McLoughlin v. McLoughlin ( 2015 )

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JAMES MCLOUGHLIN v. LORI MCLOUGHLIN
(AC 36086)
Sheldon, Prescott and West, Js.
Argued February 5—officially released June 2, 2015
(Appeal from Superior Court, judicial district of
Hartford, Olear, J. [dissolution judgment]; Ficeto, J.
[motion for order])
Patrick Tomasiewicz, for the appellant (plaintiff).
Emily J. Moskowitz, for the appellee (defendant).
Opinion
PRESCOTT, J. In this marital dissolution action, the
plaintiff, James McLoughlin, appeals from the trial
court’s postdissolution orders (1) denying his motion
seeking to resolve the parties’ dispute regarding distri-
bution of certain items of personal property and (2)
awarding the defendant, Lori McLoughlin, all of the
funds in a property tax escrow account, which were
refunded following the postdissolution sale of the par-
ties’ marital home. The plaintiff claims on appeal that
the court improperly denied his motion for order regard-
ing personal property because, in so doing, it effectively
distributed the disputed personal property to the defen-
dant, which it lacked the authority to do postjudgment,
and because its decision was based in part on an errone-
ous determination that the parties had failed to timely
retain the services of a mediator to resolve their dispute
as required by the dissolution judgment. The plaintiff
also claims that the court improperly awarded all of
the property tax escrow funds to the defendant despite
the fact that the parties’ separation agreement was
silent as to how those funds should be divided following
the sale of the marital home. We affirm the judgment
of the court.
The record reveals the following facts and procedural
history. The parties were divorced on April 12, 2012.
The dissolution judgment incorporated by reference a
separation agreement executed by the parties. In addi-
tion to provisions addressing child support and alimony,
the dissolution judgment contained several provisions
regarding the distribution of marital assets.
With respect to the marital home, the dissolution
judgment provided that the parties would list the home
for sale with a specified realtor within two days. The
net proceeds from that sale were to be divided equally
between the parties. The term ‘‘net proceeds’’ was
defined in the judgment as ‘‘gross [proceeds] minus real
estate commission, conveyance taxes, mortgage, [home
equity line of credit] and routine costs of sale and agreed
upon repairs . . . .’’ The plaintiff was obligated to
make a good faith effort to vacate the home by May 7,
2012, upon which the defendant was required to ensure
that all utilities were billed solely to her. In addition,
beginning with the April, 2012 payment, the defendant
was obligated ‘‘to pay the mortgage . . . upkeep and
taxes for the marital residence until the sale and indem-
nify and hold the [plaintiff] harmless thereon.’’ The judg-
ment expressly provided that the court would retain
jurisdiction to settle any future disputes that might arise
relative to the sale of the home.
With respect to personal property, the dissolution
judgment provided, in its entirety, as follows: ‘‘The par-
ties shall divide all items of personal property to their
mutual satisfaction. Any items they cannot agree on
shall be the subject of binding mediation with Attorney
Leo Diana (or other agreeable mediator) within 30 days.
They shall split the cost of mediation 50/50.’’ The court
did not retain authority in the dissolution judgment with
respect to adjudicating any unresolved issues regarding
the distribution of personal property.
Approximately three months later, on July 18, 2012,
the plaintiff filed three postjudgment motions for con-
tempt raising a variety of issues, including that the
defendant had failed to comply with the personal prop-
erty provision of the dissolution judgment because she
allegedly had failed ‘‘to make arrangements concerning
[a] bedroom set and [a] dining room set within [thirty]
day[s] of the date of [j]udgment . . . .’’ By way of relief,
the plaintiff asked that the court award him the dining
room set and the defendant the bedroom set. He did
not ask for an order compelling the parties to participate
in mediation as referenced in the dissolution judgment.
