department of State dated October 31, 2024, and
Green Bella Consulting’s certificate of incorporation and biennial statements from March 2009, 2011 and 2013.
The printout indicates that Green Bella Consulting was
formed in 2007 and was an active business entity as of
the date of the printout, and lists the address of the
defendant’s father, Robert Lawless, as the company’s
address.2 The March 2009 biennial statement identifies
2
The record reflects that Robert Lawless died in 2022.
Greenspan v. Greenspan
the defendant as the chief executive officer (CEO) of the company and includes a signature, purporting to be the
defendant’s, indicating that she was the president of
Green Bella Consulting.3 The March 2011 biennial statement identifies the defendant’s sister, Meghan LaBella,
as the CEO of Green Bella Consulting and was signed by
LaBella in her capacity as the CEO.4 The March 2013
biennial statement, likewise, identifies LaBella as the
CEO and was signed by LaBella. There is no reference
to the defendant in the March 2013 biennial statement.
The 2009, 2011 and 2013 biennial statements all list
the address of the defendant’s father as the company’s
address.
The documentary evidence relating to Bella Green
Realty includes a copy of its articles of organization
and biennial statements from April 2009 and 2011. The
April 2009 biennial statement was signed by LaBella as
a “partner,” and the April 2011 biennial statement was
signed by Lawless as “manager.” The documentary evidence relating to BLDD Realty includes its certificate of incorporation and biennial statements from September
2007, 2009, 2011 and 2013. These biennial statements
identify Lawless as the CEO and were signed by Lawless.
The documentary evidence for both of those companies
lists Lawless’ address or the address of a building owned by him as the business address of the companies. None of
the documents relating to Bella Green Realty or BLDD
Realty reference the defendant.
At the probable cause hearing, both the plaintiff and
the defendant testified regarding the alleged business
interests of the defendant. The plaintiff testified that
the defendant did not disclose any business interests on
her financial affidavits filed during the pendency of the dissolution proceeding. He further testified to his belief that the defendant owned business interests that she was
3
The March 2009 biennial statement also lists the Fairfield, Connecticut address that the defendant and the plaintiff shared during the marriage as the “Business Address” of the CEO.
4
The defendant’s name and marital address are listed on the March 2011 biennial statement indicating that she was the prior CEO.
Greenspan v. Greenspan
obligated to disclose during the dissolution proceeding.
As the basis for that belief, the plaintiff testified that Lawless was an entrepreneur who formed and owned
several companies, including a very lucrative heating,
ventilation, and air conditioning (HVAC) business and
Green Bella Consulting, Bella Green Realty and BLDD
Realty. He further testified that LaBella and her husband “took over the [HVAC] business” and that LaBella
is the CEO of Green Bella Consulting and was listed as a
partner in the 2009 biennial statement for Bella Green
Realty. The plaintiff opined that Lawless would not
have given interests in his businesses to one daughter
and not the other. In addition, the plaintiff testified to his belief that the names of Green Bella Consulting and
Bella Green Realty were a combination of LaBella’s and
the defendant’s names, which he surmised supported
his claim that the defendant had an ownership interest
in those companies.
In response, the defendant testified that “[t]his is the
first time” she was “seeing anything about any of these
businesses” and that she has “never had any interest”
in them. She also testified that she “never received any
money” from any of the businesses identified by the
plaintiff nor did she report any such income on any tax
returns, including the joint tax returns that she and the plaintiff filed during their marriage. She further denied that she signed the 2009 biennial statement for Green
Bella Consulting.
On April 30, 2025, the trial court issued a memorandum of decision denying the plaintiff’s motion to open.
In its memorandum of decision, the court first explained
that its role was to “make a preliminary determination
of whether there [was] probable cause to believe that the judgment was obtained by fraud.” (Internal quotation
marks omitted.) The court then denied the plaintiff’s
motion to open, stating in relevant part: “There was no
credible or persuasive evidence suggesting that the defendant may have had an interest in Green Bella Consulting,
Bella Green Realty, or another company that would have
Greenspan v. Greenspan
obligated her to make a disclosure during the [dissolution] proceeding . . . . The only evidence was that the defendant may have had an interest in Green Bella Consulting
as the CEO in or around 2009, long before the filing of
the dissolution complaint and the entry of judgment.
