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       JOSEPH GRASSO v. JOANNE GRASSO
                 (AC 34951)
                Beach, Sheldon and Bishop, Js.
      Argued May 15—officially released September 30, 2014

  (Appeal from Superior Court, judicial district of
Fairfield, Dolan, J. [dissolution judgment]; Wolven, J.
 [motion for contempt, motion for order]; Klatt, J.
                   [motion to open].)
Nicholas J. Adamucci, for the appellant (defendant).
George J. Markley, for the appellee (plaintiff).
                          Opinion

   BEACH, J. The defendant, Joanne Grasso, appeals
from the rulings of the trial court on various postdissolu-
tion motions. The defendant claims that the court erred
in (1) denying her motion for contempt, (2) declining
to enter an order for payments on an arrearage, and
(3) denying her motion to open because of newly discov-
ered evidence. We affirm the judgments of the trial
court.
   In 2005, the plaintiff, Joseph Grasso, initiated the
present action and sought a dissolution of his marriage
to the defendant. In December, 2006, the court rendered
a judgment of dissolution.
   Two companies, Crystal, LLC (Crystal), a real estate
holding company, and The Original Grasso Construc-
tion, Inc. (Original Grasso), a paving and landscaping
business that is headquartered on a property owned by
Crystal, have roles in the factual background. Prior to
the dissolution judgment, the parties jointly owned the
companies. The judgment of dissolution provided that
the plaintiff was entitled to sole ownership of the com-
panies.
   In its judgment of dissolution, the court ordered the
plaintiff to pay alimony as follows: $22,500 per month
for the period from September 1, 2006, to October 1,
2008; $17,500 per month for the period from November
1, 2008, to August 1, 2016; $10,000 per month for the
period from September 1, 2016, to August 1, 2021; and
alimony was to terminate with the payment due on
August 1, 2021. As a result of various motions filed by
both parties, the plaintiff’s alimony obligation changed.
On December 8, 2010, the court ordered that the plaintiff
pay alimony as follows: ‘‘January 1, 2010, through April
1, the plaintiff pays $1206.64 per week. This pay period
consists of 17 weeks. May 1 through August 31, the
plaintiff pays $6711.29 per week. This pay period con-
sists of 17 weeks. September 1 through December 31,
the plaintiff pays $5878.15 per week. This pay period
consists of 18 weeks.’’ The court ultimately approved an
order that the plaintiff pay $1500 per week in alimony.1
   The subjects of this appeal are the court’s denials of
three postdissolution motions filed by the defendant.
The defendant filed a postjudgment motion for con-
tempt on March 12, 2012, arguing that the plaintiff had
failed to pay alimony in the total amount of $367,000.
Also on that date, the defendant filed a motion for order
of arrearage payments. On August 1, 2012, the court,
Wolven, J., denied the motion for contempt on the
ground that the plaintiff’s failure to pay was not wilful.
Because the court did not expressly rule on the motion
for order of arrearage payments in its decision, the
defendant filed a motion for articulation. In its articula-
tion, the court explained that it had not entered orders
regarding arrearage payments because the plaintiff did
not have the ability to pay amounts in addition to his
current alimony payments. The defendant also filed a
motion to open the judgment of contempt because of
newly discovered evidence. The court denied that
motion. This appeal followed.
                             I
  The defendant claims that the court erred in denying
her motion for contempt. She argues that the court
erred in crediting the plaintiff’s testimony that his only
source of income was Crystal, and that he did not
receive any money from Original Grasso during the time
period in question. She argues that there was documen-
tary evidence that contradicted the plaintiff’s testimony
regarding his income, and, therefore, that the court
erred in crediting the plaintiff’s testimony in that regard.
We disagree.
   In ruling on the defendant’s March, 2012 motion for
contempt, the court determined that in light of the plain-
tiff’s income of approximately $200,000 per year, there
was ‘‘no way’’ he could make alimony payments of
$234,000 per year, and, therefore, his noncompliance
had not been wilful.2 The court credited the plaintiff’s
testimony that he had not derived income from Original
Grasso, which had been in bankruptcy proceedings,
since October, 2010. It further stated that it found credi-
ble the plaintiff’s financial affidavit stating that he
received $3898 per week from Crystal. The court con-
cluded that the income from Crystal, amounting to
approximately $200,000 per year, was not sufficient to
enable the plaintiff to pay alimony in the amount of
$234,000 per year. The court further found that although
some funds derived from Original Grasso had been
spent by the plaintiff’s son, also an employee of Original
Grasso, on gambling, there was no evidence that the
funds had been obtained by the plaintiff himself.
