Sousa v. Sousa , 322 Conn. 757 ( 2016 )

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ERIC P. SOUSA v. DONNA M. SOUSA
(SC 19504)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued May 2—officially released August 30, 2016
William J. Ward, for the appellant (plaintiff).
C. Michael Budlong, with whom were Brandon B.
Fontaine and, on the brief, Emily C. Carr, for the appel-
lee (defendant).
Opinion
ROBINSON, J. In this certified appeal, we consider
whether it is so ‘‘entirely obvious’’ that a trial court
lacks subject matter jurisdiction to modify a property
distribution in a dissolution of marriage judgment that
such a modification, rendered in accordance with a
stipulation by the parties, is subject to collateral attack
under Vogel v. Vogel, 178 Conn. 358, 362–63, 422 A.2d
271 (1979), and § 12 of the Restatement (Second) of
Judgments.1 The plaintiff, Eric P. Sousa, appeals, upon
our grant of his petition for certification,2 from the judg-
ment of the Appellate Court reversing the judgment
of the trial court, Hon. Lloyd Cutsumpas, judge trial
referee, denying a motion of the defendant, Donna M.
Sousa, to vacate a prior judgment, rendered by the
court, Resha, J., which ‘‘modified, by stipulation, a por-
tion of the judgment of dissolution that ordered that
the plaintiff’s pension benefits be divided equally
between the parties.’’3 Sousa v. Sousa, 157 Conn. App.
587, 590, 116 A.3d 865 (2015). On appeal, the plaintiff
claims that the Appellate Court improperly failed to
consider aspects of the doctrine of finality of judgments
on the basis of its conclusion that it was ‘‘entirely obvi-
ous’’ that, under General Statutes § 46b-81 (a) and Gen-
eral Statutes (Supp. 2016) § 46b-86 (a),4 Judge Resha
lacked subject matter jurisdiction to modify the pension
division in the prior judgment of dissolution. We con-
clude that: (1) given a conflict in the case law on point
and the Superior Court’s plenary jurisdiction over fam-
ily relations matters, the Appellate Court improperly
determined that it was ‘‘entirely obvious’’ that Judge
Resha lacked subject matter jurisdiction to modify the
property distribution in the judgment of dissolution;
and (2) considerations of finality of judgments, as set
forth in § 12 of the Restatement (Second) of Judgments,
do not support permitting the defendant to mount a
collateral attack on the modified judgment. Accord-
ingly, we reverse the judgment of the Appellate Court.
The Appellate Court’s opinion aptly sets forth the
following relevant facts, as found by the trial court, and
procedural history. ‘‘After a fourteen year marriage, the
parties were divorced in an uncontested proceeding on
December 19, 2001. Both parties were represented by
counsel. . . .
‘‘A separation agreement was prepared and executed
which, among other things, provided that the plaintiff’s
[B]orough of Naugatuck police pension be divided
equally via a Qualified Domestic Relations Order . . . .5
[That order] 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 ali-
mony 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 cohabit[ing] 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 discus-
sion, 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 defen-
dant 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 cohabita-
tion. 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 accor-
dance with [the] stipulation . . . to have the full pen-
sion 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 . . . Resha on January 2, 2007, the plain-
tiff 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, pursu-
ant 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 [the pension] would be
[the plaintiff’s] from that point on. She once again
answered in the affirmative. The judge then asked if
[the defendant] 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 [the] judgment . . . . In that motion, the
defendant allege[d] that the modification [in 2007] was
secured by fraud on the part of the plaintiff. On Novem-
ber 2, 2011, the defendant filed a [second] motion to
vacate the January 2, 2007 order . . . this time claiming
that [Judge Resha] lacked jurisdiction to enter such an
order. On November 9, 2011, the defendant filed a
motion for counsel fees postjudgment . . . . The mat-
ter was heard by the [trial court] on January 14, 2014.
Both parties were represented by competent counsel
. . . .
‘‘On February 25, 2014, the [trial] court issued a mem-
orandum of decision denying all three of the defendant’s
motions.’’ (Footnote in original; internal quotation
marks omitted.) Sousa v. Sousa, supra, 157 Conn. App.
590–93. With respect to the second motion to vacate,
which is at issue in this certified appeal, the trial court
‘‘rejected [the defendant’s] argument that, in 2007,
[Judge Resha] lacked subject matter jurisdiction to
modify the order in the judgment of dissolution dividing
the plaintiff’s pension benefits equally between the par-
ties. The court quoted General Statutes § 52-212a, 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 provi-
sions of this section or otherwise submit to the jurisdic-
tion of the court . . . .’ Guided by that language, the
court determined that, although [Judge Resha’s] 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 stipula-
tion, 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 postdisso-
lution 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.’’6 (Footnote omitted.) Id., 593–94.