The defendant did not have a duty to disclose an alleged
interest dating back to 2009 in a case that the plaintiff commenced in 2016. The belief that the defendant must
have an interest in Green Bella Consulting, or some other company affiliated with her late father, is nothing more
than a mere suspicion, and the facts as presented at the
hearing do not rise to the level of probable cause to open a final judgment for purposes of conducting discovery.
The plaintiff failed to show that there is probable cause to sustain the validity of a claim for fraud, including the claim of fraud by nondisclosure.”
On May 20, 2025, the plaintiff filed a motion to reargue, in which he claimed that the trial court imposed a
higher burden of proof on him at the preliminary hearing
than probable cause and that he had presented sufficient
evidence to establish probable cause that the judgment
was obtained by fraud. Specifically, the plaintiff argued that the circumstantial evidence he submitted established the “probable viability of his claim of fraud” and that the court’s conclusion that “[t]here was no credible or persuasive evidence suggesting that the defendant may have
had an interest in Green Bella Consulting, Bella Green
Realty, or another company” indicated that it imposed
a higher burden of proof on the plaintiff than probable
cause. (Internal quotation marks omitted.)
On May 22, 2025, the court denied the motion to reargue and explained that it correctly “applied the probable cause standard” and that “[t]he plaintiff did not establish that there was probable cause to maintain the validity of the [fraud] claim.” The court clarified that its reference to “no credible or persuasive evidence” referred to the “lack of any evidence during the relevant period” suggesting
that the defendant may have had an ownership interest
that she would have been obligated to disclose during
Greenspan v. Greenspan
the dissolution proceeding. (Internal quotation marks
omitted.) The court further explained that it viewed “as
mere suspicion the plaintiff’s belief that the defendant
fraudulently failed to disclose an interest in a company
during a [dissolution] proceeding commenced in 2016
because her name and alleged signature appeared on a
corporate filing approximately seven years earlier in
2009.” Ultimately, the court reiterated that the plaintiff’s “evidence fell short of establishing probable cause to maintain the validity of a fraud claim.” This appeal
followed. Additional facts will be set forth as necessary.
Before addressing the plaintiff’s specific claims, we set forth the legal principles relevant to our resolution of
this appeal. “Pursuant to General Statutes § 52-212a, 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 it was rendered or passed . . . . An exception to the four month limitation applies, however, if a party
can show, inter alia, that the judgment was obtained by
fraud.” (Internal quotation marks omitted.) Sousa v.
Sousa, 173 Conn. App. 755, 765, 164 A.3d 702, cert.
denied, 327 Conn. 906, 170 A.3d 2 (2017).
“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 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
Greenspan v. Greenspan
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 [his] 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 in original; internal quotation marks omitted.) Karen v. Loftus, 228 Conn. App. 163, 191–92, 324 A.3d
793, cert. denied, 350 Conn. 924, 325 A.3d 1094 (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 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. . . . 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.” (Citations
omitted; internal quotation marks omitted.) Id., 192.
I
We first address the plaintiff’s claim that the court
applied an incorrect standard of proof at the preliminary hearing to determine whether the judgment should be
opened for the limited purpose of conducting discovery. The plaintiff points to the portion of the court’s
Greenspan v. Greenspan
memorandum of decision stating that the plaintiff presented “no evidence” and “no credible or persuasive evidence” that the defendant held ownership interests in
certain companies while the dissolution action was pending, and that “[t]he [plaintiff’s] belief that the defendant must have had an interest in Green Bella Consulting,
or some other company affiliated with her late father,
is nothing more than mere suspicion . . . .” (Emphasis
added.) The plaintiff argues that this language indicates that the court heightened the standard of proof
of probable cause and “incorrectly evaluated whether
the plaintiff had conclusively provided proof of fraud”
rather than “evaluating whether the evidence supported
a reasonable belief” that fraud may have occurred. The
plaintiff also argues that the court “further compounded
this error by weighing the parties’ conflicting claims and deciding that the defendant had the better evidence and
giving it greater weight.” We are not persuaded.
