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Sousa v. Sousa

Supreme Court of Connecticut

August 30, 2016

ERIC P. SOUSA
v.
DONNA M. SOUSA

          Argued May 2, 2016

          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).

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

          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, [Judge Resha] acted outside of [his] jurisdictional authority under § 46b-86 (a).'' (Citations omitted.) Sousa v. Sousa, supra, 157 Conn.App. 596.

         The Appellate Court further emphasized that the ‘‘fact that the parties submitted a stipulation requesting that the court modify the order in the judgment of dissolution regarding the pension benefits has no bearing on the court's lack of jurisdiction to modify that order.'' Id., 596-97. The Appellate Court explained that § 52-212a, which ‘‘permits parties to waive the statutory deadline imposed on the filing of motions to open and to submit to jurisdiction otherwise conferred on a court by statute, '' did not confer that jurisdiction on Judge Resha. Id., 597. Finally, the Appellate Court rejected the plaintiff's reliance on Urban Redevelopment Commission v. Katsetos, 86 Conn.App. 236, 860 A.2d 1233 (2004), cert. denied, 272 Conn. 919, 866 A.2d 1289 (2005), for the proposition that ‘‘the doctrine of finality of judgments precludes the defendant's claim regarding [Judge Resha's] lack of subject matter jurisdiction, '' reasoning that ‘‘it is entirely obvious that § 46b-86 (a) unequivocally deprives a court of subject matter jurisdiction to enter postdissolution orders modifying property distribution provisions in a judgment of dissolution. Therefore, we need not apply the factors set forth in Urban Redevelopment Commission to determine whether the doctrine of finality of judgments precludes the defendant's subject matter jurisdiction claim.'' (Emphasis added.) Sousa v. Sousa, supra, 157 Conn.App. 559-601. Determining that it was unnecessary to reach the defendant's challenge to the trial court's denial of the first motion to vacate, which was based on fraud; see footnote 6 of this opinion; the Appellate Court reversed the judgment of the trial court in part and remanded the case to that court ‘‘with direction to grant the defendant's second motion to vacate; the judgment is vacated as to the denial of the defendant's first motion to vacate; the judgment is affirmed in all other respects.''[7] Id., 601. This certified appeal followed. See footnote 2 of this opinion.

         On appeal, the plaintiff claims that the Appellate Court improperly failed to consider principles of finality of judgments in allowing the defendant to make a belated collateral attack on Judge Resha's modification to the underlying judgment of dissolution, in light of its conclusion that it was ‘‘entirely obvious'' that Judge Resha lacked subject matter jurisdiction. He relies on, inter alia, Monroe v. Monroe, 177 Conn. 173, 413 A.2d 819, cert. denied, 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979), and Vogel v. Vogel, supra, 178 Conn. 358, and posits that the ‘‘principle of finality'' has ‘‘moderated'' the ‘‘traditional view'' that ‘‘subject matter jurisdiction could be traditionally attacked both directly and collaterally.'' The plaintiff emphasizes that the Superior Court is a court of general jurisdiction that had the institutional competence to consider the challenged stipulation between the parties, which was not so far outside of Judge Resha's jurisdiction to modify periodic alimony payments under § 46b-86 (a) as to create an ‘‘entirely obvious'' jurisdictional defect. Applying principles of finality of judgments; see, e.g., Urban Redevelopment Commission v. Katsetos, supra, 86 Conn.App. 236; the plaintiff then relies on, inter alia, Daly v. Daly, 19 Conn.App. 65, 561 A.2d 951 (1989), and Morris v. Irwin, 4 Conn.App. 431, 494 A.2d 626 (1985), to contend that Judge Resha's modification of the pension distribution portion of the dissolution judgment should receive the benefit of finality, regardless of any jurisdictional defect, because it was four years old when attacked, the defendant was ‘‘fully aware'' of the consequences of the stipulation underlying the modification, and she had the ‘‘opportunity to fully litigate'' subject matter jurisdiction in 2007.