   In its articulation, the court stated that it credited
the plaintiff’s testimony that he had not derived income
from Original Grasso since October, 2010. The court
noted that the defendant’s counsel had submitted
checks and bank statements from Original Grasso and
had cross-examined the plaintiff extensively regarding
transfers and withdrawals. The court stated that the
plaintiff had attributed most of the transfers and with-
drawals to business expenses, such as repairing and
developing a building in Norwalk owned by Crystal.
The court further noted that the plaintiff could not
remember the nature of the remaining transfers and
withdrawals. The court did not agree with the argument
of the defendant’s counsel that there was any ‘‘extrava-
gant adventure,’’ and concluded that the defendant had
not satisfied her burden of proof.
  ‘‘A finding of contempt is a question of fact, and our
standard of review is to determine whether the court
abused its discretion in [finding] that the actions or
inactions of the [alleged contemnor] were in contempt
of a court order. . . . To constitute contempt, a party’s
conduct must be wilful. . . . Noncompliance alone will
not support a judgment of contempt. . . . [T]he credi-
bility of witnesses, the findings of fact and the drawing
of inferences are all within the province of the trier of
fact. . . . We review the findings to determine whether
they could legally and reasonably be found, thereby
establishing that the trial court could reasonably have
concluded as it did.’’ (Internal quotation marks omit-
ted.) Quaranta v. Cooley, 130 Conn. App. 835, 840–41,
26 A.3d 643 (2011).
  The defendant argues that the plaintiff’s testimony,
which the court credited, that he had received no more
than approximately $200,000 per year in income from a
single source, Crystal was contradicted by a bankruptcy
court document that stated, according to the defen-
dant’s interpretation of it, that the plaintiff had received
additional compensation from Original Grasso of
between $250,000 and $275,000 per year from Decem-
ber, 2009 through February, 2012. She argues that, in
determining credibility, greater weight should have
been accorded to the bankruptcy court document than
to the plaintiff’s testimony. We disagree.3
   The bankruptcy court document at issue, which was
admitted as a full exhibit at the hearing, is entitled
‘‘Third Amended Plan of Reorganization.’’ It states in
§ 5.2 (c) that ‘‘[t]he Debtor shall continue to own, oper-
ate and manage [Original Grasso] consistent with and
in accordance with the terms of this Plan. [The plaintiff]
shall continue to own and manage the Debtor. His com-
pensation will be consistent with that received during
the Chap[ter] 11 case, approx[imately] $250,000–
275,000 per year.’’ The bankruptcy court’s recitation of
the plan was dated February 21, 2012.4
  The plaintiff testified that he had not received income
directly from Original Grasso since October, 2010. He
further testified that the bankruptcy court had not
required or ordered him to withdraw money from Origi-
nal Grasso, but, rather, had permitted him to take
between $250,000 and $275,000 in income per year from
Original Grasso, if funds were available for that pur-
pose. He testified, however, that he had not taken any
income from Original Grasso since October, 2010. He
testified that his only source of income was Crystal in
the amount of $3898.46 per week.
   It is within the province of the trial court, as the
fact finder, to decide questions of credibility. Rutka v.
Meriden, 145 Conn. App. 202, 211–12, 75 A.3d 722
(2013). We defer to the trial court in crediting the plain-
tiff’s testimony that he received approximately $200,000
in income per year from Crystal, and that he did not
receive any additional compensation from Original
Grasso. The bankruptcy court document does not nec-
essarily contradict the plaintiff’s testimony in any event:
the plaintiff’s interpretation was that although he had
been permitted to take between $250,000 and $275,000
in income per year, he had not done so.5
   The defendant further argues that the court erred in
crediting the plaintiff’s testimony that he had not taken
or received income from Original Grasso since October,
2010, for another reason as well. She argues that there
was evidence of ‘‘significant’’ cash withdrawals, ‘‘signifi-
cant’’ money transfers, and payments for gambling and
travel expenses on Original Grasso’s account that con-
tradicts the plaintiff’s testimony regarding his not taking
funds from Original Grasso.
   Again, we defer to the trial court’s factual findings.
