Reinke v. Sing

• Citation: 328 Conn. 376,179 A.3d 769
• Decision Date: 13 March 2018
• Docket Number: SC 19687
• Court: Supreme Court of Connecticut
• Parties: Gail REINKE v. Walter SING

328 Conn. 376

179 A.3d 769

Gail REINKE

v.Walter SING

SC 19687

Supreme Court of Connecticut.

Argued September 11, 2017

Officially released March 13, 2018

Eric M. Higgins, with whom, on the brief, was Leonard M. Braman, for the appellant (plaintiff).

Reine C. Boyer, for the appellee (defendant).

Livia D. Barndollar filed a brief for the Connecticut Bar Association as amicus curiae.

Campbell D. Barrett, Jon T. Kukucka and Johanna S. Katz filed a brief for the Connecticut Chapter of the American Academy of Matrimonial Lawyers as amicus curiae.

Palmer, Eveleigh, McDonald, Robinson, D'Auria and Espinosa, Js.^*

PALMER, J.

Under General Statutes § 46b–86(a),¹ unless a dissolution decree provides otherwise, the trial court may at any time modify any final order for the periodic payment of alimony upon a showing of a substantial change in the circumstances of either party, but may not modify any assignment of the estate or a portion thereof of one party to the other party. In this certified appeal, the plaintiff, Gail Reinke, appeals from the judgment of the Appellate Court, which reversed the trial court's decision to modify the property distribution orders in a prior judgment dissolving her marriage to the defendant, Walter Sing. The plaintiff claims that the Appellate Court incorrectly concluded that, under § 46b–86 (a), in the absence of a finding of fraud, the trial court lacked subject matter jurisdiction to modify the prior judgment. We agree and, accordingly, reverse the judgment of the Appellate Court.²

The opinion of the Appellate Court sets forth the following relevant facts and procedural history. "The parties were married in 1989 and had two children. The plaintiff [holds] a bachelor's degree and previously had been employed in a number of well paying jobs. During the marriage, she became a homemaker; she also worked part-time ‘from time to time.’ The defendant [holds] a degree in mathematics, and he worked throughout the marriage, most recently as a self-employed consultant.

"The marriage was dissolved by the trial court, Hon. Dennis F. Harrigan , judge trial referee, on October 2, 2007. The parties entered into a ‘Stipulation for Judgment,’ which was incorporated into the judgment of dissolution. On May 3, 2010, the plaintiff filed a motion to open the judgment of dissolution on the basis of fraud, claiming that the defendant failed to disclose some of his assets on the financial affidavit relied [on] at the time of the dissolution. On September 28, 2010, the trial court, Shay, J. , opened the judgment ‘by oral agreement of both parties, without a finding of fraud,’ in order to reassess the financial orders.

"Following a trial, the court issued its decision on August 23, 2013. The court found that the defendant's income actually had been twice the amount that the defendant disclosed at the time of the original dissolution, and the lesser amount had been relied on in formulating the terms of the initial stipulation and judgment. The court also found that the defendant had underreported the values of his investment accounts, retirement accounts, life insurance, and anticipated tax refund; he also underreported the value of the plaintiff's share of a condominium in New Jersey. The court, therefore, ordered the amount and term of the alimony altered, the amounts the defendant owed to the plaintiff with respect to various marital assets and retirement accounts altered, and awarded the plaintiff attorney's fees. On September 27, 2013, the court issued a correction to its memorandum of decision; the correction fixed a calculation error, but the court declined to amend its prior award of attorney's fees." (Footnote omitted.) Reinke v. Sing , 162 Conn. App. 674, 675–76, 133 A.3d 501 (2016).

The plaintiff appealed to the Appellate Court, which, sua sponte, "ordered the trial court to articulate whether, in granting the motion to open ‘without a finding of fraud,’ it found there was no fraud or was simply not making a finding regarding fraud. The trial court issued an articulation ... stating that, at the time the judgment was opened, it made no finding one way or the other, but that, after hearing the evidence, it found that the plaintiff had failed to prove fraud by clear and convincing evidence. Both parties submitted supplemental briefs in response to the trial court's articulation; the plaintiff argued, in essence, that failing to find fraud was clearly erroneous, and the defendant disagreed." Id., at 677, 133 A.3d 501.

