Opinion
No. KNO FA 04-0128893 S
December 7, 2007
MEMORANDUM OF DECISION ON MOTION TO REOPEN JUDGMENT (#157)
It is generally regarded as a good result when unmarried parties to a custody dispute reach an agreement upon which a final judgment can be based. In this case, however, two different agreements, reached on two different dates, have become the basis for two inconsistent "final" judgments, and that is definitely not a better result.
Defendant has moved to reopen a judgment dated November 13, 2006, which purports to be the final judgment in the case. By way of background, the court notes, the case was filed here on January 21, 2004. The case was unusually bitter, and numerous motions hearings ensued. On August 3, 2005, a temporary truce of sorts was struck in the form of a pendente lite agreement, approved by the court, awarding the parties joint legal custody of their daughter and primary residence to plaintiff, with a defined schedule of access for defendant. Subsequently, the court referred the issue of permanent custody to the Regional Family Trial Docket in Middletown for trial.
On March 27, 2006, apparently with the assistance of the mediators at Middletown, the parties came to an agreement on all matters relating to custody and access. They adopted the basic framework of their agreement of the prior August, but built in a number of new conditions which each apparently felt were important to the child's best interests. Left vague, but not unresolved, was the issue of support, an issue compounded by the fact that the parties had earlier participated in a support action in the State of New York. Their 2006 agreement contemplated that they would continue to adhere to a March 5, 2005 agreement between them which had fixed child support at $40 weekly in conformity with Connecticut's guidelines, and which the court had approved on March 21, 2005. Further, they agreed to modify the New York order and to take care of an arrearage based upon it.
On June 5, 2006, on a short calendar, their case once again came before the court (Strackbein, J.) in this judicial district. At that time, Middletown had assigned a trial date later in June and the parties were anxious to put their agreement on the record so that the trial date could be vacated. They presented their agreement to the court, which canvassed the parties and the guardian ad litem. The court accepted the March 27 document as a sufficient means of resolving the case, and the trial was cancelled.
The construction of a judgment is a question of law for the court. See 49 C.J.S., Judgments § 436; see also Grasso v. Frattolillo, 111 Conn. 209, 212, 149 A. 838 (1930); see generally Jordan, Marsh Co. v. Patterson, 67 Conn. 473, 479, 35 A. 521 (1896). As a general rule, judgments are to be construed in the same fashion as other written instruments. Scoville v. Scoville, 179 Conn. 277, 282, 426 A.2d 271 (1979) (Healey, J., dissenting); Grasso v. Frattolillo, supra, 111 Conn. at 212, 149 A. 838; 46 Am.Jur.2d, Judgments § 73; 49 C.J.S., Judgments, supra; 3 Stephenson, Conn.Civ.Proc. (Tait Adomeit 1978) § 351e. "The determinative factor is the intention of the court as gathered from all parts of the judgment." **496 Scoville v. Scoville, supra; 3 Stephenson, supra. "The interpretation of a judgment may involve the circumstances surrounding the making of the judgment. *197 Christiano v. Christiano, 131 Conn. 589, 592, 41 A.2d 779 [1945]." Garguilo v. Moore, 156 Conn. 359, 365, 242 A.2d 716 (1968); Nauss v. Pinkes, 2 Conn.App. 400, 411, 480 A.2d 568 (1984); see also Viglione v. Viglione, 171 Conn. 213, 217, 368 A.2d 202 (1976); 46 Am.Jur.2d, Judgments, supra; 49 C.J.S., Judgments, supra. "Effect must be given to that which is clearly implied as well as to that which is expressed." Cooper v. Cooper, 158 N.W.2d 712, 713 (Iowa 1968), quoting Whittier v. Whittier, 237 Iowa 655, 663, 23 N.W.2d 435 (1946). "The judgment should admit of a consistent construction as a whole." Riley v. Liquor Control Commission, 153 Conn. 242, 245, 215 A.2d 402 (1965).
