Opinion
No. FA 94-0356104S
July 6, 2007
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO DISMISS DEFENDANT'S MOTION TO MODIFY (#701)
On March 23, 2007, the defendant filed a post judgment motion for modification, which the plaintiff has now moved to dismiss on grounds that the court lacks jurisdiction to consider the plaintiff's motion. The judgment of dissolution entered on December 2, 1994, ordered the defendant to pay alimony of $250 per week "until such time as the Defendant dies, remarries, or the youngest child reaches the age of 18." The younger of the parties' two children turned 18 on April 28, 2006. Although there are serious questions about whether a court has authority to reinstate alimony after the original term of alimony has expired, any such lack, as explained below, does not deprive the court of personal or subject matter jurisdiction. For that reason, the motion to dismiss is denied.
Compare, for example, the following. In Christiano v. Christiano, 131 Conn. 589, 781, 41 A.2d 779 (1945), our Supreme Court reversed a Superior Court decision denying reinstatement of alimony because, as Chief Justice Maltbie explained, the alimony statute confers "continuing jurisdiction under which the allowance may be changed from time to time as the circumstances of the parties require. A court acts within the scope of such a continuing jurisdiction when, having altered the original decree so that the husband is freed from his obligation, it later orders the resumption of payments upon finding that circumstances have so changed that justice requires this to be done." On the other hand, in Connolly v. Connolly, 191 Conn. 468, 464 A.2d 837 (1983), after the ex-wife moved for an increase in alimony, the trial court then terminated alimony on the grounds of cohabitation. Finding that the plaintiff had "insufficient notice that the issue of alimony termination . . . was being litigated," id., 477, the court reversed the termination of alimony. In a footnote, the court noted "that once terminated, alimony cannot be restored by subsequent judicial action. Consequently, alimony termination is the deprivation of an interest protected by the principles of due process and, therefore, the issue of termination must be fully and fairly litigated." Id., 486 fn. 6.
Those are the only two Supreme Court precedents on this issue. A divided Appellate Court opinion suggests that a motion such as the plaintiffs may be considered by the trial court. In Neal v. Neal, 7 Conn.App. 624, 510 A.2d 210 (1986), the dissolution judgment provided, like the judgment in the present case, that alimony would continue until occurrence of a certain event, in that case "until such time as the plaintiff is or should be a recipient of Social Security." After the plaintiff began receiving Social Security, she moved for modification of the award to extend the period of alimony, which the Superior Court granted. The Appellate Court upheld that decision on the grounds that the "power to modify alimony orders is limited only to the extent that the decree itself precludes modification." Id., 625. Judge Bieluch dissented, citing and quoting the case of Connolly v. Connolly, for the proposition that "once terminated, alimony cannot be restored by subsequent judicial action." Id., 627 (Bieluch, J., dissenting), quoting Connolly v. Connolly, supra, 191 Conn. 468 fn. 6.
Two trial court opinions, on the other hand, quote the Connolly dictum. In Miller v. Miller, Superior Court, judicial district of Hartford, docket number FA 87-0327052S, 2000 WL 1506520, 28 Conn. L. Rptr. 187 (September 18, 2000, Gruendel, J.), the dissolution judgment also contained a provision that alimony would end upon certain occurrences, two of which were the husband either retiring or turning 60. The trial court denied a motion to dismiss because neither of those events had occurred before the ex-wife filed her motion for modification, but in dictum cited Connolly for the proposition that "if the defendant reached age sixty or retired prior to the date of the plaintiff's motion, the alimony would automatically have terminated by the terms of the judgment. The court would not thereafter have subject matter jurisdiction to modify alimony, since `. . . once terminated, alimony cannot be restored by subsequent judicial action,'" In Epstein v. Epstein, 43 Conn.Sup. 400, 656 A.2d 707 (1994), an ex-husband sought to terminate alimony because he had lost his job. Citing Connolly for the "harsh result [that] once terminated, alimony cannot be restored by subsequent judicial action," the court suspended rather than terminated alimony.