In light of the trial court's articulation, the Appellate Court then "requested the parties to submit supplemental briefs on the question of whether the trial court had subject matter jurisdiction to open the judgment in the absence of a finding of fraud." Id. In answering that question, the Appellate Court "directed the parties' attention to Sousa v. Sousa , 157 Conn. App. 587, 116 A.3d 865 [ (2015), rev'd, 322 Conn. 757, 143 A.3d 578 (2016) ]," in which the court noted that § 46b–86(a)"deprives the Superior Court of continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of property of one party to the other party ...." (Internal quotation marks omitted.) Id., at 595–96, 116 A.3d 865.

The Appellate Court reversed the trial court's decision, explaining that, during the pendency of the appeal, the court decided Forgione v. Forgione , 162 Conn. App. 1, 6–8, 129 A.3d 766 (2015), cert. denied, 320 Conn. 920, 132 A.3d 1094 (2016), a case directly on point that held that, "in the absence of a finding or concession of fraud, the trial court lack[s] subject matter jurisdiction to open a dissolution judgment, at least as to the division of the parties' marital assets, despite an agreement by the parties to permit the trial court to do so."³ Reinke v. Sing , supra, 162 Conn. App. at 677, 133 A.3d 501. In light of its determination that the trial court lacked subject matter jurisdiction to open the judgment and to enter the modification order without a finding of fraud, the Appellate Court declined to reach the merits of the plaintiff's claims on appeal. See id., at 677–78, 133 A.3d 501. We granted the plaintiff's petition for certification to appeal, limited to the issue of whether "the Appellate Court correctly determine[d] that, in the absence of a finding of fraud, the trial court lacked subject matter jurisdiction to open the parties' judgment of dissolution of their marriage." Reinke v. Sing , 321 Conn. 911, 912, 136 A.3d 644 (2016). We now reverse the Appellate Court's judgment.⁴

A determination regarding a trial court's subject matter jurisdiction is a question of law over which we exercise plenary review. See, e.g., Connecticut Coalition Against Millstone v. Rocque , 267 Conn. 116, 127–28, 836 A.2d 414 (2003). "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction .... The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." (Internal quotation marks omitted.) Sousa v. Sousa , 322 Conn. 757, 770, 143 A.3d 578 (2016). In determining whether a court has subject matter jurisdiction, however, we indulge every presumption in favor of jurisdiction. E.g., Connecticut Light & Power Co. v. Costle , 179 Conn. 415, 421 n.3, 426 A.2d 1324 (1980).

In concluding that the trial court lacked subject matter jurisdiction to open the dissolution judgment, the Appellate Court relied on Forgione ; see Reinke v. Sing , supra, 162 Conn. App. at 677, 133 A.3d 501 ; which, in turn, relied on Sousa v. Sousa , supra, 157 Conn. App. 587, 116 A.3d 865 ; see Forgione v. Forgione , supra, 162 Conn. App. at 6–8, 129 A.3d 766 ; in which the Appellate Court determined that § 46b–86(a) deprived the trial court of subject matter jurisdiction to modify, by stipulation of the parties, a property distribution order contained in a prior judgment of dissolution. See Sousa v. Sousa , supra, 157 Conn. App. at 595–96, 116 A.3d 865. For the reasons set forth hereinafter, we conclude that Sousa v. Sousa , 157 Conn. App. 587, 116 A.3d 865, was wrongly decided. We further conclude that General Statutes § 52–212a⁵ authorized the trial court in the present case to open the dissolution judgment in accordance with the parties' agreement. Accordingly, we reverse the Appellate Court's judgment and remand the case to that court for consideration of the merits of the plaintiff's claims.

To fully understand the Appellate Court's error in the present case, it is necessary to examine that court's decision in Sousa . In Sousa , the parties were divorced in 2001, and, pursuant to the parties' separation agreement, the husband's pension was divided equally between the parties. Sousa v. Sousa , supra, 157 Conn. App. at 590, 116 A.3d 865. The husband was required to pay periodic alimony of $130 per week, "subject to termination at the end of five years, or earlier upon the [wife's] cohabitation or the death of either party." (Internal quotation marks omitted.) Id., at 591, 116 A.3d 865.

"Approximately two years after the divorce, the [wife] began cohabitating with [her boyfriend] .... Upon becoming aware of the situation, the [husband] informed the [wife] that she was in violation of their divorce agreement and that he would be seeking to terminate the alimony. After some discussion ... [t]he [wife] proposed to waive her right to her share of the [husband's] pension in exchange for a continuation of the alimony for three years despite her admitted cohabitation. The [husband] agreed to the proposal and continued to pay the alimony....

"After the conclusion of the five year alimony period established by the terms of the separation agreement, the [husband] filed a motion to modify [the] judgment in accordance with [the...