Broaca v. Broaca , 181 Conn. 463 ( 1980 )

Arthur H. Healey, J.

This appeal arises from a divorce action in which the trial court, Higgins, J., rendered judgment dissolving the marriage of the parties and made certain orders pursuant thereto on May 3, 1979. Among those orders was one requiring the defendant to maintain certain insurance policies on his life with the two minor children of the parties irrevocably named as beneficiaries. Thereafter, the plaintiff filed a motion seeking the court to adjudge the defendant in contempt for his failure to obey the above order. On September 25, 1979, the defendant filed a “Motion to Correct” the judgment in the dissolution action so as to provide that each of the minor children would remain a beneficiary of the life insurance policies involved only until she reaches the age of majority. After a hearing was held on both of these motions, the trial court granted the defendant’s “Motion to Correct” and denied the plaintiff’s motion for contempt. From these decisions, the plaintiff has appealed.

This appeal presents two questions: (1) whether the trial court was without subject matter jurisdiction to render that portion of the original judgment that required the defendant to name irrevocably the minor children as beneficiaries of the life insurance policies without regard to the children’s ages; and (2) whether the trial court had the power to modify the original judgment as it did.

At the outset of our consideration of the first question we point out that a court order requiring a parent with the duty of child support to name his child as beneficiary of an insurance policy on his life is an appropriate order for the maintenance of that child under General Statutes § 46b-84. Where the order does not extend beyond the child’s age of majority, it is a proper method of securing the continued support of the child in the event that the parent dies prior to the child’s age of majority. See Clark, Domestic Relations § 15.1 (1968); 2 Nelson, Divorce and Annulment (2d Ed.) § 14.94 (1968 Sup.). The jurisdiction of the Superior Court to make orders of child support that extend beyond the child’s age of majority was considered in Kennedy v. Kennedy, 177 Conn. 47, 411 A.2d 25 (1979). In Kennedy, we observed that the jurisdiction of the Superior Court to dissolve marriages and to make and enforce support orders as incidental to divorce decrees, derives from statutory authority. Id., 49-50. The language of General Statutes § 46b-84 expressly provides that the parental duty of support extends only to a “minor child.” The statutory grant of jurisdiction to the Superior Court in matters relating to child support incident to the dissolution of a marriage likewise expressly circumscribes the court’s jurisdiction to orders involving only “minor children.” Because the age of majority in this state is now eighteen; General Statutes §l-ld; we concluded in Kennedy that any order of child support purporting to extend beyond a child’s eighteenth birthday is outside the jurisdiction of the court and of “no force and effect.” Kennedy v. Kennedy, supra, 52-53. It is clear from the statutes involved and from our decision in Kennedy that the trial court exceeded its subject matter jurisdiction when it made the original order of support that required the defendant to name irrevocably the parties’ children as beneficiaries of the insurance policies insuring his life.

The second question goes to the court’s authority to modify its judgment under the facts of this case. The plaintiff claims that because the defendant’s “Motion to Correct”¹ the judgment was not filed within four months from the date on which judgment was rendered and because the parties did not submit to the jurisdiction of the court, the court was without authority to open and modify the judgment under General Statutes § 52-212a or Practice Book, 1978, § 326.² We agree with the plaintiff that the court’s authority to open and modify the judgment did not derive from General Statutes § 52-212a or Practice Book, 1978, § 326,³ but conclude that, under the circumstances of this case, the court had inherent authority to act as it did. 1 Freeman, Judgments § 226.

