Levine v. Levine

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Levine v. Levine

ERIC LEVINE v. TRACY LEVINE
(AC 48001)
Alvord, Westbrook and DiPentima, Js.

Syllabus

The plaintiff appealed following the trial court’s denial of his motion to open
the dissolution judgment to allow discovery of the defendant’s allegedly
fraudulent financial disclosure of the value of her share in her employer’s
medical practice. The plaintiff claimed that the trial court improperly deter-
mined that he failed to establish a preliminary showing of probable cause
concerning fraud and made erroneous findings of fact. Held:

The trial court did not abuse its discretion in denying the plaintiff’s motion
to open, as the plaintiff had failed to establish probable cause that the defen-
dant had committed fraud to warrant discovery and further proceedings.

The plaintiff failed to establish that the defendant knew as untrue at the
time of her financial disclosure that her interest in her employer’s medical
practice was zero and that the defendant intended to cause his detrimental
reliance on said disclosure.

The trial court’s findings regarding whether the plaintiff read certain
provisions in the defendant’s employment agreement and the defendant’s
testimony as to whether the value of her share in her employer’s medical
practice could be quantified at the time of the financial disclosure were not
clearly erroneous, and any error was harmless.

Argued January 5—officially released April 28, 2026

Procedural History

Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial
district of Hartford and tried to the court, Bozzuto, J.;
judgment dissolving the marriage and granting cer-
tain other relief; thereafter, the court, Carrasquilla, J.,
denied the plaintiff’s motion to open the judgment, and
the plaintiff appealed to this court. Affirmed.
Kenneth J. Bartschi, with whom were Michael A.
Lanza and, on the brief, Eric Levine, self-represented,
the appellant (plaintiff).
James M. Ruel, for the appellee (defendant).
Levine v. Levine

Opinion

PER CURIAM. The plaintiff, Eric Levine, appeals
from the trial court’s denial of his motion to open the
judgment dissolving his marriage to the defendant, Tracy
Levine. On appeal, he argues that the court (1) improperly
concluded that he failed to make a preliminary showing
of probable cause concerning the existence of fraud and
(2) made erroneous factual findings. We affirm the judg-
ment of the trial court.
The following facts, as summarized from the court’s
decision on the motion to open or otherwise supplemented
by the record, and procedural history are relevant to our
resolution of the plaintiff’s appeal. The parties were
married on August 14, 1993. In 2017, the plaintiff filed
a complaint seeking to dissolve his marriage to the defen-
dant on the grounds of irretrievable breakdown. The
defendant filed a financial affidavit on May 1, 2018.
Relevant to this appeal is the section entitled “Business
Interest . . . .” Under that section she listed the name
of her employer, Starling Physicians (Starling), as the
“Name of Business,” and she stated “0” on the line “Total
Net Value of Business Interest . . . .” The parties entered
into a settlement agreement, which the court, Bozzuto,
J., incorporated by reference into the May 1, 2018 judg-
ment of dissolution.
On January 24, 2024, the plaintiff filed a motion to
open, alleging that the defendant committed fraud by
stating on her financial affidavit that the value of her
share in Starling was zero. The plaintiff sought discovery
regarding the value of the defendant’s financial inter-
est in Starling. Following a preliminary hearing, the
court, Carrasquilla, J., denied the motion to open in an
August 7, 2024 memorandum of decision, concluding
that the plaintiff had not established probable cause to
warrant further discovery into his allegations of fraud.
Levine v. Levine