The defendant appealed from the judgment of the
trial court denying her three motions to the Appellate
Court. Id., 594. With respect to the defendant’s second
motion to vacate, the Appellate Court agreed with the
defendant’s claim that, in 2007, Judge Resha ‘‘lacked
subject matter jurisdiction to modify the order in the
judgment of dissolution dividing the plaintiff’s pension
benefits equally between the parties.’’ Id., 595. Relying
on its decision in Stechel v. Foster, 125 Conn. App. 441,
446–47, 8 A.3d 545 (2010), cert. denied, 300 Conn. 904,
12 A.3d 572 (2011), the Appellate Court stated that a
‘‘property distribution order may be modified only if a
party files a motion to open requesting a modification
within four months of the judgment of dissolution or,
if the motion is filed on the basis of fraud, promptly
upon the discovery of fraud. . . . Here, [the] pension
benefits are considered to be property distributable
under § 46b-81 (a) . . . [and] at the time of dissolution,
[the defendant was] awarded . . . one half of the plain-
tiff’s pension benefits, [under] the parties’ separation
agreement, which [was] incorporated into the judgment
of dissolution. Neither party filed a motion to open,
either within four months of the judgment of dissolution
or on the basis of fraud, requesting a modification of
the order regarding the plaintiff’s pension benefits.
Therefore, by subsequently modifying the order divid-
ing the plaintiff’s pension benefits equally between the
parties, [Judge Resha] acted outside of [his] jurisdic-
tional authority under § 46b-86 (a).’’ (Citations omitted.)
Sousa v. Sousa, supra, 157 Conn. App. 596.
The Appellate Court further emphasized that the ‘‘fact
that the parties submitted a stipulation requesting that
the court modify the order in the judgment of dissolu-
tion regarding the pension benefits has no bearing on
the court’s lack of jurisdiction to modify that order.’’
Id., 596–97. The Appellate Court explained that § 52-
212a, which ‘‘permits parties to waive the statutory
deadline imposed on the filing of motions to open and
to submit to jurisdiction otherwise conferred on a court
by statute,’’ did not confer that jurisdiction on Judge
Resha. Id., 597. Finally, the Appellate Court rejected
the plaintiff’s reliance on Urban Redevelopment Com-
mission v. Katsetos, 86 Conn. App. 236, 860 A.2d 1233(2004), cert. denied, 272 Conn. 919, 866 A.2d 1289(2005), for the proposition that ‘‘the doctrine of finality
of judgments precludes the defendant’s claim regarding
[Judge Resha’s] lack of subject matter jurisdiction,’’
reasoning that ‘‘it is entirely obvious that § 46b-86 (a)
unequivocally deprives a court of subject matter juris-
diction to enter postdissolution orders modifying prop-
erty distribution provisions in a judgment of dissolution.
Therefore, we need not apply the factors set forth in
Urban Redevelopment Commission to determine
whether the doctrine of finality of judgments precludes
the defendant’s subject matter jurisdiction claim.’’
(Emphasis added.) Sousa v. Sousa, supra, 157 Conn.
App. 559–601. Determining that it was unnecessary to
reach the defendant’s challenge to the trial court’s
denial of the first motion to vacate, which was based
on fraud; see footnote 6 of this opinion; the Appellate
Court reversed the judgment of the trial court in part
and remanded the case to that court ‘‘with direction
to grant the defendant’s second motion to vacate; the
judgment is vacated as to the denial of the defendant’s
first motion to vacate; the judgment is affirmed in all
other respects.’’7 Id., 601. This certified appeal followed.
See footnote 2 of this opinion.
On appeal, the plaintiff claims that the Appellate
Court improperly failed to consider principles of finality
of judgments in allowing the defendant to make a
belated collateral attack on Judge Resha’s modification
to the underlying judgment of dissolution, in light of
its conclusion that it was ‘‘entirely obvious’’ that Judge
Resha lacked subject matter jurisdiction. He relies on,
inter alia, Monroe v. Monroe, 177 Conn. 173, 413 A.2d
819, cert. denied, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed.
2d 14 (1979), and Vogel v. Vogel, supra, 178 Conn. 358,
and posits that the ‘‘principle of finality’’ has ‘‘moder-
ated’’ the ‘‘traditional view’’ that ‘‘subject matter juris-
diction could be traditionally attacked both directly and
collaterally.’’ The plaintiff emphasizes that the Superior
Court is a court of general jurisdiction that had the
institutional competence to consider the challenged
stipulation between the parties, which was not so far
outside of Judge Resha’s jurisdiction to modify periodic
alimony payments under § 46b-86 (a) as to create an
‘‘entirely obvious’’ jurisdictional defect. Applying princi-
ples of finality of judgments; see, e.g., Urban Redevelop-
ment Commission v. Katsetos, supra, 86 Conn. App.
