Sousa v. Sousa ( 2016 )

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SOUSA v. SOUSA—DISSENT
ESPINOSA, J., dissenting. The marriage of the plain-
tiff, Eric P. Sousa, and the defendant, Donna M. Sousa,
was dissolved in 2001. The judgment of dissolution pro-
vided that the plaintiff’s pension would be divided
equally between the plaintiff and the defendant.
Approximately six years later, in 2007, the trial court,
Resha, J., adopted as a final order of the court a stipu-
lated agreement between the parties, pursuant to which
the plaintiff would be entitled to his full pension. There-
after, the defendant filed a motion to vacate Judge
Resha’s order on the ground that General Statutes
(Supp. 2016) § 46b-86 (a)1 deprived the trial court of
subject matter jurisdiction to enter such an order. The
trial court, Hon. Lloyd Cutsumpas, judge trial referee,
denied the defendant’s motion. On appeal, the Appellate
Court held that ‘‘it is entirely obvious that § 46b-86 (a)
unequivocally deprives a court of subject matter juris-
diction to enter postdissolution orders modifying prop-
erty distribution provisions in a judgment of
dissolution.’’ Sousa v. Sousa, 157 Conn. App. 587, 600,
116 A.3d 865 (2015). Accordingly, the Appellate Court
reversed Judge Cutsumpas’ ruling and remanded the
case to the trial court with direction to grant the defen-
dant’s motion to vacate Judge Resha’s order modifying
the property distribution. Id., 601.
The majority now concludes that the trial court’s lack
of jurisdiction to modify a division of property pursuant
to General Statutes § 46b-81 (a),2 years after the judg-
ment of dissolution became final, is not ‘‘ ‘entirely obvi-
ous,’ ’’ despite the unequivocal provision of § 46b-86
(a) barring postdissolution modifications of property
distribution orders. This is because, according to the
majority, it is not entirely obvious that § 46b-86 (a)
implicates the trial court’s subject matter jurisdiction,
rather than its statutory authority. Accordingly, the
majority concludes that Judge Cutsumpas properly
denied the defendant’s motion to vacate Judge Resha’s
decision adopting the stipulated agreement between
the parties that modified the original property division
as a final order of the court. For the following reasons,
I disagree.
At the outset, it is important to note that, without
acknowledging that it is doing so, the majority has
reframed the issue that the plaintiff has raised on appeal
to this court. Specifically, the plaintiff has made no
claim that § 46b-86 merely implicates the court’s statu-
tory authority. Rather, both parties agree that ‘‘§ 46b-
86 (a) deprives the Superior Court of continuing juris-
diction over that portion of a dissolution judgment pro-
viding for the assignment of property of one party to
the other party under . . . § 46b-81.’’ (Emphasis added;
footnote omitted; internal quotation marks omitted.)
Forgione v. Forgione, 162 Conn. App. 1, 6–7, 129 A.3d
766 (2015), cert. denied, 320 Conn. 920, 132 A.3d 1094(2016); Stechel v. Foster, 125 Conn. App. 441, 446, 8
A.3d 545 (2010) (same), cert. denied, 300 Conn. 904, 12
A.3d 572 (2011); see also Bender v. Bender, 258 Conn.
733, 761–62, 785 A.2d 197 (2001) (§ 46b-86 ‘‘confers
authority on the trial courts to retain continuing juris-
diction over orders of periodic alimony, but not over
lump sum alimony or property distributions pursuant
to § 46b-81’’ [internal quotation marks omitted]). The
point of disagreement between the parties is whether
the doctrine of finality of judgments, as set forth in
Urban Redevelopment Commission v. Katsetos, 86
Conn. App. 236, 242, 860 A.2d 1233 (2004), cert. denied,
272 Conn. 919, 866 A.2d 1289 (2005), barred the defen-
dant’s collateral attack on Judge Resha’s order modi-
fying the property distribution notwithstanding the fact
that the trial court lacked subject matter jurisdiction.
See id. (when party mounts collateral attack on judg-
ment on ground that court lacked subject matter juris-
diction and lack of jurisdiction was not entirely obvious,
court reviewing judgment should consider ‘‘whether the
parties consented to the jurisdiction originally, the age
of the original judgment, whether the parties had an
opportunity originally to contest jurisdiction, the pre-
vention of a miscarriage of justice, whether the subject
matter is so far beyond the jurisdiction of the court as
to constitute an abuse of authority, and the desirability
of the finality of judgments’’ [internal quotation
marks omitted]).
As the Appellate Court has observed, ‘‘there are con-
flicting decisions of this court regarding whether the
modification of a property distribution postdissolution
implicates the court’s subject matter jurisdiction or
merely its statutory authority. Compare McLoughlin v.
McLoughlin, 157 Conn. App. 568, 575–76 n.5, 118 A.3d
64 (2015) (‘we note that the distribution of personal
property postdissolution does not implicate the court’s
subject matter jurisdiction but, rather, its statutory
authority’), and Roos v. Roos, 84 Conn. App. 415, 421–22,
853 A.2d 642 (noting that distribution of personal prop-
erty postdissolution is question of statutory authority,
not subject matter jurisdiction), cert. denied, 211 Conn.
