Summary
In Agarwal v. Agarwal, 2005 Ct.Sup. 7241 (B. Fischer, J., April 22, 2005), the court held that the participation in a prior modification conceded the validity of the judgment and estopped the party from thereafter challenging the judgment.
Summary of this case from Eubanks v. MossOpinion
No. FA 03-040 85 18 S
April 22, 2005
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO REOPEN AND VACATE JUDGMENT
Procedural History
On December 24, 2003 the plaintiff, Jitin Agarwal, filed an action to dissolve his marriage to the defendant, Garima Agarwal. The summons listed the defendant's address as being in India. Previously the plaintiff's application for an order of notice had been granted so the defendant was to be served through registered or certified mail in India. The state marshal used an international document express service and delivery of process was signed for by "Abhinav."
On July 16, 2004 the marriage was dissolved by the court, Thim, J. Custody of the parties' minor child was given to the plaintiff and an order of periodic child support was entered. No property division order was made. As the defendant was not present at the dissolution, the plaintiff introduced copies of email correspondence purportedly showing that the defendant was aware of the proceedings.
On January 11, 2005 the defendant filed a motion to open and vacate the judgment dissolving her marriage. The motion stated that the defendant did not live in India, but was only visiting there when the action was commenced. She was never served with process and had no idea that the dissolution was pending when she returned from India or that it had later been granted. In fact, the motion stated that after returning from India, she and the plaintiff moved to Wisconsin with their child and jointly purchased a home there. She stated that the plaintiff left for a few days in July, supposedly on a business trip, when he apparently finalized the dissolution. She later learned of the dissolution when the plaintiff left an envelope at her employment after a domestic incident. The defendant claims that the divorce was obtained through fraud. A hearing was scheduled for January 26, 2005 on the motions. On the day of the hearing, the defendant filed a motion for an order, postjudgment, requesting the court to establish a specific visitation schedule with her son "if the judgment is not vacated and the matter is not dismissed."
On January 11, 2005 the defendant also filed a postjudgment motion to dismiss the action based on improper service of process and lack of personal jurisdiction.
The defendant argues that the plaintiff mislead the court at the time of the dissolution about the defendant's whereabouts. A review of the July 16, 2004 transcript of the dissolution hearing, submitted by the defendant, shows that the disclosures by the plaintiff to the court agreed with the representations now made by the defendant. The plaintiff stated that at the time he started the divorce action his wife "was visiting her family in India . . . for the holiday season, through Christmas and the beginning of January. She was living in Connecticut." (July 16, 2004 Transcript of Proceedings, p. 8, ln. 1-7.) At the time of the dissolution hearing, the defendant stated that he and his wife were "at the house in Wisconsin." (July 16, 2004 Transcript of Proceedings, p. 6, ln. 8-12.)
The parties appeared before the court, on January 26, 2005 with witnesses in anticipation of proceeding on the defendant's motion to open and vacate the judgment and motion to dismiss. Instead of proceeding on the motions, the parties entered into a written agreement modifying the legal and physical custody orders concerning their child, and setting up specific visitation parameters. The agreement was approved by the court and specifically provided that " [t]he Judgment of July 16, 2004 is modified." (Emphasis added.) The agreement also provided that the parties were to submit a written property division agreement to the court by February 14, 2005 and that " this court shall retain jurisdiction over the parties and those issues." (Emphasis added.)
The parties agreed on the record that there was no child support arrearage owing from the original judgment.
The transcript of the January 26, 2005 hearing reflects extended discussions between the court and the attorneys for both parties concerning the implication of modifying the judgment of July 16, 2004, rather than vacating the judgment. The matter was passed twice for discussion. The transcript is clear that after the hearing the judgment was being modified, not vacated, and the parties were remaining divorced. Despite being warned of the implications of modifying, as opposed to vacating, the prior judgment, counsel for the defendant chose to enter the modification agreement. She did state that if a full agreement could not be reached, she would still try to vacate the prior judgment. Counsel for the plaintiff stated that he would oppose vacating a judgment which had already been modified. As a full agreement was not reached, the motion to open and vacate is before the court.
DISCUSSION
"The authority to open and vacate a judgment is within the inherent power of the trial courts . . . A motion to open and vacate should be granted when the court, acting reasonably, finds good cause to do so." (Internal quotation marks omitted.) Ragin v. Lee, 78 Conn.App. 848, 864, 829 A.2d 93 (2003). More particularly, "[t]he power of the court to vacate a judgment for fraud is regarded as inherent and independent of statutory provisions authorizing the opening of judgments; hence judgments obtained by fraud may be attacked at any time." (Internal quotation marks omitted.) Billington v. Billington, 220 Conn. 212, 218, 595 A.2d 1377 (1991).
In her motion to open and vacate the judgment of July 16, 2004, the defendant argues that the judgment was obtained by fraud because her location was different than that presented to the court by the plaintiff. The defendant could have proceeded with her motion to open and vacate the judgment on January 26, 2005. At that time, the court could have considered the merits of her motion based on the testimony of the witnesses then present and the evidence which would have been presented. The defendant, instead, chose to enter an agreement modifying the original judgment. Extensive discussions took place among counsel and the parties in an effort to modify issues in the original judgment and clarify issues not addressed in the judgment. The court was requested to, and did retain jurisdiction in an effort to effectuate a full resolution of the matter. The defendant waived her right to request that the original judgment be vacated.
"[I]n general a person who would ordinarily be entitled to apply for the vacation of a judgment may waive the right to such relief or be estopped by his conduct to ask for it." 49 C.J.S. 457, Judgments § 330 (1997). "The right to have a judgment opened on the ground of fraud may be waived by the party injured, or he may be estopped by his subsequent conduct to apply for such relief." Id. "Waiver or estoppel generally results . . . where the party against whom an interlocutory judgment is taken submits to and ratifies it by participating in the further proceedings in the action . . ." Id.
Although this action involves a final judgment, rather than an interlocutory matter, the principle is still applicable.
The defendant could not have it both ways. She could not modify a judgment, thereby indirectly assenting to its validity and then retain the right to claim its invalidity if she is not able to work out a favorable settlement. The explicit heading of her motion to establish a specific visitation schedule, which was the basis of the agreement submitted to the court, stated that it was a "motion for order — post judgment." The motion further stated that it should be acted on in the alternative, "if the judgment is not vacated and the matter is not dismissed."
The motion to open and vacate the judgment is denied.
JUDGE BRIAN T. FISCHER