This appeal followed. Additional facts will be set forth
as necessary.
I
Before addressing the plaintiff’s claims, we set forth
our standard of review and relevant legal principles gov-
erning fraud claims in the context of a motion to open
filed in a marital dissolution action. “A marital judgment
based upon a stipulation may be opened if the stipula-
tion, and thus the judgment, was obtained by fraud.”
Billington v. Billington, 220 Conn. 212, 217–18, 595
A.2d 1377 (1991). Although a motion to open a judgment
normally must be filed within four months of entry of
the judgment, a motion to open on the basis of fraud is
not subject to this limitation. Veneziano v. Veneziano,
205 Conn. App. 718, 726, 259 A.3d 28 (2021); see also
General Statutes § 52-212a.
“[A] party seeking to obtain discovery related to alleg-
edly fraudulent conduct that transpired prior to the entry
of judgment must . . . (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 postjudg-
ment 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 omit-
ted; internal quotation marks omitted.) Karen v. Loftus,
228 Conn. App. 163, 192, 324 A.3d 793, cert. denied,
350 Conn. 924, 325 A.3d 1094 (2024).
The preliminary hearing conducted on a motion to open
on the basis of fraud “is not intended to be a full scale
trial on the merits of the [moving party’s] claim. . . . If
the moving party demonstrates to the court that there is
probable cause to believe that the judgment was obtained
by fraud, the court may permit discovery.” (Internal
quotation marks omitted.) Cimino v. Cimino, 174 Conn.
App. 1, 6, 164 A.3d 787, cert. denied, 327 Conn. 929, 171
Levine v. Levine

A.3d 455 (2017). To obtain postjudgment discovery, the
moving party must establish at a preliminary hearing the
allegations of fraud “beyond a mere suspicion.” Brody
v. Brody, 153 Conn. App. 625, 636, 103 A.3d 981, cert.
denied, 315 Conn. 910, 105 A.3d 901 (2014).
It is well established that, in general, we “do not under-
take a plenary review of the merits of a decision of the
trial court to grant or to deny a motion to open a judg-
ment. . . . 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 [as] long as the court could reasonably conclude
as it did.” (Internal quotation marks omitted.) Conroy
v. Idlibi, 343 Conn. 201, 204, 272 A.3d 1121 (2022).
Applying these general principles to the present case,
we apply an abuse of discretion standard to the court’s
ultimate determination to deny the plaintiff’s motion to
open; id.; a clearly erroneous standard of review to the
trial court’s factual findings; Hebrand v. Hebrand, 216
Conn. App. 210, 216, 284 A.3d 702 (2022) (in reviewing
court’s denial of motion to open based on fraud, court’s
factual findings will not be disturbed unless they are
clearly erroneous); and a plenary review standard to the
plaintiff’s claim that the court improperly concluded
that he failed to establish probable cause to substantiate
his fraud allegations. See Karen v. Loftus, supra, 228
Conn. App. 193 (“[T]he 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. . . . [W]hether particular facts constitute
probable cause is a question of law. . . . Accordingly, we
apply the plenary standard of review to the plaintiff’s
claim.” (Citations omitted; internal quotation marks
Levine v. Levine

omitted.)). With these principles in mind, we turn to
the plaintiff’s claims.
II
The plaintiff claims that the court improperly con-
cluded that he failed to make a preliminary showing
of probable cause concerning the existence of fraud to
warrant further discovery and additional proceedings.
We are not persuaded.
“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 rep-
resentation 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.” (Internal quotation marks
omitted.) Id., 203.
As to the first element of fraud, the court found that
the defendant made a statement that “was not accurate”
on her financial affidavit by listing the total net value
of her interest in Starling as zero, contrary to her own
testimony at the preliminary hearing that her share
held a face value of $1000, representing her principal
investment. As to the fourth element of fraud, the court
found that the plaintiff relied on the defendant’s finan-
cial affidavit in arriving at a dissolution agreement. The
court, however, found that the plaintiff had not satis-
fied his burden to demonstrate the existence of probable
cause as to the second and third elements of fraud. The
plaintiff challenges these two findings and the court’s
resultant conclusions.
Specifically, the court reasoned that there was insuf-
ficient evidence to demonstrate the existence of probable
cause that the defendant made a statement she knew was
untrue at the time she signed her financial affidavit and
that her financial affidavit was made with the intention
of inducing detrimental reliance. The court noted that,
Levine v. Levine

