Monroe v. Monroe

Citation413 A.2d 819,177 Conn. 173
CourtSupreme Court of Connecticut
Decision Date01 October 1979
PartiesNadine O. MONROE v. Floyd R. MONROE.

Nadine O. Monroe, pro se, appellant (plaintiff).

Thomas B. Wilson, Groton, for appellee (defendant).

Before COTTER, C. J., and BOGDANSKI, PETERS, PARSKEY and SPONZO, JJ.

PETERS, Associate Justice.

The plaintiff, Nadine O. Monroe, and the defendant, Floyd R. Monroe, were married in 1956 and divorced in 1973. Several years later the plaintiff initiated the present proceedings to vacate the judgment of divorce. The plaintiff filed two motions, one in January, 1978, and another in March, 1978, claiming that the state referee who entered the decree of dissolution of her marriage lacked the jurisdiction to do so. In response to each motion, the defendant countered with a motion to erase because the plaintiff's motions were not filed within the term of court in which the judgment of divorce had been rendered, and were hence untimely. The trial court denied the motions of the plaintiff and granted the motions of the defendant. The plaintiff thereupon appealed each denial to this court, and we consolidated the two appeals.

The basic facts established by the record below are as follows: The plaintiff initiated an action for separation or divorce in 1969. As amended in 1973, the complaint charged the defendant with intolerable cruelty, wilful desertion, and adultery, and sought child custody and financial relief. The defendant, after reference of the case to a state referee, consented to having the matter heard as uncontested on the plaintiff's complaint. A hearing was held by the referee on February 6, 1973, in accordance with this understanding. Both the plaintiff and the defendant were present in the courtroom; each was represented by counsel; neither was called upon to testify. Counsel for the plaintiff presented the plaintiff's amended complaint and proposed the terms of a stipulated settlement to be incorporated in the judgment file. Although the stipulation for settlement was in writing, neither the plaintiff nor the defendant had signed it. Counsel informed the court that "each aspect" of the settlement had been discussed by each counsel with each client and that each was willing to accept its terms if the court found the settlement to be fair and reasonable. The court granted the plaintiff a divorce on the ground of desertion and incorporated the stipulated settlement into its judgment decree. Neither party ever appealed from the entry of this judgment. The defendant subsequently remarried.

The plaintiff's motions to open the judgment 1 challenge the subject matter jurisdiction of the referee to render the judgment of divorce. The motion filed January 17, 1978, claims that there were jurisdictional flaws in the actual reference of her case to the referee, pursuant to General Statutes § 52-434, while the motion filed March 20, 1978, claims that the referee lacked constitutional power, despite § 52-434, to render final judgments in any case. We will consider these claims in reverse order.

As a preliminary matter, in view of the defendant's continued insistence that these claims were not properly before the trial court, and are not now properly before this court, we should clarify our own jurisdiction to hear this case. The defendant argues that the orders below are not appealable (1) because they do not constitute final judgments and (2) because they are untimely, since they were not filed within the term of the court at which the judgment of divorce was rendered. We find neither of these arguments persuasive.

This court has had numerous occasions to define finality of judgments. A recent comprehensive statement identifies a variety of criteria: "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. Another test lies in the effect of an order 'as concluding the rights of some or all of the parties'; Banca Commerciale Italiana Trust Co. v. Westchester Artistic Works, Inc., 108 Conn. 304, 307, 142 A. 838, 839; Gores v. Rosenthal, 148 Conn. 218, 221, 169 A.2d 639; 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; Watson v. Howard, 138 Conn. 464, 467, 86 A.2d 67; Northeastern Gas Transmission Co. v. Brush, 138 Conn. 370, 373, 84 A.2d 681." Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 292, 320 A.2d 797, 799-800 (1973). Whichever of these tests is employed, it is clear that the orders denying motions to open a judgment are appealable judgments. Zingus v. Redevelopment Agency, 161 Conn. 276, 281, 287 A.2d 366 (1971).

