Sousa v. Sousa

ERIC P. SOUSA v. DONNA M. SOUSA

SC 19504

Supreme Court of Connecticut

Argued May 2, 2016

August 30, 2016

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.

William J. Ward, for the appellant (plaintiff).

C. Michael Budlong, with whom were Brandon B. Fontaine and, on the brief, Emily C. Carr, for the appellee (defendant).

Opinion

ROBINSON, J. In this certified appeal, we consider whether it is so "entirely obvious" that a trial court lacks subject matter jurisdiction to modify a property distribution in a dissolution of marriage judgment that such a modification, rendered in accordance with a stipulation by the parties, is subject to collateral attack under Vogel v. Vogel, 178 Conn. 358, 362-63, 422 A.2d 271 (1979), and § 12 of the Restatement (Second) of Judgments.¹ The plaintiff, Eric P. Sousa, appeals, upon our grant of his petition for certification,² from the judgment of the Appellate Court reversing the judgment of the trial court, Hon. Lloyd Cutsumpas, judge trial referee, denying a motion of the defendant, Donna M. Sousa, to vacate a prior judgment, rendered by the court, Resha, J., which "modified, by stipulation, a portion of the judgment of dissolution that ordered that the plaintiff's pension benefits be divided equally between the parties."³ Sousa v. Sousa, 157 Conn. App. 587, 590, 116 A.3d 865 (2015). On appeal, the plaintiff claims that the Appellate Court improperly failed to consider aspects of the doctrine of finality of judgments on the basis of its conclusion that it was "entirely obvious" that, under General Statutes § 46b-81 (a) and General Statutes (Supp. 2016) § 46b-86 (a),⁴ Judge Resha lacked subject matter jurisdiction to modify the pension division in the prior judgment of dissolution. We conclude that: (1) given a conflict in the case law on point and the Superior Court's plenary jurisdiction over family relations matters, the Appellate Court improperly determined that it was "entirely obvious" that Judge Resha lacked subject matter jurisdiction to modify the property distribution in the judgment of dissolution; and (2) considerations of finality of judgments, as set forth in § 12 of the Restatement (Second) of Judgments, do not support permitting the defendant to mount a collateral attack on the modified judgment. Accordingly, we reverse the judgment of the Appellate Court.

The Appellate Court's opinion aptly sets forth the following relevant facts, as found by the trial court, and procedural history. "After a fourteen year marriage, the parties were divorced in an uncontested proceeding on December 19, 2001. Both parties were represented by counsel. . . .

"A separation agreement was prepared and executed which, among other things, provided that the plaintiff's [B]orough of Naugatuck police pension be divided equally via a Qualified Domestic Relations Order . . . .⁵ [That order] was prepared by the defendant's counsel, who received information about the pension from the plaintiff's counsel . . . . A further provision in the agreement called for the plaintiff to pay periodic alimony of $130 per week, subject to termination at the end of five years, or earlier upon the [defendant's] cohabitation or the death of either party.

"Approximately two years after the divorce, the defendant began cohabit[ing] with Tom Spivak, now her husband. Upon becoming aware of the situation, the plaintiff informed the defendant that she was in violation of their divorce agreement and that he would be seeking to terminate the alimony. After some discussion, the defendant informed the plaintiff that she desired to finish her education leading to a teaching degree, higher income and [her own] pension but would need the alimony payments in order to do so. The defendant proposed to waive her right to her share of the plaintiff's pension in exchange for a continuation of the alimony for three years despite her admitted cohabitation. The plaintiff agreed to the proposal and continued to pay the alimony. . . .

"After the conclusion of the five year alimony period established by the terms of the separation agreement, the plaintiff filed a motion to modify judgment in accordance with [the] stipulation . . . to have the full pension returned to him. By agreement, his counsel prepared the motion and the accompanying stipulation, which was signed by both parties and submitted to the court for approval. Both parties appeared in court before Judge . . . Resha on January 2, 2007, the plaintiff with counsel and the defendant appear[ing] as a self-represented litigant.