at the time of the dissolution, there was no discussion
or potential of a possible sale of Starling and that the
sale of Starling to Village Medical did not occur until
five years after the judgment of dissolution. The court
further found that, if all shareholders did not vote in
favor of the Village Medical acquisition, the sale could
not have occurred, meaning that other shareholders
could have prevented the defendant from receiving the
current value for her share. The court determined that,
if Starling had not been purchased, the value of the
defendant’s share would remain at zero, or the principal
investment of $1000 would be returned to her pursuant
to her employment agreement upon her separation from
employment.
Applying the “flexible, commonsense standard of prob-
able cause that would warrant a person of ordinary cau-
tion, prudence and judgment to entertain a bona fide
belief in the existence of the claim of fraud”; Karen v.
Loftus, supra, 228 Conn. App. 204; we conclude that
the court properly determined that the plaintiff had not
satisfied his burden with respect to the second and third
elements of fraud. The only direct evidence presented
at the preliminary hearing concerning the defendant’s
reason for listing her interest in Starling as zero came
from the defendant’s testimony. When questioned on
direct examination why she listed her business inter-
est in Starling as zero on her financial affidavit, the
defendant responded, “[a]t the time that [the plaintiff]
and I were working on our financial affidavits, I wasn’t
sure what I should put as the number on that line. So,
I sought information from my senior partners in the
practice and asked them what I should put; if I were to
leave, what would the value of my share in Starling be?
And I was told that it would be nothing. There wasn’t
a buyout. You didn’t get, you know, payment. The only
payment you would receive upon leaving, whether it
was retirement or just termination, would be whatever
accounts receivable were outstanding at the time of your
departure, and that there wasn’t any cash buyout to be
given at the time of your departure. And so, I brought
Levine v. Levine

that information back to mediation and to [the plaintiff],
and we agreed to put zero because we couldn’t come up
with any other number.”
Thus, according to the defendant’s testimony, she
took information from the senior partners back to the
mediation, and then she and the plaintiff “agreed” that,
as to her share in Starling, she would “put zero because
we couldn’t come up with any other number.” It is clear
from the court’s decision that it credited the defendant’s
testimony as to her state of mind and intentions at the
time of the signing of her financial affidavit. “[A]s a gen-
eral rule, appellate courts do not make credibility deter-
minations. [I]t is within the province of the trial court,
when sitting as the fact finder, to weigh the evidence
presented and determine the credibility and effect to be
given the evidence. . . . Credibility must be assessed . . .
not by reading the cold printed record, but by observing
firsthand the witness’ conduct, demeanor and attitude.
. . . An appellate court must defer to the trier of fact’s
assessment of credibility because [i]t is the [fact finder]
. . . [who has] an opportunity to observe the demeanor
of the witnesses and the parties; thus [the fact finder] is
best able to judge the credibility of the witnesses and to
draw necessary inferences from them.” (Internal quota-
tion marks omitted.) Cimino v. Cimino, supra, 174 Conn.
App. 11; see also id. (relying on trial court’s credibility
determinations of party’s testimony as to accuracy of
disclosures on financial affidavit when affirming denial of
motion to open dissolution judgment on ground of fraud).
The plaintiff argues that (1) the defendant’s having
signed and executed, prior to the dissolution judgment,
an employment agreement with Starling, which provided
that she had a share in Starling and (2) the testimony of
the defendant at the preliminary hearing that she had
inquired with the senior partners as to the value of her
share and that she would be entitled to her accounts
receivable in the event she departed Starling, establishes
probable cause that the defendant knew at the time of
the signing of her financial affidavit that the value of
Levine v. Levine