‘‘The trier is free to accept or reject, in whole or in
part, the testimony offered by either party. . . . That
determination of credibility is a function of the trial
court.’’ (Citation omitted; internal quotation marks
omitted.) Heritage Square, LLC v. Eoanou, 61 Conn.
App. 329, 333, 764 A.2d 199 (2001). At any rate, the
fact that there may have been expenses, transfers, and
withdrawals from Original Grasso’s account does not
necessarily contradict the plaintiff’s testimony that he
had not received income from Original Grasso since
October, 2010. As explained by the court in its articula-
tion, the plaintiff testified at the hearing that most of the
money transfers and withdrawals from Original Grasso
were used to pay business expenses related to Crystal.
The plaintiff had no recollection of the nature of the
few remaining transfers and withdrawals.6 The plaintiff
testified that the gambling expenses were those of his
adult son, an employee of Original Grasso, and that his
son had paid back some of those amounts to Original
Grasso.
  We conclude that the court did not err in finding that
the defendant had not satisfied her burden of proving
that the plaintiff wilfully failed to comply with the
court’s alimony orders.
                             II
  The defendant next claims that the court erred in
declining to order the plaintiff to make payments on
the arrearage. We disagree.
   Central to the defendant’s argument is a prior ruling
by the court, Winslow, J., in which an amount of arrear-
age was found. On May 20, 2011, the court denied a
motion for contempt that had been filed by the defen-
dant on July 7, 2010. The court found that the defendant
had demonstrated that there had been a substantial
shortfall in the plaintiff’s making of alimony payments
since November, 2008. The court noted that it had made
a finding at an earlier hearing on the matter that the
plaintiff owed an arrearage of $201,986.95. The court
further found that the plaintiff had shown a downturn
in his business, which was undergoing reorganization
in bankruptcy, and that his failure to pay was not wilful.
The court stated that it would not enter orders at that
time as to how the arrearage was to be paid.
   The defendant referenced Judge Winslow’s ruling in
her March 12, 2012 motion for order of arrearage pay-
ments (motion for order). In that motion, she stated
that on May 20, 2011, the court had entered orders
finding that the plaintiff owed $201,986.95 in alimony,
but had made no orders at that time regarding the pay-
ment of that arrearage. She further argued that the
plaintiff had continued to fail to pay alimony, and thus
a simultaneous motion for contempt had been filed.
She requested an order as to payments toward the
$201,986.95 arrearage and further orders regarding the
arrearage that had accrued since the time of the prior
finding. When the court ruled on the motion for con-
tempt and found the nonpayment not to be wilful, the
court did not rule on the motion for order.
   The defendant filed a motion for articulation of the
court’s ruling on her March, 2012 motion for contempt.
She requested, inter alia, that the court articulate
whether it had also denied her motion for order when
it denied her motion for contempt, and, if it had done
so, to explain the factual basis for doing so. The court
articulated that there had been insufficient evidence
submitted at the hearing on the motion for contempt
to make a specific determination of the current amount
of the arrearage, and that no order for payments toward
the arrearage had been entered.
  It is well settled that ‘‘[a]n appellate court will not
disturb a trial court’s orders in domestic relations cases
unless the court has abused its discretion or it is found
that it could not reasonably conclude as it did, based
on the facts presented.’’ (Internal quotation marks omit-
ted.) Guaragno v. Guaragno, 141 Conn. App. 337, 344,
61 A.3d 1119 (2013). Factual findings are reviewed
under a clearly erroneous standard. Miller v. Guimar-
aes, 78 Conn. App. 760, 766–67, 829 A.2d 422 (2003).
  The defendant argues that the court’s failure to rule
on the motion for order was tantamount to a denial of
the motion, and such a denial was erroneous because
the court at least should have ordered payments toward
the $201,986.95 arrearage found by Judge Winslow on
May 20, 2011. She contends that ‘‘the fact that [the
arrearage] was larger at the time of the [hearing on
her May, 2012 motion for contempt] didn’t matter. Put
simply, [she] was entitled to a ruling on the amount to
be paid by the [plaintiff] toward the arrearage as found
by Judge Winslow on May 20, 2011.’’