Lashgari v. Lashgari, 197 Conn. 189 (1985). In the opinion of this court today, the June 5 order was intended to be a final order in this case. This is clear from the context, in that it was entered so as to avoid a looming date for a contested trial. It is clear from the canvass which the court conducted, eliciting the intention of the parties that the proceedings of that date were final as to custody, access, and prospective support issues. Significant also is that the guardian ad litem, in requesting that the court allow a later determination of her fees, indicated her desire to ". . . file a motion related to my fees if I have to, post judgment" (emphasis added), which the court assented to without hesitation.
The "New York arrearage" issue had still not been resolved, but the provision as to how that would be resolved constitutes an executory agreement between the parties not unusual in a decree of this type, and required no additional scrutiny by any Connecticut court unless and until either party should properly raise a claim of noncompliance. The reservation of jurisdiction as to the guardian ad litem's fees is a common housekeeping device utilized for dealing with a loose end of this nature; often, such details are resolved between the parties without need for further judicial attention. Their pendency does not make a final judgment less so, or cause a case with such a loose end pending to be forever after treated as an active case. Paranteau v. DeVita, 208 Conn. 515 (1988); Roos v. Roos, 84 Conn.App. 415 (2004). The court dealt with all the issues capable of resolution to that point.
Neither party filed an appeal from the June 5 judgment.
For reasons not now clear, the matter was not coded as a closed file following the hearing before Judge Strackbein. To compound the confusion, plaintiff filed a motion on July 12, 2006, asking that the court ". . . order support in accordance with the Child Support Guidelines, or, in the alternative, modify any existing child support order." The fact that this was a post-judgment motion was not noted. Defendant, who was then pro se, appeared at three short calendars to be heard on this motion. On each of these occasions plaintiff's counsel told him that the case was not proceeding on that date, but that he would be notified when he had to come to court.
Finally, and what has generated the instant motion, the case did go forward again in court, on November 13, 2006, before a different judge (Swienton, J.). Defendant testified credibly at the hearing on his motion to reopen that he was not informed of that hearing, and did not learn what had happened on that occasion until months later. Additionally, the guardian ad litem, in an affidavit admitted as Exhibit 3, averred that she also was uninformed of the November 13 proceeding. A transcript of the hearing of that occasion (Exhibit 10) reveals that only the plaintiff and her attorney were in attendance.
Plaintiff's attorney stated to the court "This is with respect to just support, Your Honor. We had gone to Middletown and resolved all the issues concerning custody and access . . . This should be over with, Your Honor . . . today, and it is going to be over with, Your Honor . . . I'm going to give you the proposed orders, the guideline worksheet, my client's financial affidavit . . ."
To this point, the court's questions and comments, omitted from the preceding quotation, are not material. However, Judge Swienton then asked: ". . . do you know when the orders were entered for the custody . . . Is . . . was this August 3rd, 2005?" Incredibly, and for no valid conceivable reason, plaintiff's attorney responded: "Yes Your Honor. It was." The court asked a moment later: "So the August 3rd 2005 stipulation was the agreement with regard to custody, where parties would share joint legal custody, primary residence with the mother?" Plaintiff's counsel: "That is correct, Your Honor."
Trusting that blatantly incorrect representation, the court proceeded to enter a "final judgment" of custody consistent with the August 2005 stipulation. In addition, upon the plaintiff's handwritten request for "proposed orders" it entered a child support award in the amount of $75 weekly, nearly double the $40 amount ordered in March of 2005 which had been made a component of the stipulation accepted by Judge Strackbein.
It is obvious to this court that Judge Swienton was unaware either of the 2006 stipulation or of the June judgment entered by Judge Strackbein. Whether plaintiff's counsel intentionally deceived her, or whether what occurred reflects "merely" unusual negligence on the part of an officer of the court, is not capable of determination at this time. However, it appears to this court that her November orders were unnecessary and a nullity.
Accordingly, the defendant's May 14, 2007 motion to reopen is granted. The November 13, 2006 judgment is vacated. It is further ordered that the judgment of June 5, 2006, is and shall be the operative final judgment in this case. Child support, by incorporation of the March 21, 2005 agreement into that judgment, is $40 weekly, effective June 5, 2006, and that figure shall be used for any future enforcement or modification proceedings. Any overpayments based upon a $75 per week order garnished from defendant's wages are to be credited towards any prior arrearages or, if their total exceeds such arrearages, to future support owed.