The defendant's memorandum of law in support of the motion to dismiss and the argument of his attorney at hearing on the motion make two basic claims as to why the court lacks jurisdiction to consider the plaintiff's motion. First, he argues that the "order of alimony in the subject case is not a `final order for the periodic payment of permanent alimony' as set forth in Section 46b-86(a)" of the General Statutes. (Emphasis in original motion.) Second, citing General Statutes § 46b-82, he argues that alimony orders may be entered only "at the time of entering the decree." He claims that both of these bases deprive the court of subject matter jurisdiction. Under our rules of practice, once the question of subject matter jurisdiction is raised, the court must address that issue before going on to any other matters in the case. Commissioner of Transportation v. Rocky Mountain, LLC, 277 Conn. 696, 703, 894 A.2d 259 (2006) (stating that "the question of subject matter jurisdiction is a question of law . . . and, once raised, either by a party or by the court itself, the question must be answered before the court may decide the case . . .").
Section 46b-82 of the General Statutes provides, in relevant part, that "a) At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81."
[J]urisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 17, 848 A.2d 418 (2004). As our Supreme Court explained in Kim v. Magnotta, 249 Conn. 94, 104, 733 A.2d 809 (1999), however, the question of subject matter jurisdiction is not the same as whether a court has "substantive authority to adjudicate the merits of the case before it." In Kim, the jury found that the defendant had engaged in an unfair trade practice, in part by obtaining a certain stipulated judgment; but the trial court "declined to rescind the stipulated judgment because the plaintiffs had not filed a motion to open that judgment within the four month limitation contained in [General Statutes] § 52-212a." Id., 100. The Appellate Court had affirmed, concluding that under § 52-212a the court lacked jurisdiction to open the judgment. Kim v. Magnotta, 49 Conn.App. 203, 225, 714 A.2d 38 (1998). Contrary to the argument of the defendant's counsel in the present proceeding, the Supreme Court concluded that § 52-212a is not a limitation on a court's personal jurisdiction over the parties. Kim v. Magnotta, supra, 249 Conn. 102. Nor is it a limitation on the court's subject matter jurisdiction. The power of a court to open a judgment after the four-month period set is not a jurisdictional issue, but one of the court's substantive authority.
Section 52-212a of the General Statutes provides, in relevant part, that "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."
In the same year as Kim v. Magnotta, the Supreme Court addressed the difference between subject matter jurisdiction and the court's substantive authority in Amodio v. Amodio, 247 Conn. 724, 724 A.2d 1084 (1999). In Amodio, the Appellate Court held that the trial lacked subject matter jurisdiction to modify a child support award because "the parties' dissolution decree unambiguously foreclosed modification of the support order unless the defendant earned more than $900 per week, and the defendant's financial affidavit indicated that his income had remained at that level." Id., 727. The Supreme Court reversed, holding that substantive limits on the court's authority to modify a particular order do not raise jurisdictional issues.
Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action . . .
Although related, the court's authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confiused with the way in which that power must be exercised in order to comply with the terms of the statute.
. . .
General Statutes § 46b-1(c) provides the Superior Court with plenary and general subject matter jurisdiction over legal disputes in `family relations matters,' including alimony and support. General Statutes § 46b-86(a) provides the trial court with continuing jurisdiction to modify support orders. Together, therefore, these two statutes provided the trial court with subject matter jurisdiction over the modification claim in the present case.
The reference in Amodio v. Amodio, 247 Conn. 724, 729, 724 A.2d 1084 to subsection (c) of General Statutes § 46b-1 appears to be a scrivener's error. There is no subsection (c) to that statute; nor was there at the time of that decision. The sole reference Amodio to "§ 46b-1(c)" contains a footnote stating as follows:
General Statutes § 46b-1 provides in relevant part: "Family relations matters defined. Matters within the jurisdiction of the Superior Court deemed to be family relations matters shall be matters affecting or involving: (1) Dissolution of marriage, contested and uncontested, except dissolution upon conviction of crime as provided in section 46b-47; (2) legal separation; (3) annulment of marriage; (4) alimony, support, custody and change of name incident to dissolution of marriage, legal separation and annulment; (5) actions brought under section 46b-15 . . . and (17) all such other matters within the jurisdiction of the Superior Court concerning children or family relations as may be determined by the judges of said court.