On August 14, 2012, the court, Carbonneau, J.,
approved a stipulated agreement of the parties that
resolved some of the issues raised in the motions for
contempt, but which also provided that unresolved
issues regarding, among other things, personal property
‘‘shall be assigned for a specific hearing.’’ On September
27, 2012, the plaintiff submitted proposed orders that
included a request that ‘‘the court enforce the order for
binding mediation of personal property and require the
[d]efendant to attend within two weeks and pay any
costs associated therewith to Attorney Diana or else
forfeit the dining room set within two weeks and turn
the same over to the [p]laintiff.’’
The court, Prestley, J., held a hearing on October 9,
2012, at which the parties were to address all outstand-
ing issues raised in the motions for contempt. The
majority of the hearing, however, was taken up with
resolving problems related to the marketing of the mari-
tal home. Toward the end of the hearing, the court
attempted to help the parties resolve their ongoing per-
sonal property dispute, which remained centered on,
but was not limited to, who should get two bedroom
sets and a dining room set, including the parties’ wed-
ding china. The parties, however, were unable to reach
any agreement.1 In the end, the court instructed the
parties to continue to try to settle their dispute on their
own before their next court date, and also ordered them
to make and exchange lists of any personal property
that was important to them and that they wished to
keep.
On May 3, 2013, the plaintiff filed a motion titled
‘‘motion for order re: personal property, postjudgment.’’
In that motion, the plaintiff recounted that the parties
had appeared before the court on October 9, 2012,
‘‘seeking an order relative to the distribution of personal
property,’’ that the court had ordered the parties to
make and exchange lists of items that they wished to
keep, but that no such exchange had ever occurred. By
way of relief, the plaintiff asked the court to issue ‘‘a
final determination as to the distribution of personal
property.’’ (Emphasis added.) The plaintiff’s motion did
not contain a request for an order requiring the parties
to attend binding mediation or to participate in any
other form of alternative dispute resolution. Although
the motion was vague regarding the precise relief
sought, we construe it as a request by the plaintiff for
an order distributing certain remaining items of person-
alty to him.
Later in May, 2013, the marital home was sold, and
the proceeds from that sale were divided in accordance
with the dissolution judgment. At the closing, the mort-
gage company refunded the balance of a property tax
escrow account to the closing attorney. The defendant
claimed that she was entitled to all of the refund
because that refund originated solely from the monthly
mortgage payments, including real estate taxes, which
she alone had been paying since April, 2012. The plain-
tiff, however, disagreed, and he refused to authorize the
closing attorney to release the funds to the defendant.
On August 8, 2013, the court, Ficeto, J., heard argu-
ment on the plaintiff’s motion for order regarding per-
sonal property as well as other outstanding motions.
With respect to the motion for order, the court indicated
to the parties that it believed it lacked jurisdiction to
issue any postdissolution order directing the distribu-
tion of personal property to one party over the other,
especially in light of the ‘‘very specific delineation in
the [dissolution judgment] that says what will happen
if they can’t agree, and that is that they will be subject
to binding mediation . . . .’’2 The plaintiff’s counsel
acknowledged several times on the record that he
understood and agreed that the court could not enter
any orders regarding the distribution of personal prop-
erty postjudgment, but suggested that the court might
be able to modify the thirty day time period set forth
in the dissolution judgment for entering into binding
mediation.3 The court indicated that it was unsure there
was any basis for opening the dissolution judgment at
that time, as there appeared to be no allegations of
fraud, deceit or mutual mistake.4 The plaintiff did not
ask, nor is it clear from the record that the court consid-
ered, whether, instead of opening and modifying the
dissolution judgment, the court could order the parties
to attend mediation pursuant to its continuing authority
to effectuate an existing order, namely, the parties’
agreement to attend binding mediation to resolve any
personal property disputes, which agreement was
incorporated into the dissolution judgment. See Brody
v. Brody, 153 Conn. App. 625, 635–36, 103 A.3d 981(2014) (motion to open unnecessary for court to exer-
cise continuing jurisdiction to effectuate and vindicate
outstanding orders).