The interpretation of a trial court’s judgment and the
question of whether the trial court applied an incorrect
legal standard is subject to our plenary review. See,
e.g., Thoma v. Watson, 228 Conn. App. 537, 555, 325
A.3d 955 (2024) (“[w]e construe the plaintiff’s claim as
challenging whether the court applied an incorrect legal
standard, which also requires us to interpret the decision rendered by the court, both of which invoke our plenary
review”). “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
than false.” (Internal quotation marks omitted.) Karen
v. Loftus, supra, 228 Conn. App. 194.
Greenspan v. Greenspan
“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 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 fullblown trial, in the light most favorable to the plaintiff.” (Internal quotation marks omitted.) Id., 195 n.17.
As the plaintiff acknowledges, and we agree, the trial
court correctly recognized that, under Oneglia, the plaintiff had the burden to establish that his allegations of
fraud were founded on probable cause. See Oneglia v.
Oneglia, supra, 14 Conn. App. 270. On the basis of our
plenary review of the court’s judgment, we conclude that
the court properly applied the probable cause standard
of proof. The court evaluated the evidence before it and
concluded that the plaintiff had not established that
there was probable cause to sustain the validity of the
fraud claim because “[t]here was no credible or persuasive evidence suggesting that the defendant may have
had an interest in Green Bella Consulting, Bella Green
Realty, or another company that would have obligated
her to make a disclosure during the [dissolution] proceeding . . . .” The court’s memorandum of decision expressly set forth the probable cause standard and properly identified the governing precedent applicable to evaluating whether a judgment may be opened on the basis
of an alleged fraud. After thoroughly reviewing the
applicable legal principles and analyzing the evidence
presented by the parties, the court ultimately denied
the plaintiff’s motion to open because it found that the
evidence was “too tenuous” and speculative to establish
probable cause. Furthermore, in the trial court’s order
denying the motion to reargue, it specifically concluded
that, “[b]ased on the evidence presented, a person of
ordinary caution, prudence and judgment would not
entertain the claim.” The analysis and conclusion set
forth in the memorandum of decision is fully consistent
with the application of the probable cause standard. See,
Greenspan v. Greenspan
e.g., Karen v. Loftus, supra, 228 Conn. App. 195 n.17
(“[t]he 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” (internal quotation marks omitted)).
We therefore disagree with the plaintiff’s claim that
the court improperly required him to “conclusively”
prove that the defendant committed fraud. Nothing
in the court’s decision indicates that it was operating
under the mistaken belief that the plaintiff was required to prove conclusively that the defendant had committed fraud. Moreover, it was not improper, as the plaintiff appears to claim, for the trial court to evaluate the evidence presented by both parties at the preliminary
hearing and to assess the credibility of the witnesses. As explained previously in this opinion, in applying the probable cause standard, “a court must weigh the evidence,
assess the credibility and demeanor of the witnesses,
and evaluate exhibits offered” to determine whether the
allegations of fraud are supported by more than mere
suspicion. Karen v. Loftus, supra, 228 Conn. App. 195
n.17. Evaluating the evidence and determining whether
that evidence is sufficient to establish the probable validity of a fraud claim is precisely what a court is required to do when making a determination as to probable cause.
Accordingly, we conclude that the trial court did not
apply an incorrect, heightened standard of proof at the
preliminary hearing on the plaintiff’s motion to open.
II
Next, we address the plaintiff’s claim that he presented
circumstantial evidence that was sufficient to establish
probable cause of fraud to warrant further discovery.
“Generally, our decisions have applied a discretionary
standard of review to the denial of a motion to open.”
Id., 192. The specific legal issue raised by the plaintiff, however, warrants the application of a less deferential
Greenspan v. Greenspan
standard of review. See id., 193. The plaintiff claims
that the trial court improperly concluded that he failed
to establish probable cause to substantiate his fraud allegations. “Our Supreme Court has stated that [w]hether
particular facts constitute probable cause is a question
of law.” (Internal quotation marks omitted.) Id. Accordingly, we apply the plenary standard of review to the
plaintiff’s claim. See id.