236; the plaintiff then relies on, inter alia, Daly v. Daly,
19 Conn. App. 65, 561 A.2d 951 (1989), and Morris v.
Irwin, 4 Conn. App. 431, 494 A.2d 626 (1985), to contend
that Judge Resha’s modification of the pension distribu-
tion portion of the dissolution judgment should receive
the benefit of finality, regardless of any jurisdictional
defect, because it was four years old when attacked,
the defendant was ‘‘fully aware’’ of the consequences
of the stipulation underlying the modification, and she
had the ‘‘opportunity to fully litigate’’ subject matter
jurisdiction in 2007.
Beyond mounting procedural defenses to the plain-
tiff’s claims in this certified appeal, namely that he failed
to preserve them before the trial court8 or adequately
brief them in this court,9 the defendant argues that the
Appellate Court properly determined under, for exam-
ple, In re Shamika F., 256 Conn. 383, 408, 773 A.2d
347 (2001), that it need not conduct a full finality of
judgments analysis because it is ‘‘entirely obvious’’ that
Judge Resha lacked subject matter jurisdiction to mod-
ify the original division of the plaintiff’s pension. Citing,
inter alia, Stechel v. Foster, supra, 125 Conn. App. 446–
47, and Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d
874 (1980) (per curiam), the defendant emphasizes that
the Superior Court’s authority to transfer property in
a dissolution proceeding is granted by statute, and that
under §§ 46b-81 and 46b-86 (a), the court lacks continu-
ing jurisdiction to modify such distributions. She
emphasizes that the parties cannot confer such jurisdic-
tion with their consent or waiver, thus rendering Judge
Resha’s lack of jurisdiction ‘‘entirely obvious’’ under
this court’s decision in Broaca v. Broaca, 181 Conn. 463,
468, 435 A.2d 1016 (1980). Finally, relying on Broaca,
the defendant argues that, even under the principles
regarding the finality of judgments set forth in Urban
Redevelopment Commission v. Katsetos, supra, 86
Conn. App. 236, the equities do not preclude an attack
on the modified judgment because she was self-repre-
sented, she did not actually litigate the issue of jurisdic-
tion before Judge Resha in 2007, and the mosaic theory
of property distribution counsels in favor of maintaining
the original orders. We agree, however, with the plain-
tiff, and conclude that: (1) it was not ‘‘entirely obvious’’
that Judge Resha lacked subject matter jurisdiction to
modify the judgment of dissolution; and (2) finality con-
siderations preclude a collateral attack on Judge
Resha’s modification of the judgment.
The issues presented in this certified appeal ‘‘[impli-
cate] the issue of subject matter jurisdiction. As a pre-
liminary matter, we note that [i]t is well established
that, in determining whether a court has subject matter
jurisdiction, every presumption favoring jurisdiction
should be indulged. . . . When reviewing an issue of
subject matter jurisdiction on appeal, [w]e have long
held that because [a] determination regarding a trial
court’s subject matter jurisdiction is a question of law,
our review is plenary. . . . 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 proceed-
ings, including on appeal.’’ (Citation omitted; internal
quotation marks omitted.) Keller v. Beckenstein, 305
Conn. 523, 531–32, 46 A.3d 102 (2012); see also Invest-
ment Associates v. Summit Associates, Inc., 309 Conn.
840, 848, 74 A.3d 1192 (2013) (collateral attack on
judgment).
I
Although challenges to subject matter jurisdiction
may be raised at any time, it is well settled that ‘‘[f]inal
judgments are . . . presumptively valid . . . and col-
lateral attacks on their validity are disfavored.’’ (Cita-
tions omitted.) Hirtle v. Hirtle, 217 Conn. 394, 401,
586 A.2d 578 (1991). ‘‘The reason for the rule against
collateral attack is well stated in these words: The law
aims to invest judicial transactions with the utmost
permanency consistent with justice. . . . Public policy
requires that a term be put to litigation and that judg-
ments, as solemn records upon which valuable rights
rest, should not lightly be disturbed or overthrown.
. . . [T]he law has established appropriate proceedings
to which a judgment party may always resort when he
deems himself wronged by the court’s decision. . . .
If he omits or neglects to test the soundness of the
judgment by these or other direct methods available
for that purpose, he is in no position to urge its defective
or erroneous character when it is pleaded or produced
in evidence against him in subsequent proceedings.