Id. That language, as the Amodio court stated, confers "plenary and general subject matter jurisdiction over legal disputes in "family relations matters," including alimony and support." Id. There have no substantive changes to the statute since the Amodio decision.
Separate and distinct from the question of whether a court has jurisdictional power to hear and determine a support matter, however, is the question of whether a trial court properly applies § 46b-86(a), that is, properly exercises its statutory authority to act.
(Citations omitted; quotations omitted.) Id., 727-30. The court thus held that
the Appellate Court confused the issues of subject matter jurisdiction and the proper exercise of the trial court's authority to act pursuant to § 46b-86(a) . . . [T]he trial court unquestionably has the power to hear and determine any modification issue. With subject matter jurisdiction established, the trial court's task is to apply the statute to the facts of a particular case; indeed, interpreting statutes and applying the law to the facts before it is the traditional province of the trial court.
Id., 731.
In O'Bryan v. O'Bryan, 67 Conn.App. 51, 787 A.2d 15, (2001), affirmed 262 Conn. 355, 813 A.2d 1001 (2003), the Appellate Court also addressed this distinction. The parties' separation agreement incorporated into the judgment of dissolution provided that the husband would pay post-majority child support, but did not contain any reference to post-majority modifications in the amount of that support. On the former wife's appeal from a modification of post-majority support, the Appellate Court citing Amodio rejected her claim that the court lacked subject matter jurisdiction. The court concluded that statutes authorizing a trial court to incorporate separation agreements providing for post-majority support into a divorce decree gave the court subject matter jurisdiction over the modification claim. Since case law provides, however, that post-majority support may only be modified if the written separation agreement had also provided for modification, the court concluded that it lacked substantive authority to modify the plaintiff's post-majority support obligation.
The present case presents the same problem. This case belongs to the class of cases involving modification of alimony awards. Section 46b-86(a) of the General Statutes provides that "any final order for the periodic payment of permanent alimony . . . may at any time thereafter be continued, set aside, altered or modified . . ." Under the statute, the court retains continuing jurisdiction, except where precluded by the decree, to modify orders concerning alimony or support.
This statutory provision suggests a legislative preference favoring the modifiability of orders for periodic alimony . . . [and requires that] the decree itself must preclude modification for this relief to be unavailable . . . If an order for periodic alimony is meant to be nonmodifiable, the decree must contain language to that effect . . . Such a preclusion of modification must be clear and unambiguous . . . If a provision purportedly precluding modification is ambiguous, the order will be held to be modifiable.
(Citations omitted; internal quotation marks omitted.) Rau v. Rau, 37 Conn.App. 209, 211-12, 655 A.2d 800 (1995). Thus, the plaintiff's argument that General Statutes § 46b-82 permits an alimony order only at the time of alimony may be true, but § 46b-86 gives the court authority to modify orders entered pursuant to § 46b-82. Even when the language of a particular decree precludes modification, the court still has jurisdiction to hear the matter in order to determine "whether the preclusive language in the decree should be enforced." Way v. Way, 60 Conn.App. 189, 194, 758 A.2d 884 (2000) (stating that "[w]hen a decree contains language precluding modification, a trial court, under its continuing jurisdiction, has the power to determine whether the preclusive language in the decree should be enforced"). Despite the statute's use of the word "permanent" alimony, § 46b-86(a) has long been used as a basis to modify time-limited alimony, such as that awarded the defendant here. See, e.g., Glinski v. Glinski, 26 Conn.App. 617, 602 A.2d 1070 (1992). "Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action . . ." Amodio v. Amodio, supra, 247 Conn. 727. However elusive the distinction may be, the issue of whether the statutory language authorizes reinstatement of expired alimony is not a jurisdictional issue, but one of the extent of the court's substantive authority.