“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 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 [his] 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.” (Emphasis omitted; internal
quotation marks omitted.) Id., 203.
“[T]he intent to defraud involves a state of mind and,
thus, is usually proven by circumstantial evidence . . . .” (Citation omitted.) Levine v. Levine, 238 Conn. App.
653, 661, 355 A.3d 1144 (2026). “Proof by circumstantial evidence is sufficient where rational minds could
reasonably and logically draw the necessary inferences.”
Aksomitas v. Aksomitas, 205 Conn. 93, 100, 529 A.2d
1314 (1987). Speculative interpretations of evidence,
Greenspan v. Greenspan
however, are insufficient to establish probable cause
as to the existence of fraud beyond a mere suspicion at
a preliminary hearing pursuant to Oneglia. See, e.g.,
Levine v. Levine, supra, 661 (“speculative interpretations of the evidence . . . are insufficient to satisfy the plaintiff’s burden of establishing the existence of fraud beyond a mere suspicion” (internal quotation marks omitted)); Cimino v. Cimino, 174 Conn. App. 1, 12, 164 A.3d
787 (upholding denial of motion to open and concluding
that plaintiff’s belief that defendant misrepresented
the value of his pension during dissolution proceeding
by only stating his contributions was speculation and
conjecture because “there [was] no evidence that the
defendant had knowledge of either the total value of the
pension or the details in the pension booklet that would
allow for a calculation of said value” and, thus, there
was “no probable cause to justify opening the judgment
for the limited purpose of discovery”), cert. denied, 327 Conn. 929, 171 A.3d 455 (2017).
Here, the circumstantial evidence presented by the
plaintiff was far too tenuous for rational minds to reasonably and logically draw the necessary inferences to
conclude that the defendant fraudulently concealed an
ownership interest in a business during the underlying
dissolution proceeding. The 2009 and 2011 biennial
statements for Green Bella Consulting were the only
documents that the plaintiff presented at the preliminary hearing in support of his claim that the defendant might
have had a connection to one of the companies identified
by the plaintiff. Although the 2009 biennial statement
listed the defendant as the CEO and included her alleged
signature as president, the statement did not indicate
whether she had an ownership interest in the company.
The 2011 biennial statement, on the other hand, only
indicated that she was the prior CEO of the company.
Moreover, as the trial court correctly observed, both biennial statements predate by several years the commencement of the dissolution proceeding. The documents that
the plaintiff submitted relating to the other companies
make no reference whatsoever to the defendant. The only
Greenspan v. Greenspan
other evidence offered by the plaintiff to support his
contention that the defendant had an ownership interest
that required disclosure during the dissolution proceeding was his testimony as to his suspicions that certain
companies were named after the defendant and that the
defendant’s father would have left her an interest in
his companies.5 Evidence indicating that the defendant
may have been the CEO of Green Bella Consulting for a
brief period of time approximately seven years before
the commencement of the dissolution proceeding and
that the plaintiff believes, without evidentiary support, that Lawless would have left the defendant an ownership interest in one of his companies is not sufficient to establish beyond a mere suspicion that the defendant
had an ownership interest in Green Bella Consulting or
any company at the time of the dissolution proceeding.
Accordingly, we conclude that the trial court properly
denied the plaintiff’s motion to open the judgment for
the limited purpose of conducting discovery because the
plaintiff failed to establish that there was probable cause to believe that the dissolution judgment was obtained
due, in whole or in part, to the defendant’s fraud.
