Misinonile v. Misinonile

• Decision Date: 17 May 1983
• Citation: 190 Conn. 132,459 A.2d 518
• Court: Connecticut Supreme Court
• Parties: Helen F. MISINONILE v. Joseph C. MISINONILE.

Page 518

459 A.2d 518

190 Conn. 132

Helen F. MISINONILE v. Joseph C. MISINONILE.

Supreme Court of Connecticut.

Argued March 9, 1983.

Decided May 17, 1983.

Ernest C. LaFollette, Monroe, for appellant (defendant).

Abraham I. Gordon, Bridgeport, with whom, on the brief, were Richard S. Scalo and Ronald D. Japha, Bridgeport, for appellee (plaintiff).

Before SPEZIALE, C.J., and HEALEY, PARSKEY, SHEA and GRILLO, JJ.

PARSKEY, Associate Justice.

By complaint dated February 21, 1980, the plaintiff sought a dissolution of her marriage to the defendant along with alimony, custody and support. By memorandum of decision dated August 6, 1980, the court dissolved the marriage between the parties and awarded to the plaintiff custody of the minor child, alimony and support. On August 18, 1980, the court granted the defendant an additional period of sixty days in which to appeal. No appeal was filed during either the twenty day period provided by the rule; Practice Book § 3007; or within the extended appeal period.

On March 26, 1981, the defendant filed a motion to reopen and set aside the judgment of August 6, 1980, claiming that the trial court lacked jurisdiction to enter the alimony order because in reality it was an order for support for a child over the age of majority. The defendant did not claim any change of circumstances which would justify a modification of the alimony order in accordance with General Statutes § 46b-86. From the court's decision denying the motion to reopen the defendant has appealed. We find no error.

"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. Under Practice Book, 1978, § 326, a civil judgment may be opened or set aside ... where a motion seeking to do so is filed within four months from the date of its rendition. Under § 326, the parties may waive the time requirements or otherwise submit themselves to the jurisdiction of the court. Absent waiver, consent or other submission to jurisdiction, however, a court is without jurisdiction to modify or correct a judgment, in other than clerical respects, after the expiration of the [period] provided in Practice Book, 1978, § 326." Bunche v. Bunche, 180 Conn. 285, 287-88, 429 A.2d 874 (1980). After the expiration of the four month period provided by § 326 a judgment may not be vacated upon the sole ground that it is erroneous in matter of law, except by a court exercising appellate or revisory jurisdiction, unless such action is authorized by statute or unless the error is one going to the jurisdiction of the court rendering the judgment. Kalinick v. Collins Co., 116 Conn. 1, 7-8, 163 A. 460 (1932). The court does have inherent authority, however, at any time to open and modify a judgment rendered without jurisdiction. Broaca v. Broaca, 181 Conn. 463, 467, 435 A.2d 1016 (1980).

In its original judgment the court ordered alimony of $200 per week and support for the minor child of $25 per week. The defendant points to the court's memorandum of decision to support his claim that the court entered an impermissible support order in the guise of alimony. The difficulty with the defendant's position is that it seeks to use the memorandum for the purpose of contradicting the express terms of the judgment and this he cannot do. Walzer v. Walzer, 173 Conn. 62, 76, 376 A.2d 414 (1977). The defendant asserts, however, that to the extent that the judgment ordered support for the child beyond the age of eighteen it was void and that the memorandum supports this assertion. Upon examination of the memorandum of decision, ¹ which we consult for the limited purpose of ascertaining whether there is any factual basis for this claim; see Gebrian v. Bristol Redevelopment Agency, 171 Conn. 565, 573, 370 A.2d 1055 (1976); we conclude that the claim is without merit.

"The power of the court to hear and determine, which is...