During the hearing, the plaintiff’s counsel indicated
that the parties had not taken advantage of the binding
mediation provision within the thirty day time period
because the defendant had indicated to the plaintiff
that she could not afford to pay for mediation, but
that ‘‘some sort of relief should be given.’’ The court
responded that the proper procedure to obtain relief
would have been to ‘‘come back to court within the
thirty day period,’’ not ‘‘just to take her word that, you
know, ‘I can’t afford it,’ and walk away.’’ Counsel coun-
tered that he had filed a motion for contempt on July
18, 2012, but the court responded that that motion, filed
more than three months after the dissolution judgment
was rendered, was also outside the ‘‘time frame set
within the [dissolution judgment].’’ The court never
made any express finding establishing on what date the
parties’ dispute over personal property actually arose,
or whether the thirty days as stated in the separation
agreement began to run from the date the judgment was
rendered or from the date the parties’ dispute began.
Ultimately, the court made no rulings regarding the
disposition of the disputed personal property, and
denied the plaintiff’s motion on the ground that it lacked
the authority to distribute personal property postdisso-
lution.5
At the August 8, 2013 hearing, the defendant also
raised the issue of the disputed tax escrow refund.
Although the defendant acknowledged that that issue
was not the subject of any motion then pending before
the court, the plaintiff raised no objection to having
argument on the issue. The plaintiff contended that the
judgment provided that the net proceeds of the sale
were to be split equally and, thus, that equity demanded
that the escrow refund also be equally divided between
the parties. The defendant argued that she was entitled
to all of the funds. According to her, the term ‘‘net
proceeds’’ was defined clearly in the agreement and
that definition did not include money refunded from
escrowed property taxes. She further asserted that after
the marriage was dissolved, she was responsible for
paying the mortgage and all of the property taxes on
the marital home and, thus, all of the money that was
refunded from the tax escrow account had been paid by
her. The court agreed with the defendant’s arguments,
stating on the record at one point, ‘‘I see no reason why
[the defendant] should not be entitled to that money
in escrow,’’ and later stating: ‘‘I don’t see why the funds
should not be released. [The dissolution judgment],
page 8, clearly delineates who gets what and the respon-
sibilities.’’ The court stopped short of entering an
express order awarding the funds to the defendant or
directing the plaintiff to allow the funds to be released.
The plaintiff’s counsel stated that he would check with
his client about whether to release the funds, and the
defendant’s counsel stated that she would file a motion
for contempt if the defendant did not receive the money.
On August 20, 2013, the plaintiff filed two motions
for reconsideration, one asking the court to reconsider
its August 8, 2013 decision ‘‘awarding the tax escrow
money to the defendant,’’ and the other seeking recon-
sideration of the court’s August 8, 2013 ruling, which
he characterized as ‘‘awarding items of personal prop-
erty to the defendant including the dining room set with
contents, and bedroom set . . . .’’ On August 27, 2013,
the court denied both motions for reconsideration with-
out comment. This appeal followed.6
I
The plaintiff first claims that the court improperly
denied his motion for order regarding personal prop-
erty, in which he asked for a final resolution of the
parties’ personal property dispute. According to the
plaintiff, by denying his motion, the court effectively
awarded the disputed personal property to the defen-
dant, which the plaintiff acknowledges the court lacked
authority to do postjudgment. The plaintiff further
argues that the court’s decision to deny the motion was
based, at least in part, on an erroneous determination
by the court that the parties had failed to retain the
services of a mediator to resolve their dispute within
thirty days of the dissolution judgment as provided for
in the parties’ separation agreement. We conclude that
the court properly determined that it lacked the author-
ity to grant the relief requested by the plaintiff in his
motion and, accordingly, properly denied it.
