Opinion
No. FA 09-4011670S
April 6, 2010
MEMORANDUM OF DECISION MOTION TO SET ASIDE AND REOPEN JUDGMENT
At issue is the defendant Michael A. Mongillo's "motion to set aside and reopen judgment" of the court, Burke, J., September 28, 2009, declaring the defendant and the plaintiff, Lucille Mongillo, to be single and unmarried. The issue that predominates the resolution of this motion is whether the dissolution agreement dated June 9, 2009 was properly incorporated into the divorce decree by the court in light of the July 9, 2009 dissolution agreement that was sought to be incorporated into the divorce decree at the divorce hearing.
I FACTS
An uncontested hearing for the divorce of the plaintiff, Lucille Mongillo, and the defendant, Michael A. Mongillo, was held by the court, Burke, J., on September 28, 2009. The defendant did not appear, although the defendant's son, Michael K. Mongillo, attempted to appear on behalf of the defendant under a power of attorney. Michael K. Mongillo was not in fact an attorney, however, and was not allowed to represent the defendant as such at the hearing. The plaintiff presented a "printed form" dissolution agreement signed by the plaintiff and defendant, dated June 9, 2009, as well as an "addendum" to that dissolution agreement which was signed by the plaintiff and the defendant's son under power of attorney, dated July 9, 2009. The plaintiff stated at the hearing that the defendant had left the state but that "my son prior to that was given full Power of Attorney to sign any documents on his behalf. That's why he signed that one. It was just a continuance of the previous." (Hearing Transcript of September 28, 2009, page 4.) As the defendant was not present at the hearing and had not personally signed the July 9, 2009 dissolution agreement, the court ordered the marriage dissolved, putting into the record only the June 9, 2009 dissolution agreement signed by both parties.
The defendant subsequently filed a motion to set aside and reopen judgment, claiming that the defendant did not appear and the June 9, 2009 agreement put on the record was not the agreement of the parties, which the defendant argues was embodied in the July 9, 2009 dissolution agreement. The matter was heard at a hearing on March 8, 2010. At that hearing, the defendant testified that in 2009, prior to the divorce, he was involved in a motor vehicle accident which resulted in personal injuries, including a head injury that causes memory loss, among other things. The defendant stated that he did not recall being notified of the divorce trial date, he did not have an opportunity to review the plaintiff's financial affidavit prior to the divorce and that he believes there are assets not appearing on the financial affidavit she did submit. The defendant's son testified that he prepared the July 9, 2009 dissolution agreement and an attorney later reviewed it to ensure its fairness. The defendant's son also testified that he reviewed some of the plaintiff's financial documents for his father, the defendant, but that he does not generally remember which ones now, as he was trying to facilitate an amicable divorce and wanted to cooperate. The plaintiff testified that the agreement put into the record at the September 28, 2009 divorce hearing was the June 9, 2009 agreement, which was not the agreement she negotiated with the defendant. The defendant therefore seeks to reopen judgment to conduct discovery and determine whether assets were properly disclosed and whether the division was equitable.
II LAW
General Statutes § 52-212 provides in relevant part: "(a) Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket . . . upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause . . . and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense."
"It is well settled that a civil judgment of the Superior Court may be opened if a motion to open or set aside is filed within four months of the issuance of a judgment . . . A motion to open a judgment is governed by General Statutes § 52-212a and Practice Book § 17-4. Section 52-212a provides in relevant part: 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 . . . Practice Book § 17-4 states essentially the same rule . . . The exercise of equitable authority is vested in the discretion of the trial court and subject only to limited review on appeal . . . The only issue on appeal is whether the trial court has acted unreasonably and in clear abuse of its discretion." (Citations omitted; internal quotation marks omitted.) Fitzsimmons v. Fitzsimmons, 116 Conn.App. 449, 454-55, 975 A.2d 729 (2009).
"Courts have an inherent power to open, correct and modify judgments . . . A civil judgment of the Superior Court may be opened if a motion to open or set aside is filed within four months of the issuance of judgment." Martin v. Martin, 99 Conn.App. 145, 155-56, 913 A.2d 451 (2007). Neither Practice Book § 17-4 nor § 52-212a specify the grounds for opening a judgment. "Because of the important considerations for finality of judgments, however, a judgment should not be opened without a strong and compelling reason . . . The motion should be granted only when there appears cause for which the court acting reasonably would feel bound in duty to do so." (Citation omitted; internal quotation marks omitted.) Id., 156. "It is well recognized that [t]he opening . . . of a judgment . . . is at the legal discretion of the court . . . [I]t is not to be granted readily, nor without strong reasons . . . The motion should indicate that the moving party is prepared to introduce some new matter not before the court at the time of its original decision." Breen v. Breen, 18 Conn.App. 166, 172, 557 A.2d 140, cert. denied, 212 Conn. 801, 560 A.2d 984 (1989).
"It is axiomatic that there must be a meeting of the minds of the parties to a contract. It has long been the practice in Connecticut to approve judgments of dissolution in an uncontested proceedings based on an agreement of the parties. With . . . judicial supervision, private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine." Witcraft v. Witcraft, Superior Court, judicial district of New London, Docket No. 518209 (October 14, 1993, Teller, J.) [ 10 Conn. L. Rptr. 201]; see also Baker v. Baker, 187 Conn. 315, 322, 445 A.2d 912 (1982).
In the present case, the defendant filed a timely motion to set aside and reopen the judgment within four months from the judgment pursuant to § 52-212. The court finds that the defendant has shown cause for the court to open the judgment of divorce granted on September 28, 2009, where the defendant has demonstrated a question as to whether the agreement entered into the record at the divorce hearing was the final agreement of the parties. Although the plaintiff argues that the defendant generally knew what was occurring during the divorce process because his son provided him information, the plaintiff herself testified that the parties' actions prior to the divorce hearing contemplated the July 9, 2009 dissolution agreement being enforceable, although it was the June 9, 2009 agreement that was in fact submitted into the record. The defendant has shown that there is a compelling reason to open the judgment in light of the July 9, 2009 dissolution agreement between the parties, where that agreement was unable to be entered into the record on September 28, 2009, because the defendant was not present and the agreement was only signed by his son acting under his general durable power of attorney for the defendant.
III ORDER
For the foregoing reasons, the defendant's motion to set aside and reopen the judgment of divorce is granted.