It is equally clear that these appeals are not precluded by the common law rule, recognized in Cichy v. Kostyk, 143 Conn. 688, 690, 125 A.2d 483, 484 (1956), that ordinarily limits the power of a court to open, modify, or vacate its judgments "to the term of court at which the original judgment was rendered." The Cichy rule limits the opening of judgments that are arguably improper or erroneous. Significantly, Cichy itself permitted belated exercise of jurisdiction with the consent of the parties. Cichy does not address the timeliness of attacks on judgments that are alleged to be not merely voidable but void. The plaintiff's motions challenge the power of the tribunal that adjudicated her case to hear and to determine the cause of action presented to it. Brown v. Cato, 147 Conn. 418, 422, 162 A.2d 175 (1960). A challenge to subject matter jurisdiction, an allegation that a judgment is void, "can be raised at any time . . . and the lack thereof cannot be waived." LaBow v. LaBow, 171 Conn. 433, 440, 370 A.2d 990, 994 (1976); Connecticut Steel Co. v. National Amusements, Inc., 166 Conn. 255, 263, 348 A.2d 658 (1974); Maltbie, Conn.App.Proc. § 45.

The plaintiff's appeals from the orders of the trial court are therefore both jurisdictionally appropriate and timely. This conclusion does not mean that collateral attacks on judgments are favored. On the contrary, every presumption favors the jurisdiction of a court; Six Carpenters, Inc. v. Beach Carpenters Corporation, 172 Conn. 1, 6, 372 A.2d 123 (1976); and the regularity of its processes. Jensen v. Nationwide Mutual Ins. Co., 158 Conn. 251, 260, 259 A.2d 598 (1969). The modern law of civil procedure suggests that even litigation about subject matter jurisdiction should take into account the importance of the principle of the finality of judgments, particularly when the parties have had a full opportunity originally to contest the jurisdiction of the adjudicatory tribunal. James & Hazard, Civil Procedure (2d Ed. 1977) § 13.16, esp. 695-97; Restatement (Second), Judgments § 15 (Tent. Draft # 5, 1978). We turn now to the merits of the plaintiff's allegations.

The more wide-ranging of the plaintiff's claims challenges the constitutionality of § 52-434 of the General Statutes. 2 It is argued that this section, which empowers retired judges, upon designation as state referees, to exercise the same powers as the Superior Court, violates article second; 3 article fifth, §§ 1, 2, and 6; 4 and article first, § 1, of the Connecticut constitution. 5 The plaintiff maintains that it is unconstitutional to permit judges who must retire at the age of seventy thereafter to exercise judicial power exclusively vested in constitutional courts. This argument relies on the doctrine of separation of powers recently restated in cases such as State v Clemente, 166 Conn. 501, 353 A.2d 723 (1974), and Adams v. Rubinow, 157 Conn. 150, 251 A.2d 49 (1968). These cases are, however, inapposite because they concern legislative enactments that lack specific constitutional sanction. Section 52-434 was amended, in 1967, to conform to the enabling provision of article fifth, § 6, of the 1965 Connecticut constitution, namely: "No judge or justice of the peace shall be eligible to hold his office after he shall arrive at the age of seventy years, except that a chief justice or judge of the supreme court, a judge of the superior court, or a judge of the court of common pleas, who has attained the age of seventy years and has become a state referee may exercise, as shall be prescribed by law, the powers of the superior court or court of common pleas on matters referred to him as a state referee."

This court has, on several occasions since 1965, reviewed, with approbation, the role of state referees. Florida Hill Road Corporation v. Commissioner of Agriculture, 164 Conn. 360, 365-66, 321 A.2d 856 (1973), describes the history of the position of state referee and concludes (p. 362, 321 A.2d p. 857) that such a referee "is not a 'judge of the superior court or the court of common pleas' but is sui generis, (and) sits as a special tribunal." See also Prince v. Sheffield, 158 Conn. 286, 291, 259 A.2d 621 (1969), and Harbor Construction Corporation v. D. V. Frione & Co., 158 Conn. 14, 16, 255 A.2d 823 (1969). The state referee system, as a special tribunal, does not encroach upon, and does not unconstitutionally compete with, other constitutional courts. On the contrary, as we noted in Florida Hill Road Corporation (p. 367, 321 A.2d p. 860), state referees "serve the very practical purpose of relieving the court's crowded dockets."

In the light of the clear language of the constitution and the consistent construction of the statute in this court, the plaintiff has failed to sustain her burden of demonstrating the unconstitutionality of § 52-434. State v. Olds, 171 Conn. 395, 411, 370 A.2d 969 (1976); Wilson v. Connecticut Product Development Corporation, 167 Conn. 111, 114, 355 A.2d 72 (1974); Kellems v. Brown, 163 Conn. 478, 486, 313 A.2d 53 (1972), appeal dismissed, 409 U.S. 1099, 93 S.Ct. 911, 34 L.Ed.2d 678 (1973).

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