We begin with the standard of review. The plaintiff’s
claim implicates the scope of the court’s authority to
act postdissolution with respect to disputes over items
of personal property not distributed as part of the disso-
lution judgment. ‘‘Any determination regarding the
scope of a court’s . . . authority to act presents a ques-
tion of law over which our review is plenary.’’ Tarro
v. Mastriani Realty, LLC, 142 Conn. App. 419, 431, 69
A.3d 956, cert. denied, 309 Conn. 912, 69 A. 3d 309(2013).
It is well settled that ‘‘[c]ourts have no inherent power
to transfer property from one spouse to another;
instead, that power must rest upon an enabling statute.
. . . The court’s authority to transfer property [in] a
dissolution proceeding rests on [General Statutes]
§ 46b-81. That section provides in relevant part: At the
time of entering a decree . . . dissolving a marriage
. . . the Superior Court may assign to either the hus-
band or wife all or any part of the estate of the other
. . . . Accordingly, the court’s authority to divide the
personal property of the parties, pursuant to § 46b-81,
must be exercised, if at all, at the time that it renders
judgment dissolving the marriage.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Rathblott v. Rathblott, 79 Conn. App. 812, 819, 832 A.2d
90 (2003).
We have recognized that some tension exists between
§ 46b-81 and General Statutes § 52-212a, which provides
the trial court with discretionary authority to open judg-
ments. To that end, we have acknowledged that a trial
court’s authority to correct ‘‘an omission in orders trans-
ferring personal property in a manner completely con-
sistent with its earlier findings as to its disposition’’;
Rome v. Album, 73 Conn. App. 103, 113, 807 A.2d 1017(2002); would not run afoul of § 46b-81.
This court’s decision in Rathblott is instructive with
regard to our resolution of the plaintiff’s first claim. In
Rathblott, the dissolution judgment contained numer-
ous provisions distributing most of the parties’ real
and personal property. Rathblott v. Rathblott, supra, 79
Conn. App. 814. It also contained, however, a provision,
similar to the one at issue in the present case, which
provided: ‘‘The plaintiff and defendant are to attempt
to complete the division of their furniture, furnishings
and miscellaneous tangibles. If unable to do so, either
party may move the court for an articulation.’’ (Internal
quotation marks omitted.) Id. The parties made numer-
ous, unsuccessful attempts to divide the remainder of
their personal property. Id., 815. Three years after the
dissolution judgment was rendered, the defendant filed
postjudgment motions that asked the court for a hearing
regarding the division of personal property that
remained in dispute or, alternatively, to order the par-
ties ‘‘to exchange position statements by a date certain,
thereby affording the court a basis for rendering a deci-
sion regarding a division of the property.’’ Id. Because
the parties had moved the disputed property to a storage
facility after the sale of the marital home, the defendant
also moved the court for an order requiring the plaintiff
to pay one half of all moving and storage fees associated
with the disputed property. Id., 815–16. On the basis of
the defendant’s motions, the court ordered the disputed
property sold at auction, with all costs associated with
the storage and auction of the property to be divided
equally between the parties. Id., 816. The plaintiff
appealed. Id.
This court reversed the ruling of the trial court, con-
cluding that it had lacked authority to adjudicate the
defendant’s postjudgment motions regarding personal
property. Id. We reasoned: ‘‘[Section] 46b-81 authorizes
the court to issue orders respecting marital property
only at the time of dissolution; it does not authorize
postjudgment orders for the division of marital prop-
erty. Accordingly, in the present case, the court lacked
authority to issue a postjudgment order that the marital
property, which the court failed to assign to either party
at the time of dissolution, be sold at auction.’’ Id., 818.
