Sousa v. Sousa

• Decision Date: 02 June 2015
• Docket Number: No. 36604.,36604.
• Citation: 116 A.3d 865,157 Conn.App. 587
• Parties: Eric P. SOUSA v. Donna M. SOUSA.
• Court: Connecticut Court of Appeals

157 Conn.App. 587

116 A.3d 865

Eric P. SOUSA

v.Donna M. SOUSA.

No. 36604.

Appellate Court of Connecticut.

Argued March 2, 2015.

Decided June 2, 2015.

C. Michael Budlong, Hartford, with whom were Brandon B. Fontaine, and, on the brief, Jon T. Kukucka, Hartford, for the appellant (defendant).

William J. Ward, for the appellee (plaintiff).

DiPENTIMA, C.J., and KELLER and FLYNN, Js.

Opinion

KELLER, J.

The trial court previously rendered judgment dissolving the marriage of the plaintiff, Eric P. Sousa, and the defendant, Donna M. Sousa. The defendant now appeals from the judgment of the trial court denying two motions to vacate a prior judgment that modified, by stipulation, a portion of the judgment of dissolution that ordered that the plaintiff's pension benefits be divided equally between the parties. She claims that the court erred by denying her first motion to vacate because it erroneously concluded that she did not meet her burden to prove by clear and convincing evidence that the plaintiff fraudulently failed to disclose the accurate value of his employee pension plan in his financial affidavit. In addition, she claims that the court erred by denying her second motion to vacate because it erroneously concluded that it had subject matter jurisdiction to modify the order in the judgment of dissolution dividing the plaintiff's pension benefits equally between the parties. We reverse the judgment of the court as to its denial of her second motion to vacate for lack of subject matter jurisdiction, which also renders the court's denial of her first motion to vacate void.

The following facts, as found by the court, and procedural history are relevant here. “After a fourteen year marriage, the parties were divorced in an uncontested proceeding on December 19, 2001. Both parties were represented by counsel. The parties exchanged extensive discovery and participated [with] a special master pretrial.

“A separation agreement was prepared and executed which, among other things, provided that the plaintiff's borough of Naugatuck police pension be divided equally via a Qualified Domestic Relations Order (QDRO).¹ The QDRO was prepared by the defendant's counsel, who received information about the pension from the plaintiff's counsel .... A further provision in the agreement called for the plaintiff to pay periodic alimony of $130 per week, subject to termination at the end of five years, or earlier upon the [defendant's] cohabitation or the death of either party.

“Approximately two years after the divorce, the defendant began cohabitating with Tom Spivak, now her husband. Upon becoming aware of the situation, the plaintiff informed the defendant that she was in violation of their divorce agreement and that he would be seeking to terminate the alimony. After some discussion, the defendant informed the plaintiff that she desired to finish her education leading to a teaching degree, higher income and [her own] pension but would need the alimony payments in order to do so. The defendant proposed to waive her right to her share of the plaintiff's pension in exchange for a continuation of the alimony for three years despite her admitted cohabitation. The plaintiff 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 plaintiff filed a motion to modify judgment in accordance with stipulation ... to have the full pension returned to him. By agreement, his counsel prepared the motion and the accompanying stipulation, which was signed by both parties and submitted to the court for approval. Both parties appeared in court before Judge Robert Resha on January 2, 2007, the plaintiff with counsel and the defendant appear[ing] as a self-represented litigant.

“During the hearing, Judge Resha canvassed the defendant, asking if she had reviewed the terms and conditions of the stipulation with a family relations officer, to which she replied in the affirmative. The terms of the stipulation were then read into the record. The judge then asked her why she was entering into this agreement, which waived her right to receive any portion of the plaintiff's pension. To her credit, the defendant truthfully replied that it was her idea, pursuant to an agreement entered into three years earlier that provided that the plaintiff would not cease alimony payments and she would relinquish her portion of his pension.