her share was more than zero.1 He further contends that
the only purpose the defendant could have for listing her
1
The plaintiff also argues that the court improperly failed to men-
tion in its decision the defendant’s accounts receivable and improperly
failed to determine whether there was probable cause to believe that
the defendant’s nondisclosure of her accounts receivable amounted to
fraud. He further contends that the court improperly failed to find that
he established the existence of probable cause for fraud on the basis
that the defendant failed to list on her financial affidavit that she had
a share in Starling.
“It is well established that a party cannot obtain appellate review of a
claim challenging a finding or determination that the court did not make.
It is the responsibility of the appellant to provide an adequate record for
review. . . . It is well established that [a]n articulation is appropriate
where the trial court’s decision contains some ambiguity or deficiency
reasonably susceptible of clarification. . . . [P]roper utilization of the
motion for articulation serves to dispel any . . . ambiguity by clarify-
ing the factual and legal basis upon which the trial court rendered its
decision, thereby sharpening the issues on appeal. . . . Our role is not
to guess at possibilities . . . but to review claims based on a complete
factual record developed by a trial court. . . . Without the necessary
factual and legal conclusions furnished by the trial court . . . any deci-
sion made by us respecting [the appellant’s claims] would be entirely
speculative. . . . It is, therefore, the responsibility of the appellant to
move for an articulation or rectification of the record where the trial
court has failed to state the basis of a decision . . . to clarify the legal
basis of a ruling . . . or to ask the trial judge to rule on an overlooked
matter.” (Emphasis in original; internal quotation marks omitted.) Burr
v. Grossman Chevrolet-Nissan, Inc., 224 Conn. App. 668, 678, 315 A.3d
414 (2024); D2E Holdings, LLC v. Corp. for Urban Home Ownership of
New Haven, 212 Conn. App. 694, 712–13, 277 A.3d 261, cert. denied,
345 Conn. 904, 282 A.3d 981 (2022); see Practice Book § 61-10 (a).
First, the court did not address the issue of accounts receivable. Second,
the court did not address the issue of whether the plaintiff established
probable cause concerning fraud as to the defendant’s having left blank
the line on her financial affidavit for “Percent Owned” after having listed
Starling under “Business Interest . . .” and representing that the net
value of that business interest was zero. Rather, the court addressed
the issue of the defendant having listed her interest in Starling as
zero. In that regard, the court found that “the evidence supports the
reasonable conclusion that the defendant did in fact make a statement
that was not accurate in her May, 2018 financial affidavit. She stated
that the total net value was zero with regards to her share in Starling
. . . . She testified at the subsequent hearing that the share holds a face
value of $1000 which represents the principal amount paid.”
On the basis of the record before us, which contains no factual find-
ings on the matters of accounts receivable or any failure on the part
of the defendant to disclose the existence of her share in Starling, we
Levine v. Levine

interest in Starling as zero was to cause the plaintiff to
detrimentally rely on that statement.
These are speculative interpretations of the evidence
that are insufficient to satisfy the plaintiff’s burden
of establishing the existence of fraud “beyond a mere
suspicion”; Brody v. Brody, supra, 153 Conn. App. 636.
Although the intent to defraud involves a state of mind
and, thus, is usually proven by circumstantial evidence;
DeLuca v. C. W. Blakeslee & Sons, Inc., 174 Conn. 535,
546, 391 A.2d 170 (1978); rational minds could not rea-
sonably and logically draw the necessary inferences from
this evidence. See Aksomitas v. Aksomitas, 205 Conn.
93, 100, 529 A.2d 1314 (1987) (“[p]roof by circumstan-
tial evidence is sufficient where rational minds could
reasonably and logically draw the necessary inferences”).
Evidence that the defendant knew of the existence of her
business interest in Starling and knew that she would be
entitled to her accounts receivable if she left the practice
is not sufficient, as the plaintiff’s view of the evidence
would suggest, to establish beyond a mere suspicion that
the defendant knew at the time she signed her affidavit
that listing her interest in Starling as zero was untrue.
Nor was there evidence sufficient to establish that she
had the intention of inducing detrimental reliance.
For the foregoing reasons, we conclude that the court’s
findings that the defendant did not know the challenged
statements on her financial affidavit were untrue at the
time she signed her affidavit and that she did not intend
to induce reliance are supported by the record. In the
exercise of plenary review; see Karen v. Loftus, supra,
228 Conn. App. 193; we determine that the court properly
concluded that the plaintiff failed to establish probable
cause to substantiate his fraud allegations beyond a mere
suspicion. Accordingly, we conclude that the court did
not abuse its discretion in denying the plaintiff’s motion
to open.
cannot conclude that the court abused its discretion in denying the
motion to open.
Levine v. Levine