The court went on to distinguish other cases in which
the trial court expressly had retained jurisdiction to
ensure that its personal property orders were effectu-
ated by the parties. Id., 820. It concluded: ‘‘In the present
case, the court that rendered the judgment of dissolu-
tion did not exercise its authority to divide the parties’
personal property at the time that it rendered judgment
dissolving the marriage. Instead, the court left it to the
parties to complete the division . . . . Although the
court did state that if the parties were unable to do so,
either party could move for an articulation, an articula-
tion is simply an explanation of a previous order or
ruling. . . . The court’s postjudgment order, therefore,
contemplates that a previous ruling on the distribution
had been made. There was, however, no order made
regarding the distribution of the parties’ personal prop-
erty, other than that the parties were to attempt to
divide it. An articulation, therefore, would be of no help
to the parties here, even if the parties had attempted to
follow that road map by filing a motion for articulation.’’
(Citations omitted; emphasis omitted; internal quota-
tion marks omitted.) Id., 820.
As in Rathblott, the court in the present case did not
distribute the parties’ personal property as part of the
dissolution judgment; rather, pursuant to the parties’
separation agreement, the division of the parties’ per-
sonal property was left to the parties to accomplish,
and, if they were unable to do so, they agreed to attend
binding mediation. There was no language in the disso-
lution judgment retaining the court’s authority to effec-
tuate a distribution order or to aid the parties in the
event a dispute later arose. Like the parties in Rathblott,
the parties in the present case were unable to complete
the division of their personal property, leaving the par-
ties in legal limbo. Nevertheless, the trial court was
without any statutory authority to issue an order resolv-
ing the parties’ dispute over the distribution of their
personal property, as that authority existed only at the
time the marriage was dissolved. The division of per-
sonal property was clearly contemplated by the parties
and the court at the time of dissolution, and was left to
the parties, so no oversight or omission can be claimed.
Although the plaintiff suggests on appeal that he was
not seeking an order distributing personal property, but
only an order compelling the parties to mediation, that
is not the relief that the plaintiff sought in his motion.
We reject the plaintiff’s oft-repeated notion that the
court, by denying the plaintiff’s motion, awarded items
of personal property to the defendant, which we have
determined the court lacked authority to do. The court
never assigned ownership of any items of personalty
to either party; rather, it did nothing more than leave
in place whatever status quo then existed as a result
of the parties’ failure to ‘‘divide all items of personal
property to their mutual satisfaction,’’ which they had
agreed to do in their separation agreement. The court’s
denial of the motion for order regarding personal prop-
erty in no way precludes the parties from pursuing
other remedies, legal or otherwise, that the parties wish
to pursue.7
The plaintiff also argues that, in denying his motion
for order regarding personal property, the court also
improperly determined that the parties had failed to
take advantage of procedures they had agreed to pursue
in their separation agreement, namely, to retain the
services of a mediator within thirty days if they were
unable to agree to the distribution of their personal
property. The plaintiff argues that the thirty day period
referred to in the separation agreement did not run from
the date that the dissolution judgment was rendered but
from the date a dispute arose between the parties and
that he timely raised the issue of the defendant’s alleged
refusal to participate in mediation in one of his July 18,
2012 motions for contempt, effectively tolling the time
period until the issue could be decided by the court.
Neither a construction of the relevant portion of the
dissolution judgment nor a determination of whether
the court had the authority to order the parties to attend
mediation postjudgment—whether within the thirty day
period or otherwise—was an issue that was squarely
before the court in ruling on the plaintiff’s motion for
order regarding personal property. We note that the
plaintiff himself describes his motion in his appellate
brief as a ‘‘motion for distribution of assets’’ and ‘‘the
motion for distribution.’’ Thus, the plaintiff clearly
sought to have the court distribute to one party or the
other disputed items of personal property. It was not
until after the court suggested that it lacked the author-
ity to grant the relief requested by the plaintiff in his
motion that he began to alter his arguments and raised
the possibility of the court ordering the parties to attend
mediation to resolve their dispute or of his potentially
filing a motion to modify the dissolution judgment to
extend the time for mediation.