         Beyond mounting procedural defenses to the plaintiff's claims in this certified appeal, namely that he failed to preserve them before the trial court[8] or adequately brief them in this court, [9] the defendant argues that the Appellate Court properly determined under, for example, In re Shamika F., 256 Conn. 383, 408, 773 A.2d 347 (2001), that it need not conduct a full finality of judgments analysis because it is ‘‘entirely obvious'' that Judge Resha lacked subject matter jurisdiction to modify the original division of the plaintiff's pension. Citing, inter alia, Stechel v. Foster, supra, 125 Conn.App. 446- 47, and Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980) (per curiam), the defendant emphasizes that the Superior Court's authority to transfer property in a dissolution proceeding is granted by statute, and that under §§ 46b-81 and 46b-86 (a), the court lacks continuing jurisdiction to modify such distributions. She emphasizes that the parties cannot confer such jurisdiction with their consent or waiver, thus rendering Judge Resha's lack of jurisdiction ‘‘entirely obvious'' under this court's decision in Broaca v. Broaca, 181 Conn. 463, 468, 435 A.2d 1016 (1980). Finally, relying on Broaca, the defendant argues that, even under the principles regarding the finality of judgments set forth in Urban Redevelopment Commission v. Katsetos, supra, 86 Conn.App. 236, the equities do not preclude an attack on the modified judgment because she was self-represented, she did not actually litigate the issue of jurisdiction before Judge Resha in 2007, and the mosaic theory of property distribution counsels in favor of maintaining the original orders. We agree, however, with the plaintiff, and conclude that: (1) it was not ‘‘entirely obvious'' that Judge Resha lacked subject matter jurisdiction to modify the judgment of dissolution; and (2) finality considerations preclude a collateral attack on Judge Resha's modification of the judgment.

         The issues presented in this certified appeal ‘‘[implicate] the issue of subject matter jurisdiction. As a preliminary matter, we note that [i]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged. . . . When reviewing an issue of subject matter jurisdiction on appeal, [w]e have long held that because [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary. . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal.'' (Citation omitted; internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 531-32, 46 A.3d 102 (2012); see also Investment Associates v. Summit Associates, Inc., 309 Conn. 840, 848, 74 A.3d 1192 (2013) (collateral attack on judgment).

         I

         Although challenges to subject matter jurisdiction may be raised at any time, it is well settled that ‘‘[f]inal judgments are . . . presumptively valid . . . and collateral attacks on their validity are disfavored.'' (Citations omitted.) Hirtle v. Hirtle, 217 Conn. 394, 401, 586 A.2d 578 (1991). ‘‘The reason for the rule against collateral attack is well stated in these words: The law aims to invest judicial transactions with the utmost permanency consistent with justice. . . . Public policy requires that a term be put to litigation and that judgments, as solemn records upon which valuable rights rest, should not lightly be disturbed or overthrown. . . . [T]he law has established appropriate proceedings to which a judgment party may always resort when he deems himself wronged by the court's decision. . . . If he omits or neglects to test the soundness of the judgment by these or other direct methods available for that purpose, he is in no position to urge its defective or erroneous character when it is pleaded or produced in evidence against him in subsequent proceedings. Unless it is entirely invalid and that fact is disclosed by an inspection of the record itself the judgment is invulnerable to indirect assaults upon it.'' (Emphasis added; internal quotation marks omitted.) In re Shamika F., supra, 256 Conn. 406-407.

         First stated in Vogel v. Vogel, supra, 178 Conn. 362-63, it is now well settled that, ‘‘[u]nless a litigant can show an absence of subject matter jurisdiction that makes the prior judgment of a tribunal entirely invalid, he or she must resort to direct proceedings to correct perceived wrongs . . . . A collateral attack on a judgment is a procedurally impermissible substitute for an appeal. . . . [A]t least where the lack of jurisdiction is not entirely obvious, the critical considerations are whether the complaining party had the opportunity to litigate the question of jurisdiction in the original action, and, if he did have such an opportunity, whether there are strong policy reasons for giving him a second opportunity to do so.'' (Citation omitted; emphasis added; internal quotation marks omitted.) In re Shamika F., supra, 256 Conn. 407-408.