  The court did not err in declining to enter an order
regarding the $201,986.95 in arrearage as found by Judge
Winslow. The court explained in its articulation that it
did not enter an order requiring payments toward the
arrearage contemporaneously with its denial of the
May, 2012 motion for contempt because it had credited
the plaintiff’s testimony that he was not able to pay
more than the $1500 per week that he had been paying
in alimony. The court noted that the plaintiff had ‘‘very
significant personal debt,’’ which was to increase in
October, 2012, when he became liable to various debt-
ors according to his bankruptcy plan. Failure to make
required debt payments would result in the liquidation
of all of the assets of Original Grasso. The court further
articulated that the plaintiff was ‘‘unable to pay his
court ordered alimony payment at this time. No arrear-
age order is entered pursuant to the motion for con-
tempt as [the plaintiff] cannot, at this time, pay more
than the $1500 per week he is currently paying the
defendant. Arrearage will continue to accrue and [the
plaintiff] will be responsible for paying the full amount
of the court ordered alimony when he is able to do so.’’
   In its response to the motion for articulation, the
court effectively ruled on the motion for order. It
explained that it had not entered an order of arrearage
payments because of the plaintiff’s inability to pay. The
court’s finding that the plaintiff was unable to pay more
than $1500 per week was not clearly erroneous. The
plaintiff so testified, and it was within the province of
the trial court to accept his testimony. See Quaranta
v. Cooley, supra, 130 Conn. App. 840–41. The court,
however, did not relieve the plaintiff of his obligation
to pay the arrearage at some point, and noted that the
arrearage would continue to accrue. The court did not
abuse its discretion in declining to enter an order requir-
ing the plaintiff to make payments on the arrearage.
                            III
   The defendant last claims that the court erred in
denying her motion to open. She claims that there was
new evidence corroborating the plaintiff’s receipt of
additional income and demonstrating that he had made
false representations to the court. We disagree.
  On April 29, 2013, more than four months after the
court’s August 1, 2012 ruling on the motion for con-
tempt, the defendant filed a motion to open ‘‘based on
newly discovered evidence and fraud perpetrated on
the court by the plaintiff.’’ In that motion, the defendant
argued that the plaintiff had falsely stated at the hearing
on the defendant’s March, 2012 motion for contempt
that he had not received compensation from Original
Grasso since October, 2010. She claimed that new evi-
dence of falsity had been discovered after the hearing
on her March, 2012 motion for contempt. The evidence
that the defendant claimed to have been newly discov-
ered consisted of conversations between the bank-
ruptcy trustee and the plaintiff in 2010, transcripts of
creditor meetings, and the plaintiff’s 2011 and 2012 cor-
porate operating reports from Original Grasso.
  The court, Klatt, J., denied the motion. It reasoned
that the ‘‘[d]efendant’s motion claims to be based on
newly discovered evidence regarding the plaintiff’s
bankruptcy proceeding. Transcripts from the hearing
before Judge Wolven reveal over 125 pages of testimony
from the plaintiff regarding his income. The court’s . . .
articulation of [its decision on the March, 2012 motion
for contempt] indicated [that] there was extensive testi-
mony regarding the plaintiff’s income, his business, and
the bankruptcy proceedings. The bankruptcy matter
was completed before the hearing began. The defen-
dant’s motion to open evidence appears, in fact, to be
nothing more than a thinly veiled attempt to reargue
the facts and evidence from the hearing before Judge
Wolven.’’
   The defendant argues that the court abused its discre-
tion in denying her motion to open. She contends that
the court erred in determining that her motion was
a ‘‘thinly veiled attempt to reargue’’ the facts at the
contempt hearing, and that the newly discovered evi-
dence demonstrated that the plaintiff falsely testified
at the hearing on the May, 2012 motion for contempt
as to the amount of his income. The defendant argues
that the court should have granted the motion to open
the contempt judgment under the fraud exception to
General Statutes § 52-212a.7
  It is well established that ‘‘[a] judgment rendered may
be opened after the four month limitation [set forth in
§ 52-212a and Practice Book § 17-43] if it is shown that
the judgment was obtained by fraud, in the absence of
actual consent, or because of mutual mistake.’’ (Internal
quotation marks omitted.) Richards v. Richards, 78
Conn. App. 734, 739, 829 A.2d 60, cert. denied, 266 Conn.
922, 835 A.2d 473 (2003).