The plaintiff states in his brief that the court ‘‘incor-
rectly concluded that the thirty day period began on
the date of the dissolution’’ and that ‘‘[t]he court also
erred in not allowing the plaintiff to present evidence
to assist the court in determining the parties’ intent
as to the meaning of the thirty day time period for
mediation.’’ Our review of the hearing transcript, how-
ever, reveals that the court never made any express
finding whether the thirty day period set forth in the
dissolution judgment was intended to run from the date
of the dissolution judgment or from the date when a
dispute over personal property arose. Further, the plain-
tiff never requested an opportunity to present evidence
on the meaning of that provision.8 Even if we were
inclined to agree with the plaintiff’s assertion that the
thirty day period did not begin to run until the parties’
dispute over the personalty commenced, the court
made no finding as to that date, nor can we determine
it from the record before us. Accordingly, the record
would be wholly inadequate for us to evaluate whether
the court correctly determined that the plaintiff’s
motion for contempt failed to raise in a timely manner
the issue of the parties’ failure to attend mediation.9
Nevertheless, because we conclude that the court
lacked authority to render any final resolution of the
parties’ personal property dispute, which was the only
relief sought in the motion for order regarding personal
property, we need not address any of the tangential
issues pertaining to the parties’ postjudgment efforts,
or lack thereof, to resolve their dispute over personal
property themselves, whether through mediation or
other means.
II
The plaintiff also claims that the court improperly
awarded to the defendant all of the property tax escrow
refund. The plaintiff argues that, despite the agreement
being silent as to how property tax escrow money was
to be divided upon the sale of the home, the court
incorrectly determined that the dissolution judgment
clearly delineated that the defendant was entitled to
the refunded money. The plaintiff also argues that the
tax escrow refund should be considered a part of the net
proceeds of the sale of the home and that the agreement
provided that the net proceeds were to be divided
equally between the parties. We are not persuaded by
either argument.
‘‘It is well established that a separation agreement
that has been incorporated into a dissolution decree
and its resulting judgment must be regarded as a con-
tract and construed in accordance with the general
principles governing contracts. . . . When construing
a contract, we seek to determine the intent of the parties
from the language used interpreted in the light of the
situation of the parties and the circumstances con-
nected with the transaction. . . . [T]he intent of the
parties is to be ascertained by a fair and reasonable
construction of the written words and . . . the lan-
guage used must be accorded its common, natural, and
ordinary meaning and usage where it can be sensibly
applied to the subject matter of the contract. . . .
When only one interpretation of a contract is possible,
the court need not look outside the four corners of
the contract. . . . When the language of a contract is
ambiguous, the determination of the parties’ intent is
a question of fact. . . . When the language is clear and
unambiguous, however, the contract must be given
effect according to its terms, and the determination of
the parties’ intent is a question of law. . . .
‘‘The threshold determination in the construction of a
separation agreement, therefore, is whether, examining
the relevant provision in light of the context of the
situation, the provision at issue is clear and unambigu-
ous, which is a question of law over which our review
is plenary. . . . Contract language is unambiguous
when it has a definite and precise meaning . . . con-
cerning which there is no reasonable basis for a differ-
ence of opinion . . . . The proper inquiry focuses on
whether the agreement on its face is reasonably suscep-
tible of more than one interpretation. . . . It must be
noted, however, that the mere fact that the parties
advance different interpretations of the language in
question does not necessitate a conclusion that the
language is ambiguous.’’ (Citations omitted; emphasis
omitted; internal quotation marks omitted.) Isham v.
Isham, 292 Conn. 170, 180–81, 972 A.2d 228 (2009).
In the present case, the dissolution judgment incorpo-
rating the separation agreement contained two provi-
sions that are relevant to our consideration of the
plaintiff’s claim. First, with respect to any proceeds
generated by the sale of the marital home, the dissolu-
tion judgment provided in relevant part: ‘‘The net pro-
ceeds (defined as gross minus real estate commission,
conveyance taxes, mortgage, [home equity line of
credit] and routine costs of sale and agreed upon
repairs) shall be divided equally (50/50) between the
parties at the time of the closing . . . .’’ Second, with
respect to payment of the mortgage and property taxes
on the marital home postdissolution, the dissolution
judgment provided in relevant part: ‘‘The [defendant]
shall be responsible to pay the mortgage (commencing
with the April 1, 2012 payment), utilities . . . upkeep
and taxes for the marital residence until the sale and
indemnify and hold the [plaintiff] harmless thereon.’’