"During the hearing, Judge Resha canvassed the defendant, asking if she had reviewed the terms and conditions of the stipulation with a family relations officer, to which she replied in the affirmative. The terms of the stipulation were then read into the record. The judge then asked her why she was entering into this agreement, which waived her right to receive any portion of the plaintiff's pension. To her credit, the defendant truthfully replied that it was her idea, pursuant to an agreement entered into three years earlier that provided that the plaintiff would not cease alimony payments and she would relinquish her portion of his pension.

"Judge Resha further asked the defendant if she understood that once she relinquishe[d] any right to the pension it [would] not be able to be addressed by the court in the future—that [the pension] would be [the plaintiff's] from that point on. She once again answered in the affirmative. The judge then asked if [the defendant] was comfortable entering into the agreement without the benefit of an attorney. Again she answered in the affirmative. The court then made a finding that the stipulation was warranted, accepted it and made it a final order of the court. No appeal was ever taken.

"Four years after the entry of the order, [on] March 31, 2011, the defendant filed her [first] motion to open and vacate [the] judgment . . . . In that motion, the defendant allege[d] that the modification [in 2007] was secured by fraud on the part of the plaintiff. On November 2, 2011, the defendant filed a [second] motion to vacate the January 2, 2007 order . . . this time claiming that [Judge Resha] lacked jurisdiction to enter such an order. On November 9, 2011, the defendant filed a motion for counsel fees postjudgment . . . . The matter was heard by the [trial court] on January 14, 2014. Both parties were represented by competent counsel . . . .

"On February 25, 2014, the [trial] court issued a memorandum of decision denying all three of the defendant's motions." (Footnote in original; internal quotation marks omitted.) Sousa v. Sousa, supra, 157 Conn. App. 590-93. With respect to the second motion to vacate, which is at issue in this certified appeal, the trial court "rejected [the defendant's] argument that, in 2007, [Judge Resha] lacked subject matter jurisdiction to modify the order in the judgment of dissolution dividing the plaintiff's pension benefits equally between the parties. The court quoted General Statutes § 52-212a, which provides in relevant part that '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.' Section 52-212a further provides in relevant part that '[t]he parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court . . . .' Guided by that language, the court determined that, although [Judge Resha's] order modifying the judgment of dissolution was entered well over four months after the court rendered the judgment of dissolution, the parties had acquiesced to the court's jurisdiction by submitting a stipulation requesting a modification. Furthermore, the court noted that Judge Resha had canvassed the defendant as to the stipulation, that the defendant had stated her intention to relinquish her claim to the plaintiff's pension benefits, that the defendant had broached the idea of modifying the judgment of dissolution in this way, and that the defendant was comfortable entering into the postdissolution agreement without legal representation. For the foregoing reasons, the court concluded that both parties had waived the four month requirement set forth in § 52-212a and submitted to the jurisdiction of the court. As a result, the court denied the defendant's second motion to vacate."⁶ (Footnote omitted.) Id., 593-94.

The defendant appealed from the judgment of the trial court denying her three motions to the Appellate Court. Id., 594. With respect to the defendant's second motion to vacate, the Appellate Court agreed with the defendant's claim that, in 2007, Judge Resha "lacked subject matter jurisdiction to modify the order in the judgment of dissolution dividing the plaintiff's pension benefits equally between the parties." Id., 595. Relying on its decision in Stechel v. Foster, 125 Conn. App. 441, 446-47, 8 A.3d 545 (2010), cert. denied, 300 Conn. 904, 12 A.3d 572 (2011), the Appellate Court stated that a "property distribution order may be modified only if a party files a motion to open requesting a modification within four months of the judgment of dissolution or, if the motion is filed on the basis of fraud, promptly upon the discovery of fraud. . . . Here, [the] pension benefits are considered to be property distributable under § 46b-81 (a) . . . [and] at the time of dissolution, [the defendant was] awarded . . . one half of the plaintiff's pension benefits, [under] the parties' separation agreement, which [was] incorporated into the judgment of dissolution. Neither party filed a motion to open, either within four months of the judgment of dissolution or on the basis of fraud, requesting a modification of the order regarding the plaintiff's pension benefits. Therefore, by subsequently modifying the order dividing the plaintiff's pension benefits equally between the parties, ...