         These principles are consistent with the modern law of civil procedure reflected in § 12 of the Restatement (Second) of Judgments; see footnote 1 of this opinion; which this court first embraced in draft form in Vogel v. Vogel, supra, 178 Conn. 362-63, and Monroe v. Monroe, supra, 177 Conn. 178. See footnote 18 of this opinion. Specifically, § 12 of the Restatement (Second) of Judgments reflects the belief of the American Law Institute, shared by this court, that ‘‘giv[ing] an expansive interpretation to the concept of subject matter jurisdiction would . . . undermine significantly the doctrine of res judicata, and . . . eliminate the certainty and finality in the law and in litigation which the doctrine is designed to protect. . . . A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. . . . Lesser irregularities do not make a final judgment void.'' (Citation omitted; emphasis added; internal quotation marks omitted.) Vogel v. Vogel, supra, 363; see Hirtle v. Hirtle, supra, 217 Conn. 401; Meinket v. Levinson, 193 Conn. 110, 114, 474 A.2d 454 (1984); Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 560, 468 A.2d 1230 (1983); 1 Restatement (Second), Judgments § 12, comment (b), pp. 118-19 (1982). Indeed, we recently noted our ‘‘continue[d] . . . agree[ment] with the vitality of this rule . . . .'' Investment Associates v. Summit Associates, Inc., supra, 309 Conn. 855.

         Thus, to be ‘‘entirely obvious'' and sustain a collateral attack on a judgment under the principles contained within § 12 of the Restatement (Second) of Judgments, a jurisdictional deficiency must amount to a ‘‘fundamental mistake'' that is ‘‘so plainly beyond the court's jurisdiction that its entertaining the action was a manifest abuse of authority.'' (Internal quotation marks omitted.) Cameron v. Rollo, 196 Vt. 346, 351, 97 A.3d 454 (2014); cf. id., 350-52 (declining to give collateral estoppel effect to family court's refusal to exercise statutorily conferred exclusive jurisdiction over property distribution in annulment case). Indeed, the United States Supreme Court has observed that such collateral attack should be permitted only in ‘‘rare instance[s], '' and ‘‘only for the exceptional case in which the court that rendered judgment lacked even an ‘arguable basis' for jurisdiction.'' United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010). ‘‘[T]he importance of finality in litigation means that the exception to the claim preclusion rule applies in only the most limited circumstances.'' (Emphasis added.) Lincoln Loan Co. v. Portland, 340 Or. 613, 628, 136 P.3d 1 (2006); accord Meinket v. Levinson, supra, 193 Conn. 114 (relying on § 12 of Restatement [Second] of Judgments in stating that collateral attack on court's subject matter jurisdiction in ‘‘contested case'' is ‘‘limited''); Broaca v. Broaca, supra, 181 Conn. 473 (Peters, J., dissenting) (‘‘I would emphasize the truly exceptional nature of the ‘plainly beyond' cases'' [emphasis added]).

         Our cases demonstrate that it is extraordinarily rare for a tribunal's jurisdiction to be so plainly lacking that it is ‘‘entirely obvious.'' Most significantly, in Vogel, this court rejected a collateral attack on an alimony order in a dissolution judgment, rendered more than twenty years earlier, which a husband later claimed was void because, ‘‘at the time judgment was rendered, the law in this state . . . provided that the trial court was without authority to assign any of the husband's property to a woman divorced for her own misconduct. Since the [husband] obtained a divorce on the ground of the [wife's] wilful desertion . . . it is argued that the court had no power to order the weekly payments at issue . . . .'' (Citation omitted; footnote omitted.) Vogel v.Vogel, supra, 178 Conn. 361-62. The court reasoned that, ‘‘[a]t the time judgment was rendered, '' the governing statutes gave the Superior Court ‘‘exclusive jurisdiction'' over dissolution cases, and authorized property distribution and alimony payments. (Internal quotation marks omitted.) Id., 363. Accordingly, this court determined that the trial court ‘‘had competence to entertain the action before it, '' and rejected the collateral attack on the judgment, which had resulted from a stipulation by the parties. (Internal quotation marks omitted.) Id., 363-64; see also, e.g., In re Shamika F., supra, 256 Conn. 407-408 (rejecting collateral attack on order of temporary custody because ‘‘[t]he lack of jurisdiction, if any, was far from obvious'' and ‘‘[a]llowing a collateral attack three years into that effort would undermine the purpose of the collateral attack rule as well as the goal of our state agencies in protecting the neglected children of Connecticut'' [internal quotation marks omitted]); Meinket v.Levinson, supra, 193 Conn. 115 (rejecting collateral attack on default judgment, rendered without affidavit of debt or hearing in damages, because court was competent to entertain action and ‘‘[s]uch an error in applying the Practice Book rules governing judgments following default is not even arguably jurisdictional''); accord Torrington ...


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