Doran v. Doran , 3 Conn. App. 277 ( 1985 )

Hull, J.

This appeal¹ raises the issue of whether the trial court’s refusal to decide a question of claimed support arrearages by the defendant constitutes a bar, under the doctrine of res judicata, to a later consideration of the matter. We conclude that it does not.

On March 24,1972, the trial court dissolved the marriage of the parties and the defendant was ordered to pay alimony and child support to the plaintiff. On August 19,1980, the plaintiff moved the court to find the defendant in contempt due to his failure to pay $20,986.63 in child support and $3026.67 in alimony. That motion was heard on May 5,1981, and on May 12, 1981, the court filed a memorandum of decision which stated in part: “On May 11, 1981 the defendant filed an affidavit indicating that the sum of $3,390.00 claimed by the plaintiff as the alimony arrearage had been paid on that date to the plaintiffs attorney. In addition, the defendant filed affidavits presenting evidence and claims not adduced at the original hearing. Because the defendant has made an effort to purge himself of contempt, no coercive punishment will be ordered in this proceeding. In view of the fact that the affidavits contain new evidence, no finding of support arrearage is made at this time. ” (Emphasis added.)

The plaintiff moved for clarification of this memorandum of decision asserting in part: “It is not clear from the Memorandum of Decision whether the Court is denying the arrearage or stating that the Plaintiff can have the issue of a support arrearage heard upon a reclaim.” That motion was denied without explanation on August 6, 1981.

On March 3,1982, the plaintiff again moved that the court find the defendant to be in contempt as to his child support obligation. A hearing was held on this motion on April 12, 1982, and on that same day the parties were notified, by card, that the motion was denied. On July 26,1982, pursuant to a motion for rectification of appeal, the court filed a decision on this second motion which read in toto: “Denied because in the guise of a motion for contempt, the plaintiff sought appellate review. In matters of this kind the trial court does not and cannot exercise appellate jurisdiction.”

The plaintiff appeals from the denial of her second motion for contempt, raising two major claims of error. We find one of these issues to be dispositive and decline to discuss the other.²

Although the trial court never specifically stated that the basis for its decision was that the order as to the first motion was res judicata as to the second, neither party has raised any doubt that such was the court’s intent.

The doctrine of res judicata has been stated as follows: “A final judgment on the merits is conclusive on the parties in an action and their privies as to the cause of action involved.” (Emphasis added.) Corey v. Avco-Lyeoming Division, 163 Conn. 309, 317, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973); In re Juvenile Appeal (83-DE), 190 Conn. 310, 313-14, 460 A.2d 1277 (1983); Gagne v. Norton, 189 Conn. 29, 32, 453 A.2d 1162 (1983); Telesco v. Telesco, 187 Conn. 715, 719, 447 A.2d 752 (1982). In the present case, the judgment on the prior motion was neither final nor on the merits. “This court has developed a number of standards delineating the requirement of finality. One test is whether the order or action terminates a separate and distinct proceeding. Dewart v. Northeastern Gas Transmission Co., 139 Conn. 512, 514, 95 A.2d 381 [1953]. Another test lies in the effect of an order ‘as concluding the rights of some or all of the parties’; Banca Commercials Italiana Trust Co. v. Westchester Artistic Works, Inc., 108 Conn. 304, 307, 142 A. 838 [1928]; Gores v. Rosenthal, 148 Conn. 218, 221, 169 A.2d 639 [1961]; and finally, if the rights of the parties are concluded so that further proceedings cannot affect them, then the judgment is final. State v. Fahey, 146 Conn. 55, 57, 147 A.2d 476 [1958]; Watson v. Howard, 138 Conn. 464, 467, 86 A.2d 67 [1952]; Northeastern Gas Transmission Co. v. Brush, 138 Conn. 370, 373, 84 A.2d 681 [1951].” Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 292, 320 A.2d 797 (1973); E. J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 627, 356 A.2d 893 (1975). In determining the finality of an order, “[i]t is the effect rather than the nature of the order or judgment which is critical . . . .” Pascal v. Pascal, 2 Conn. App. 472, 476, 481 A.2d 68 (1984), citing Howarth v. Northcott, 152 Conn. 460, 462, 208 A.2d 540 (1965).

In this case, the plaintiff could not evaluate the effect of the order in question so as to plan her next step. By its failure expressly to grant or to deny the motion, the court left the plaintiff in a legal limbo. The plaintiff never received a trial court determination of the merits of her claim. Under the circumstances of this case, she is entitled, at the very least, to that much before she should be forced to appeal to this court. “It is the policy of the law to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.” Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978); see also East Haven v. Paranto, 2 Conn. App. 449, 454, 479 A.2d 1225 (1984).

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance herewith.

In this opinion Daly, J., concurred.

1 This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).

2 The plaintiff claims, first, that the court erred in failing to provide an explanation of its decision of April 12, 1982. Since the court rectified its decision on July 26,1982, that issue is moot. The second claim, which we find dispositive of this appeal in any event, is that the decision on the first motion was not res judicata as to the second. The plaintiff also claims that the court erred in denying her motion “for the reasons stated in its articulation.” This ground is duplicative of the second claim of error.