5
The plaintiff also argues that the trial court improperly concluded that there was not probable cause to substantiate his allegations of fraud because some of its “findings were legally incorrect and unsupported by the record.” Specifically, the plaintiff contends that the trial court improperly assumed that the 2011 biennial statement removing the defendant as the CEO definitively divested the defendant of any ownership interest in Green Bella Consulting. No fair reading of the court’s memorandum of decision and order denying the motion to reargue, however, supports the plaintiff’s contention that the court grounded its probable cause determination on a finding that the defendant was divested of an ownership interest in any of those companies. Rather, it is clear from those rulings that the court instead concluded that the evidence presented by the plaintiff was insufficient to establish beyond a mere suspicion that the defendant held an ownership interest in those companies at the time of the dissolution proceeding. See In re Xavier H., 201 Conn. App. 81, 95, 240 A.3d 1087 (“an opinion must be read as a whole, without particular portions read in isolation, to discern the parameters of its holding” (internal quotation marks omitted)), cert. denied, 335 Conn. 981, 241 A.3d 705 (2020), and cert. denied, 335 Conn. 982, 241 A.3d 705 (2020).
Greenspan v. Greenspan
III
The plaintiff also claims that the court erred in applying “an incorrect burden of proof on the defenses raised
by the defendant.” Specifically, he argues that, “[o]nce
the plaintiff established probable cause to believe that the dissolution judgment was obtained by fraud, the burden
shifted to the defendant to substantiate her defenses
with sufficient evidence” and that, “[b]y accepting [the
defendant’s] unsubstantiated denials and disregarding
the evidence supporting the plaintiff’s claim, the court
effectively reversed the burden of proof.” This claim is
not persuasive.
The defendant did not raise any special defenses to
the plaintiff’s allegations of fraud at the probable cause hearing. During her testimony, the defendant disputed
material facts raised by the plaintiff with respect to his fraud claim. Specifically, she denied that she owned an
interest in Green Bella Consulting, testifying that “[t]his is the first time” she was “seeing anything about any of
these businesses” and that she has “never had any interest” in them. She also testified that she “never received any money” from any of the businesses identified by the
plaintiff nor did she report any such income on any tax
returns, including the joint tax returns that she and
the plaintiff filed during their marriage. She further
denied that she signed the 2009 biennial statement for
Green Bella Consulting. “ ‘[T]here is a distinction between matters which may be proved under a general denial and
matters constituting special defenses [which must be
specially pleaded].’ . . . Bennett v. Chenault, 147 Conn. App. 198, 202, 81 A.3d 1184 (2013). That distinction
‘was enunciated in Pawlinski v. Allstate Ins. Co., [165
Conn. 1, 327 A.2d 583 (1973)], where [our Supreme
Court] observed . . . that [t]he issues to be tried may
be framed in several ways. A denial of a material fact
places in dispute the existence of that fact. Even under
a denial, a party generally may introduce affirmative
evidence tending to establish a set of facts inconsistent with the existence of the disputed fact. . . . If, however, a party seeks the admission of evidence which is consistent
Greenspan v. Greenspan
with a prima facie case, but nevertheless would [independently] destroy the cause of action, the new matter
must be affirmatively pleaded as a special defense.’ . . . Barrows v. J.C. Penney Co., 58 Conn. App. 225, 233,
753 A.2d 404, cert. denied, 254 Conn. 925, 761 A.2d
751 (2000); see also Practice Book § 10-50 (‘No facts may be proved under either a general or special denial except such as show that the plaintiff’s statements of fact are
untrue. Facts which are consistent with such statements
but show, notwithstanding, that the plaintiff has no
cause of action, must be specially alleged.’).” Dorfman
v. Liberty Mutual Fire Ins. Co., 227 Conn. App. 347,
402, 322 A.3d 331 (2024), cert. denied, 351 Conn. 907,
330 A.3d 881 (2025), and cert. denied, 351 Conn. 907,
330 A.3d 882 (2025).
The defendant’s testimony at the probable cause hearing was offered to show that the plaintiff’s material
allegations in support of his fraud claim were untrue.
They were not offered to support an affirmative defense.
Consequently, there was no improper shifting of the
burden of proof. The burden remained at all times on the
plaintiff to establish probable cause, and, as we concluded in part II of this opinion, the plaintiff failed to meet his burden because the evidence he offered at the hearing
was insufficient to establish probable cause to sustain
the validity of his fraud claim.
The judgment is affirmed.
In this opinion the other judges concurred.