   A court may grant a motion for a new proceeding
based on newly discovered evidence if the movant
establishes ‘‘by a preponderance of the evidence, that:
(1) the proffered evidence is newly discovered, such
that it could not have been discovered earlier by the
exercise of due diligence; (2) it would be material on
a new [proceeding]; (3) it is not merely cumulative; and
(4) it is likely to produce a different result in a new
[proceeding]. . . . It is within the discretion of the trial
court to determine, upon examination of all the evi-
dence, whether the [movant] has established substan-
tial grounds for a new [proceeding], and the judgment
of the trial court will be set aside on appeal only if it
reflects a clear abuse of discretion.’’ (Internal quotation
marks omitted.) Daniels v. State, 88 Conn. App. 572,
577, 870 A.2d 1109, cert. denied, 274 Conn. 902, 876
A.2d 11 (2005).
  The court did not abuse its discretion in denying the
motion to open. The court reasoned that the bankruptcy
proceedings had concluded before the contempt hear-
ing had begun, and the plaintiff testified extensively at
the contempt hearing regarding his income, business,
and the bankruptcy proceedings. The court, in essence,
reasoned that the defendant had not met her burden
of proving that the evidence could not have been discov-
ered earlier by the exercise of due diligence, and that
it was largely cumulative. The defendant argues that
the evidence could not have been discovered prior to
August 1, 2012, because the plaintiff’s testimony did not
conflict with § 5.2 (c) of the bankruptcy plan until that
date. As we stated in part I of this opinion, the plaintiff’s
testimony did not necessarily conflict with the bank-
ruptcy plan. Rearguing the facts is not a legitimate pur-
pose of a motion to open based on newly discovered
evidence.
      The judgments are affirmed.
      In this opinion the other judges concurred.
  1
     The parties seem to disagree as to whether this was a temporary or
more long-term solution to the plaintiff’s financial situation. This, however,
is not at issue in this appeal.
   2
     In its decision, the court incorrectly stated that the amount due was
$240,000 per year. In its articulation, the court noted that the amount due
per year was $234,000. The court stated that the $6000 difference did not
affect its analysis or decision.
   3
     The hearing on the motion for contempt lasted two days, but the defen-
dant has provided us with only a transcript of the proceedings of the second
day, August 1, 2012. The plaintiff’s testimony that the defendant claims the
court erred in crediting occurred on that day.
   4
     There is no indication that the bankruptcy records show any admissions
by the plaintiff, nor any indication that the court’s observation was necessary
to the decision such that estoppel might be shown. The plaintiff indeed did
not dispute that he received payments from Crystal, which in turn received
payments from Original Grasso.
   5
     On appeal, the defendant argues only that the plaintiff misrepresented
his income by failing to include personal income received from Original
Grasso. She makes no claim that Original Grasso’s income was attributable
to the plaintiff whether or not he took it.
   6
     The defendant argues that the court erred in relying on the plaintiff’s
testimony that his income was properly reflected in his financial affidavit
because there were cash withdrawals from Original Grasso that could have
been used by the defendant personally, and therefore should have been
considered as income. The court, however, credited the plaintiff’s testimony
that most of the money transfers and withdrawals from Original Grasso
were business expenses for Crystal. The court noted in its articulation that
the plaintiff had no recollection regarding the nature of some of the
remaining transfers and withdrawals. The court did not err in crediting the
plaintiff’s testimony as to the business nature of the majority of the transfers
and withdrawals. The court was not obligated as a matter of law to discredit
the plaintiff’s testimony as to the business nature of the majority of the
transfers and withdrawals from Original Grasso or to discredit his financial
affidavit due to his inability to recall the nature of some of the transfers
and withdrawals from Original Grasso. Credibility assessments are the func-
tion of the finder of fact, and we defer to such assessments. Blum v. Blum,
109 Conn. App. 316, 329, 951 A.2d 587, cert. denied, 289 Conn. 929, 958 A.2d
157 (2008).
   The defendant also points to charges paid by Original Grasso for a stay
at the Lodge at Mount Snow, to BMW of North America (BMW) for $1450,
and to a restaurant called Coast Guard House. The plaintiff testified that
the charges to the lodge and the restaurant were his, and that the charge
to BMW was a gift to his daughter. The plaintiff was not asked if the charges
to the lodge and restaurant were business or personal expenses. At any
rate, the charges were, in context, de minimis. See id., 330 n.13 (court’s
denial of a motion includes ‘‘implicit findings that it resolved any credibility
determinations and any conflicts in testimony in a manner that supports
its ruling’’).
   7
     General Statutes § 52-212a provides in relevant part: ‘‘Unless otherwise
provided by law and except in such cases in which the court has continuing
jurisdiction, a civil judgment . . . 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 . . . .’’ See also
Practice Book § 17-4.
