Opinion
No. FA 03-0733285S
May 14, 2009
MEMORANDUM OF DECISION RE DENIAL OF DEFENDANT'S MOTION TO DISMISS (#142) PLAINTIFF'S MOTION FOR CLARIFICATION (#141)
The marriage of the parties was dissolved by the court, Alvord, J., in a written memorandum of decision dated October 25, 2005. The court's decision states that the parties "agree to split equally the Defendant's New Britain General Hospital Pension Plan and Annuity 403(b) plans, both accrued over the course of the marriage." After that portion the memorandum of decision which states that "the court makes the following orders," however, there is no reference to division of the pension or 403(b) plan. The plaintiff's motion for clarification "requests the Court to reconfirm its previous order requiring the Defendant equally split his New Britain . . ." The defendant has now moved to dismiss that motion on the grounds that the court lacks subject matter and statutory jurisdiction to act in the manner requested by the plaintiff's motion. The substance of the defendant's argument is that the motion for clarification seeks an improper postjudgment modification of a property order. The matter was assigned to this judge, who issued a handwritten order denying the motion to dismiss on March 26, 2009, on the second page of that motion but also stated "Written decision shall be issued subsequently." This memorandum sets forth the court's reasoning.
Judgments in civil matters are final and may not be modified except under limited circumstances: if a motion to open or modify is filed within four months, pursuant to General Statutes § 52-212a and Practice Book § 17-4; if the judgment was procured by fraud, fraud, mistake, duress; or if "otherwise provided by law . . ." Kim v. Magnotta, 249 Conn. 94, 733 A.2d 809 (1999) (holding that the four-month limitation on opening civil judgments does not restrict the court's subject matter or personal jurisdiction, but its statutory authority to act). Since challenges to subject matter jurisdiction may not be waived and yet waiver of the four-month rule is permitted under § 52-212a, any modification of a postjudgment property division in a family proceeding does not implicate subject matter jurisdiction, but the court's statutory authority to act, which, under certain circumstances, may be waived. See, e.g., Capozzi v. Liberty Mutual Fire Ins. Co., 32 Conn.App. 250, 256, 629 A.2d 424 (1993), aff'd, 229 Conn. 448, 642 A.2d 1 (1994) (holding that the 30-day time limit set forth in General Statutes § 52-416(a) for issuance of an arbitrator's decision does not implicate subject matter jurisdiction and may be waived).
General Statutes Section 52-212a, captioned "CIVIL JUDGMENT OR DECREE OPENED OR SET ASIDE WITHIN FOUR MONTHS ONLY," provides in relevant part as follows: "Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, 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 . . . The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court . . ."
Practice Book Section 17-4, captioned "SETTING ASIDE OR OPENING JUDGMENTS," provides, in relevant part, as follows: "(a) Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any 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 succeeding the date on which notice was sent. The parties may waive the provisions of this subsection or otherwise submit to the jurisdiction of the court."
General Statutes § 52-416, captioned "TIME WITHIN WHICH AWARD SHALL BE RENDERED. NOTICE," provides in relevant part as follows: "(a) If the time within which an award is rendered has not been fixed in the arbitration agreement, the arbitrator or arbitrators or umpire shall render the award within thirty days from the date the hearing or hearings are completed, or, if the parties are to submit additional material after the hearing or hearings, thirty days from the date fixed by the arbitrator or arbitrators or umpire for the receipt of the material. An award made after that time shall have no legal effect unless the parties expressly extend the time in which the award may be made by an extension or ratification in writing."
In Simms v. Simms, 89 Conn.App. 158, 163-64, 872 A.2d 920 (2005), the court held that a motion to dismiss challenging the legal sufficiency of a postjudgment motion for modification was improper because it did not raise one of the four reasons permitted for use of motion to dismiss in family matters:
As in civil matters, the scope of the motion to dismiss in family matters is carefully circumscribed. It may be used to assert only "(1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process and (5) insufficiency of service of process." Practice Book § 25-13. The defendant's motion to dismiss alleged none of those defects. Rather, it challenged the legal sufficiency of the plaintiff's motion. The motion to dismiss, therefore, was defective and should not have been granted.
Practice Book Section 25-13, captioned "GROUNDS ON MOTION TO DISMISS: provides in relevant part as follows: "(a) The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process and (5) insufficiency of service of process."
The motion there was effectively a motion to strike, which the court held in Zirinsky v. Zirinsky, 87 Conn.App. 257, 268, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005) to be an improper method to challenge the legal sufficiency of a postjudgment motion. The clear import of these two cases is that the provisions in the practice book regarding motions in family cases must be closely followed.
Although a motion to dismiss ordinarily challenges personal or subject matter jurisdiction, our courts have endorsed such motions for raising issues that are not strictly questions of jurisdiction, such as prior pending action and forum non conveniens. See, e.g., Halpern v. Board of Education, 196 Conn. 647, 652, 495 A.2d 264 (1985), noting that "when two separate lawsuits are virtually alike the second action is amenable to dismissal by the court . . . as a rule of justice and equity" though not "truly [implicating] the subject matter jurisdiction of the court" (citations omitted), and Durkin v. Intevac, Inc., 258 Conn. 454, 782 A.2d 103 (2001), holding that motion to dismiss based on forum non conveniens does not contest the court's jurisdiction but nonetheless properly asks court to defer to another forum because "a court may resist imposition upon its jurisdiction even when jurisdiction is authorized." Yet in those proceedings the motion was challenging the jurisdiction or authority of the court to maintain the underlying action. None of those cases involved challenges to pendente lite or postjudgment motions.
A motion for clarification may be properly raised at any time. Zadravecz v. Zadravecz, 39 Conn.App. 28, 865 A.2d 488 (1995). A court lacks statutory authority to modify a property distribution more than four months after judgment, however, unless there has been waiver, fraud, mutual mistake, duress, or as "otherwise provided by law." Whether in this case the present motion seeks a clarification or a change in the orders, and if a change whether there has been waiver, mutual mistake, or other reason allowing a postjudgment modification is more properly presented to trial judge when she hears the motion for clarification.
The motion to dismiss is thus denied, as it relies on none of bases provided in Practice Book § 24-13 for such motions.