The plaintiff does not claim, nor do we conclude on
the basis of our review, that either of these provisions
contains unclear or ambiguous language. The
agreement unequivocally states that the parties are to
share equally only in the ‘‘net proceeds’’ of the sale of
the marital home. The term ‘‘net proceeds’’ is clearly
defined in the provision, and, contrary to the bald asser-
tion made by the plaintiff on appeal, the definition does
not include any language that reasonably may be con-
strued as encompassing the escrowed real estate taxes
that were refunded at the closing of the sale.
Instead, as the court correctly determined, the sepa-
ration agreement clearly and unambiguously placed full
responsibility on the defendant to pay the mortgage
and all property taxes for the marital home beginning
in April, 2012. The plaintiff was not responsible for
making any direct contributions to the mortgage or
real estate taxes postdissolution and was to be held
harmless with respect to them. It is not disputed that
a portion of each of the monthly mortgage payments
was placed in escrow for the purposes of paying prop-
erty taxes. Thus, when the property was sold in May,
2013, more than a year after the dissolution judgment
was rendered, all of the funds in the property tax escrow
account consisted solely of monies that were paid by
the defendant postdissolution.
The plaintiff argued at the hearing before the trial
court, and repeats on appeal, that his postdissolution
payment to the defendant of alimony and child support
should be viewed as, in effect, contributing to the pay-
ment of the mortgage and taxes postjudgment. The
plaintiff provides no legal support for that proposition.
Our review of the separation agreement reveals that
the plaintiff’s support obligations were in no way con-
nected to or based upon the defendant’s current or
future mortgage obligations. For example, there was
no provision in the separation agreement providing for
an adjustment to alimony payments following the sale of
the marital home. Accordingly, we reject any suggestion
that the funds in the escrow account should be viewed
as a joint marital asset subject to equitable distribution.
Those funds consisted exclusively of the defendant’s
money. Accordingly, the court properly determined that
the entirety of any escrow refund belonged to the defen-
dant. The plaintiff’s arguments to the contrary are with-
out merit.
The judgment is affirmed.
In this opinion the other judges concurred.
1
At one point during the hearing, the court attempted to aid the parties
in resolving their dispute by simply drawing names from a cup, but that
solution, as well as several others, eventually was abandoned.
2
At one point, the court questioned whether Judge Prestley had the author-
ity to act in the manner that she did at the October 9, 2012 hearing. Because
the court’s actions at that hearing are not before us for review in this appeal,
we express no opinion regarding their propriety.
3
The plaintiff’s counsel indicated to the court at one point that he could
file a motion for modification and also seemed to suggest that the court
had the authority to render such relief sua sponte. Counsel never indicated
that he previously had requested an order requiring the parties to attend
mediation, nor are we convinced that his statements during the hearing
reasonably can be construed as an oral motion for such an order.
4
Courts in this state are statutorily barred from opening a civil judgment
or decree unless a motion to open is filed within four months of the judgment,
‘‘unless otherwise provided by law and except in such cases in which the
court has continuing jurisdiction . . . .’’ General Statutes § 52-212a. Never-
theless, ‘‘[i]t is a well-established general rule that even a judgment rendered
by the court upon the consent of the parties, which is in the nature of a
contract to which the court has given its approval, can subsequently be
opened [after the four month limitation] . . . if it is shown that the stipula-
tion, and hence the judgment, was obtained by fraud, in the actual absence
of consent, or because of mutual mistake.’’ (Emphasis omitted.) Kim v.