936, 861 A.2d 510 (2004), with Forgione v. Forgione,
[supra, 162 Conn. App. 6–7] (stating that court lacked
subject matter jurisdiction to modify property distribu-
tion postdissolution), and Sousa v. Sousa, [supra, 157
Conn. App. 596] (‘by subsequently [postdissolution]
modifying the order dividing the plaintiff’s pension ben-
efits equally between the parties, the court acted out-
side of its jurisdictional authority’) . . . .’’ Lawrence
v. Cords, 165 Conn. App. 473, 483 n.8, 139 A.3d 778,
cert. denied, 322 Conn. 907, A.3d (2016). In the
present case, however, the plaintiff has not cited either
of the Appellate Court decisions holding that § 46b-86
(a) does not implicate the trial court’s subject matter
jurisdiction. Although the plaintiff does state in a con-
clusory manner that ‘‘[e]xpanding the concept of sub-
ject matter jurisdiction to include every statutory
limitation on a court’s authority to act would be to
undermine significantly the doctrine of res judicata, and
to eliminate the certainty and finality in the law and in
litigation which the doctrine is designed to protect’’;
(internal quotation marks omitted) quoting Vogel v.
Vogel, 178 Conn. 358, 363, 422 A.2d 271 (1979); it is
clear that the plaintiff’s arguments are premised on the
belief that § 46b-86 (a) deprives the court of subject
matter jurisdiction. If the plaintiff believed that § 46b-
86 (a) merely limited the trial court’s statutory author-
ity, there would have been no need for him to rely on the
Katsetos factors for determining whether a judgment is
subject to collateral attack, because, in the absence of
fraud in obtaining the judgment, a claim that the trial
court lacked jurisdiction is the minimal prerequisite for
such an attack. Indeed, the plaintiff expressly stated in
his reply brief to this court that ‘‘[t]he proper question
before the Appellate Court [and, by extension, this
court] was not whether every statutory limitation on a
court’s authority to act denies that court subject matter
jurisdiction.’’ (Emphasis added.) Accordingly, I believe
that this court should limit itself to answering the ques-
tion that the plaintiff raised instead of basing its deci-
sion on an issue that the plaintiff did not raise, namely,
whether § 46b-86 (a) limits the trial court’s subject mat-
ter jurisdiction or, instead, its statutory authority. At
the very least, the majority should have afforded the
parties an opportunity to brief that issue. Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Con-
necticut, Inc., 311 Conn. 123, 161–62, 84 A.3d 840 (2014)
(court may raise unpreserved issue sua sponte only if
‘‘the court provides an opportunity for the parties to
be heard by way of supplemental briefing’’).
Addressing the question raised by the plaintiff—
whether the doctrine of the finality of judgments barred
the defendant’s collateral attack on Judge Resha’s order
notwithstanding the fact that the court lacked subject
matter jurisdiction—I would conclude that the court’s
lack of jurisdiction to modify the original property dis-
tribution six years after the marital dissolution judg-
ment was final was entirely obvious under § 46b-86
(a), which unambiguously provides that the grant of
jurisdiction to modify a final order in a dissolution pro-
ceeding after the dissolution judgment is final ‘‘shall
not apply to assignments under section 46b-81 . . . .’’
General Statutes (Supp. 2016) § 46b-86 (a). I do not see
how the legislature could have made it any clearer that
its intent was to deprive the trial courts of jurisdiction
to modify property assignments after a judgment of
marital dissolution is final. Where the trial court’s lack
of subject matter jurisdiction is entirely obvious, the
court’s judgment is subject to collateral attack on that
ground alone, notwithstanding the doctrine disfavoring
collateral attacks on final judgments as set forth in
Katsetos. See Broaca v. Broaca, 181 Conn. 463, 468 n.4,
435 A.2d 1016 (1980) (finality doctrine ‘‘would permit
collateral attack of the judgment here because the
court’s action was plainly beyond its jurisdiction and
the subject matter jurisdiction of the court was never
litigated in the original action’’); see also In re Shamika
F., 256 Conn. 383, 408, 773 A.2d 347 (2001) (factors for
determining viability of collateral attack on judgment
on ground that trial court lacked subject matter jurisdic-
tion come into play only ‘‘where the lack of jurisdiction
is not entirely obvious’’ [internal quotation marks omit-
ted]); Vogel v. Vogel, supra, 178 Conn. 362 (same); Mor-
ris v. Irwin, 4 Conn. App. 431, 433–34, 494 A.2d 626(1985) (same). Accordingly, I would conclude that
Judge Cutsumpas improperly denied the defendant’s
motion to vacate Judge Resha’s order modifying the
original property distribution, and I would affirm the
judgment of the Appellate Court reversing the judgment
of Judge Cutsumpas and remanding the case to the trial
court with direction to grant the motion to vacate. I
therefore respectfully dissent.
1
General Statutes (Supp. 2016) § 46b-86 (a) provides in relevant part:
‘‘Unless and to the extent that the decree precludes modification, any final
order for the periodic payment of permanent alimony or support, an order
for alimony or support pendente lite or an order requiring either party to
maintain life insurance for the other party or a minor child of the parties
may, at any time thereafter, be continued, set aside, altered or modified by
the court . . . . This section shall not apply to assignments under section
46b-81 or to any assignment of the estate or a portion thereof of one party
to the other party under prior law. . . .’’
Although § 46b-86 has been amended by the legislature several times since
the events underlying the present case; see, e.g., Public Acts 2015, No. 15-
68, § 43; those amendments have no bearing on the merits of this appeal.
In the interest of simplicity, all references herein are to the 2016 supplement
of the statute.
2
General Statutes § 46b-81 (a) provides in relevant part: ‘‘At the time of
entering a decree annulling or dissolving a marriage or for legal separation
pursuant to a complaint under section 46b-45, the Superior Court may assign
to either spouse all or any part of the estate of the other spouse. . . .’’