“Judge Resha further asked the defendant if she understood that once she relinquishe[d] any right to the pension it [would] not be able to be addressed by the court in the future—that it would be [the plaintiff's] from that point on. She once again answered in the affirmative. The judge then asked if she was comfortable entering into the agreement without the benefit of an attorney. Again she answered in the affirmative. The court then made a finding that the stipulation was warranted, accepted it and made it a final order of the court. No appeal was ever taken.

“Four years after the entry of the order, [on] March 31, 2011, the defendant filed her [first] motion to open and vacate judgment.... In that motion, the defendant allege[d] that the modification [in 2007] was secured by fraud on the part of the plaintiff. On November 2, 2011, the defendant filed a [second] motion to vacate the January 2, 2007 order ... this time claiming that the court [in 2007] lacked jurisdiction to enter such an order. On November 9, 2011, the defendant filed a motion for counsel fees postjudgment.... The matter was heard by the court [Hon. Lloyd Cutsumpas, judge trial referee] on January 14, 2014. Both parties were represented by competent counsel, who filed well written posttrial briefs and zealously represented their clients as required by the oath of their office.” (Footnotes altered.)

On February 25, 2014, the court issued a memorandum of decision denying all three of the defendant's motions.² Regarding her first motion to vacate, the court emphasized that the defendant had the burden to prove by clear and convincing evidence that the plaintiff committed fraud by allegedly failing to fully and accurately disclose the value of his pension plan in his financial affidavit. The court determined that the defendant failed to meet her burden to prove that the value of the plaintiff's pension plan listed in his financial affidavit was inaccurate or that he knew that the value was inaccurate. Furthermore, the court noted that portions of the defendant's testimony “[were] conflicting and lacked credibility,” and that there was no evidence in the record indicating that, “had the facts been known as the defendant claims, the result of a new hearing would have been different.” For the foregoing reasons, the court concluded that the defendant failed to demonstrate, by clear and convincing evidence, that the plaintiff committed fraud. As a result, the court denied the defendant's first motion to vacate.

Regarding her second motion to vacate, the court rejected her argument that, in 2007, it lacked subject matter jurisdiction to modify the order in the judgment of dissolution dividing the plaintiff's pension benefits equally between the parties. The court quoted General Statutes § 52–212a,³ which provides in relevant part that “a 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 following the date on which it was rendered or passed.” Section 52–212a further provides in relevant part that “[t]he parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court....” Guided by that language, the court determined that, although the order modifying the judgment of dissolution was entered well over four months after the court rendered the judgment of dissolution, the parties had acquiesced to the court's jurisdiction by submitting a stipulation requesting a modification. Furthermore, the court noted that Judge Resha had canvassed the defendant as to the stipulation, that the defendant had stated her intention to relinquish her claim to the plaintiff's pension benefits, that the defendant had broached the idea of modifying the judgment of dissolution in this way, and that the defendant was comfortable entering into the postdissolution agreement without legal representation. For the foregoing reasons, the court concluded that both parties had waived the four month requirement set forth in § 52–212a and submitted to the jurisdiction of the court. As a result, the court denied the defendant's second motion to vacate. This appeal followed.

We first consider the defendant's claim that the court improperly denied her second motion to vacate because it is dispositive of this appeal. Specifically, she asserts that the court erred in concluding that, in 2007, it had subject matter jurisdiction to modify the order in the judgment of dissolution dividing the plaintiff's pension benefits equally between the parties. In support of her claim, she cites multiple authorities setting forth the well established principle that, pursuant to General Statutes § 46b–81, a court must enter property distribution orders at the time of dissolution and, generally, cannot subsequently modify those orders. Furthermore, she asserts that the court erred in relying on § 52–212a to establish its jurisdiction because that statute applies solely to motions to open, and the motion filed by the plaintiff in 2007, requesting that the court modify the judgment of dissolution pursuant to the parties' stipulation, was considered to be a motion to modify. We agree with her first argument and conclude that the court lacked subject matter jurisdiction to modify the order in the judgment of dissolution dividing the plaintiff's pension benefits equally between the parties.

We begin by setting forth the relevant standard of review. “[B]ecause [a] determination regarding a trial court's subject...