Magnotta, 249 Conn. 94, 106, 733 A.2d 809 (1999).
5
Although the court and the parties repeatedly used the term ‘‘jurisdiction’’
during the proceedings, we note that the distribution of personal property
postdissolution does not implicate the court’s subject matter jurisdiction
but, rather, its statutory authority. See Rathblott v. Rathblott, 79 Conn. App.
812, 818–19, 832 A.2d 90 (2003). If the court truly lacked subject matter
jurisdiction, it would have been required to dismiss, rather than deny, the
plaintiff’s motion. See State v. Tabone, 301 Conn. 708, 715, 23 A.3d 689 (2011).
6
On August 20, 2013, the defendant also filed a motion for contempt
claiming that the plaintiff’s refusal to allow the closing attorney to release
the escrow tax refund to the defendant was in violation of the parties’
separation agreement. That motion made no mention of an August 8, 2013
ruling entitling the defendant to all of the escrow funds. Later, prior to the
start of a November 18, 2013 hearing, the defendant filed a motion asking
the court for an order directing the closing attorney to release the escrow
funds to her. According to the defendant, the closing attorney refused to
release the funds to the defendant without any specific order from the court.
The court signed the order as presented to it on November 18, 2013, directing
the closing attorney to release the funds to the defendant. The court indicated
on the record that it believed the November 18, 2013 order was an order
effectuating its August 8, 2013 decision.
In his appellate brief, the plaintiff asserts that both parties mistakenly
had believed that the court issued an order on August 8, 2013, awarding
the escrow funds to the defendant, but that no order actually issued until
the November 18, 2013 hearing. If the plaintiff were correct, that assertion
would be fatal to his claim on appeal regarding the escrow funds because
his appeal was taken from the court’s August 8, 2013 rulings and was filed
on September 20, 2013, before the November 18, 2013 order was issued.
The plaintiff did not file an amended appeal in accordance with Practice
Book § 61-9 from the November 18, 2013 order, and, therefore, if correct,
there would have been no appealable final judgment with respect to the
escrow fund at the time the plaintiff filed this appeal. Nevertheless, we
conclude on the basis of our review of the August 8, 2013 hearing that the
court rendered an appealable judgment at that time when it concluded that
the defendant was entitled to all of the tax escrow funds. Although, as
previously indicated, the court issued no express order with respect to the
disputed funds at the August 8, 2013 hearing, we believe that the issue was
properly before the court and that the statements made by the court on the
record during the hearing amounted to a ruling on the escrow issue, and the
November 18, 2013 decision was merely an effectuation of that earlier order.
7
In Rathblott, this court noted that its holding reversing the trial court’s
ruling in that case ‘‘should not be construed as one that forecloses the
parties from initiating an independent proceeding seeking a determination
regarding their undivided personal property, and the costs associated with
moving and storing that property. See, e.g., Richards v. Richards, [67 Conn.
App. 381, 786 A.2d 1247 (2001)].’’ Rathblott v. Rathblott, supra, 79 Conn.
App. 822 n.5.
8
If a separation agreement contains definitive language, a court ordinarily
will not look beyond the four corners of the agreement and will determine
the intent of the parties by affording the language used its common, natural,
and ordinary meaning. See Doyle v. Doyle, 150 Conn. App. 312, 321–22, 90
A.3d 1024 (2014). Only if the language is ambiguous and susceptible to more
than one meaning will a court allow extrinsic evidence of the parties’ intent.
Id., 322.
9
Interestingly, the plaintiff recites in his July 18, 2012 motion for contempt
the obligation to mediate within thirty days regarding any ongoing dispute
regarding the distribution of personal items and complained that arrange-
ments had not been made concerning the bedroom and dining room sets
within thirty days of the judgment. That suggests that he construed the
thirty day period for attending mediation as having commenced when the
dissolution judgment was rendered, in direct contradiction to the position
he takes now on appeal.