The present case shows the wisdom of such an approach. The defendant began seeking permission to file a motion to modify and extend alimony well before the expiration of alimony. Pursuant to an order in 1998, before filing any motion she must "submit all pleadings for review" by the presiding family judge. Beginning in January 2005, more than a year before expiration of alimony, she filed numerous motions for leave to file a motion for modification of alimony and fee waiver requests. All her motions stated that they had been certified to the plaintiff (although a letter to the clerk from the plaintiff stated he had not received certain of the filings). Her motions for leave were denied on several occasions but never on the merits. Her fee waiver requests were denied because the presiding judge stated her financial affidavits were not credible until she submitted pay stubs. Whether her filing of any of those motions to leave before alimony had ceased would mean this case should be treated as an extension of alimony rather than a reinstatement, whether these various motions put plaintiff on notice that his former wife was seeking additional alimony and, if so, whether such notice would provide a basis for her request, and whether her unsuccessful efforts before expiration of alimony to seek an extension of alimony should be considered as equitably tolling any loss of her right to seek a modification are all issues that remain to be decided.
On April 12, 1998, the court, Munro, J., had ordered that the "defendant shall, through the Clerk's Office, submit all pleadings for review by the Presiding Family Judge or its designated judge in its absence. Each motion filed by the defendant shall state the allegations and legal grounds relied on in furtherance of the motion. Each motion shall be accompanied by a leave for leave to file the such motion which shall be ruled upon by the Presiding Judge, or its judge designee, summarily."
On January 19, 2005, the defendant had sought leave to file a motion to modify alimony, but the court, Munro, J., denied such leave on January 26, 2005, because the defendant did not file the motion in citation form. The defendant on February 28, 2005, then filed a subsequent motion for leave. The motion appended to that request asked for appointment of counsel, payment of counsel fees, and for modification of alimony, child support, and other financial orders. The motion requested that it "be granted without Plaintiff's presence since he does not tell the truth anyway" and stated that she (the defendant) "can be reached by telephone . . ." On March 2, 2005, the family presiding judge, Munro, J., denied that request for leave because motions for modification cannot be "taken on the papers," but the court's order also stated that "motion for counsel fees will be docketed and heard at such time as defendant, in writing, states that she will appear for a hearing on that claim as well the subsequent motion for modification for which she seeks counsel fees to pursue." The court also denied her request for appointment of counsel. Beginning in October 2006, the presiding family judge then denied a series of defendant's requests for a fee waiver. On November 11, 2005, the family presiding judge, Alvord, J., denied such a request and found her not indigent on the grounds that "financial affidavit not credible." On November 16, the court, Alvord, J., affirmed that order after hearing. On November 28, 2005, defendant again filed a motion for leave to file a fee waiver request and a motion for order. The family presiding judge, Alvord, J., denied the fee waiver request, again finding her not indigent and that her financial affidavit was not credible. On December 8, 2006, the court ordered a re-hearing on the fee waiver and scheduled the hearing before another judge on January 5, 2007. The court file does not indicate if that hearing was ever held. On February 1, 2007, the defendant filed another motion for leave seeking to file a motion for fee waiver, for appointment of an attorney, for "her monetary situation to do with case corrected," and for resumed access to her son. On February 13, 2007, the family presiding judge, Alvord, J., entered an order directing that "for clarity of pleadings, please fill in attached Motion to Modify and then submit with fee waiver request." Pursuant to that order on March 1, 2007, the defendant filed another motion for leave to the present motion for modification and a fee waiver request; the family presiding judge, Alvord, J., granted that request for leave to file the modification motion and directed that she attach pay stubs and resubmit the fee waiver request. After defendant complied with that latter request, the court on March 23, 2007, granted the fee waiver.
The motion to dismiss on jurisdictional grounds is therefore denied. The question of the court's substantive authority to grant the defendant's motion for modification is reserved for decision after hearing, as is the ultimate issue, should the court have such authority, of whether to grant the defendant's motion.