III
Lastly, the plaintiff claims that several of the court’s
factual findings were clearly erroneous. We conclude
that any error was harmless.
“It is well established that [a]ppellate review of a trial
court’s findings of fact is governed by the clearly errone-
ous standard of review. . . . A finding of fact is clearly
erroneous when there is no evidence in the record to
support it . . . or when although there is evidence to sup-
port it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has
been committed. . . . [W]here . . . some of the facts found
[by the trial court] are clearly erroneous and others are
supported by the evidence, we must examine the clearly
erroneous findings to see whether they were harmless, not
only in isolation, but also taken as a whole. . . . If, when
taken as a whole, they undermine appellate confidence
in the court’s [fact-finding] process, a new hearing is
required. . . . In a civil case, [t]he harmless error standard
. . . is whether the improper ruling would likely affect
the result.” (Citations omitted; internal quotation marks
omitted.) Rader v. Valeri, 223 Conn. App. 243, 260, 308
A.3d 66, cert. denied, 348 Conn. 959, 312 A.3d 37 (2024).
The plaintiff contends that the court erroneously found
that the defendant testified that her share in Starling did
not carry a value that could be quantified until discus-
sions of a potential acquisition of Starling took place,
despite her testimony that the senior partners told her
that her share was worth “nothing.” The plaintiff fur-
ther contends that the court erroneously found that he
read the defendant’s employment agreement, which the
defendant would not have signed but for the plaintiff’s
review, despite the defendant’s testimony that she did
not remember if she had relied upon the plaintiff’s advice
as an attorney when signing the employment agreement.2
2
The plaintiff also argues that the court erroneously found that the
defendant’s employment agreement was referenced in the separation
agreement and that the separation agreement permitted the defendant
Levine v. Levine

We conclude that any error in these factual findings
was harmless. Because there is unchallenged evidence
supporting the court’s determination of no probable
cause, whether the plaintiff read and was aware of certain
provisions in the defendant’s employment agreement is
not a finding that would have affected the ruling on this
motion. In other words, it does not affect the court’s
conclusions that the defendant did not know at the time
that her statements on her financial affidavit regard-
ing the value of her share in Starling were inaccurate
nor did she make such statements with the intention of
inducing detrimental reliance. Likewise, whether, as the
court stated, the defendant testified that the Starling
share did not carry a value that could be quantified until
discussions of a potential sale took place or whether, as
the record reflects, the defendant testified that the senior
partners informed her that, if she were to leave, the
value of her share would be nothing, there exists other
evidence in the record that the defendant did not intend
to induce detrimental reliance or to make statements
that she knew were untrue at the time of the signing
of the financial affidavit. Significantly, the defendant
credibly testified that she took the information about
the value of her share to the mediation where both par-
ties agreed that she should list the value of her share as
zero. When taken as a whole with those facts supported
by the evidence, the challenged factual findings are not
likely to have affected the result.
The judgment is affirmed.

to retain her profit sharing plan with Starling. These findings are
not clearly erroneous. The separation agreement provided that “the
[defendant] shall retain . . . her Starling Physicians profit sharing
plan (including monies she has yet to receive).” This provision of the
separation agreement not only allows the defendant to keep her profit
sharing plan with Starling, but the reference to Starling’s profit sharing
plan reasonably could be characterized as a reference to the defendant’s
employment agreement with Starling. In light of this provision in the
separation agreement, we are not left with the definite and firm con-
viction that a mistake has been committed. See Rader v. Valeri, supra,
223 Conn. App. 260.