In Bunche v. Bunche, 180 Conn. 285, 287-88, 429 A.2d 874 (1980), we said: “The court’s judgment in an action for dissolution of a marriage is final and binding upon the parties, where no appeal is taken therefrom, unless and to the extent that statutes, the common law or rules of court permit the setting aside or modification of that judgment.” While it is true that, by their terms, neither General Statutes § 52-212a nor Practice Book, 1978, § 326 authorized the trial court to open and modify its judgment, it is clear that, under the common law, a trial court has inherent authority to open and modify a judgment it rendered without jurisdiction. Such a judgment is void ab initio and is subject to both direct and collateral attack. See Jensen v. Nationwide Mutual Ins. Co., 158 Conn. 251, 260, 259 A.2d 598 (1969); Samson v. Bergin, 138 Conn. 306, 312, 84 A.2d 273 (1951); Restatement, Judgments §§ 7, 11, 117; Restatement (Second), Judgments §15 and Introductory-note to Chapter 5, p. 8 (Tent. Draft No. 6, 1979) ⁴ 3 Freeman, Judgments (5th Ed.) § 1227; 47 Am. Jur. 2d, Judgments §§ 752, 753. “It is an acknowledged principle of . . . every court in the world, that not only the decisions, but every thing done under the judicial process of courts, not having jurisdiction, are, ipso facto, void.” Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat) 304, 364 (1816) ; Chrysler Credit Corporation v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 229, 429 A.2d 478 (1980) (Loiselle, J., concurring); Marshall v. Clark, 170 Conn. 199, 205, 365 A.2d 1202 (1976). “If a court has never acquired jurisdiction over a defendant or the subject matter, . . . any judgment ultimately entered is void and subject to vacation or collateral attack.” Bartels v. International Commodities Corporation, 435 F. Sup. 865, 867 (D. Conn. 1977).

In Robertson v. Robertson, 164 Conn. 140, 318 A.2d 106 (1972), we affirmed the trial court’s action to open and modify a judgment rendered without jurisdiction even though the collateral attack on the judgment occurred after more than four years from the rendition of the original judgment. Id., 141, 144-45. In so doing, we did not refer to any statutory or Practice Book authority for the trial court’s action as there was none at the time.⁵ We concluded only that a portion of the original decree was rendered without jurisdiction and that, therefore, the trial court’s action in vacating that portion of the decree was proper. Ibid. Similarly, in Kenworthy v. Kenworthy, 180 Conn. 129, 429 A.2d 837 (1980), which was decided after the effective date of Practice Book, 1978, § 326 and General Statutes § 52-212a, we stated (p. 18): “The power of the court to vacate a judgment for fraud is regarded as inherent and independent of statutory provisions authorizing the opening of judgments ; hence judgments obtained by fraud may be attacked at any time.”

We conclude that the court’s power to open and modify a portion of a judgment that it had rendered without jurisdiction is inherent and may be exercised at any time. Accordingly, the court did not err in denying the plaintiff’s motion for contempt and granting the defendant’s “Motion to Correct.”

There is no error.

In this opinion Cotter, C. J., Bogdanski and Parskey, Js., concurred.

1 Although the defendant denominated the motion he filed a “Motion to Correct,” it is more appropriate to refer to the motion as one to open and modify judgment.

2 The plaintiff argues also that the trial court could not modify the contested portion of the judgment under the grant of continuing jurisdiction over support orders in General Statutes § 46b-86 because the defendant failed to demonstrate that there was a substantial change in the circumstances of the parties not contemplated at the time the original decree was rendered. It is clear that the judgment of the court was not modified pursuant to § 46b-86 and the defendant has not argued otherwise. Our disposition of the appeal does not depend upon the grant of continuing jurisdiction contained in § 46b-86.

3 Practice Book, 1978, § 326 provides: “Unless otherwise provided by law and except in such eases in which the court has continuing jurisdiction, any 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 succeeding the date on whieh it was rendered or passed. The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court.” (Emphasis added.) General Statutes § 52-212a is identical to Practice Book, 1978, § 326.

4 The tentative draft of the Bestatement (Second), Judgments restricts somewhat the rights of parties to contest the subject matter jurisdiction of the court that rendered the judgment under attack in an attempt to accommodate the dual objectives of finality and validity of judicial action. See comments a and b to § 15 of Tentative Draft No. 6. It is clear, however, that even the rule set out in the tentative draft 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 comment e to § 15 of Tentative Draft No. 6.

5 Both Practice Book, 1978, § 326 and General Statutes § 52-212a became effective on July 1, 1978. See Practice Book, 1978, § 7; Public Acts 1977, No. 77-576, §§28, 65.