Unless it is entirely invalid and that fact is disclosed
by an inspection of the record itself the judgment is
invulnerable to indirect assaults upon it.’’ (Emphasis
added; internal quotation marks omitted.) In re Sham-
ika F., supra, 256 Conn. 406–407.
First stated in Vogel v. Vogel, supra, 178 Conn. 362–63,
it is now well settled that, ‘‘[u]nless a litigant can show
an absence of subject matter jurisdiction that makes
the prior judgment of a tribunal entirely invalid, he
or she must resort to direct proceedings to correct
perceived wrongs . . . . A collateral attack on a judg-
ment is a procedurally impermissible substitute for an
appeal. . . . [A]t least where the lack of jurisdiction
is not entirely obvious, the critical considerations are
whether the complaining party had the opportunity to
litigate the question of jurisdiction in the original action,
and, if he did have such an opportunity, whether there
are strong policy reasons for giving him a second oppor-
tunity to do so.’’ (Citation omitted; emphasis added;
internal quotation marks omitted.) In re Shamika F.,
supra, 256 Conn. 407–408.
These principles are consistent with the modern law
of civil procedure reflected in § 12 of the Restatement
(Second) of Judgments; see footnote 1 of this opinion;
which this court first embraced in draft form in Vogel v.
Vogel, supra, 178 Conn. 362–63, and Monroe v. Monroe,
supra, 177 Conn. 178. See footnote 18 of this opinion.
Specifically, § 12 of the Restatement (Second) of Judg-
ments reflects the belief of the American Law Institute,
shared by this court, that ‘‘giv[ing] an expansive inter-
pretation to the concept of subject matter jurisdiction
would . . . undermine significantly the doctrine of res
judicata, and . . . eliminate the certainty and finality
in the law and in litigation which the doctrine is
designed to protect. . . . A court does not truly lack
subject matter jurisdiction if it has competence to
entertain the action before it. . . . Lesser irregularities
do not make a final judgment void.’’ (Citation omitted;
emphasis added; internal quotation marks omitted.)
Vogel v. Vogel, supra, 363; see Hirtle v. Hirtle, supra,
217 Conn. 401; Meinket v. Levinson, 193 Conn. 110,
114, 474 A.2d 454 (1984); Connecticut Pharmaceutical
Assn., Inc. v. Milano, 191 Conn. 555, 560, 468 A.2d
1230 (1983); 1 Restatement (Second), Judgments § 12,
comment (b), pp. 118–19 (1982). Indeed, we recently
noted our ‘‘continue[d] . . . agree[ment] with the vital-
ity of this rule . . . .’’ Investment Associates v. Summit
Associates, Inc., supra, 309 Conn. 855.
Thus, to be ‘‘entirely obvious’’ and sustain a collateral
attack on a judgment under the principles contained
within § 12 of the Restatement (Second) of Judgments,
a jurisdictional deficiency must amount to a ‘‘fundamen-
tal mistake’’ that is ‘‘so plainly beyond the court’s juris-
diction that its entertaining the action was a manifest
abuse of authority.’’ (Internal quotation marks omitted.)
Cameron v. Rollo, 196 Vt. 346, 351, 97 A.3d 454 (2014); cf.
id., 350–52 (declining to give collateral estoppel effect to
family court’s refusal to exercise statutorily conferred
exclusive jurisdiction over property distribution in
annulment case). Indeed, the United States Supreme
Court has observed that such collateral attack should
be permitted only in ‘‘rare instance[s],’’ and ‘‘only for
the exceptional case in which the court that rendered
judgment lacked even an ‘arguable basis’ for jurisdic-
tion.’’ United Student Aid Funds, Inc. v. Espinosa, 559
U.S. 260, 271, 130 S. Ct. 1367, 176 L. Ed. 2d 158 (2010).
‘‘[T]he importance of finality in litigation means that
the exception to the claim preclusion rule applies in
only the most limited circumstances.’’ (Emphasis
added.) Lincoln Loan Co. v. Portland, 340 Or. 613, 628,
136 P.3d 1 (2006); accord Meinket v. Levinson, supra,
193 Conn. 114 (relying on § 12 of Restatement [Second]
of Judgments in stating that collateral attack on court’s
subject matter jurisdiction in ‘‘contested case’’ is ‘‘lim-
ited’’); Broaca v. Broaca, supra, 181 Conn. 473 (Peters,
J., dissenting) (‘‘I would emphasize the truly excep-
tional nature of the ‘plainly beyond’ cases’’ [empha-
sis added]).
Our cases demonstrate that it is extraordinarily rare
for a tribunal’s jurisdiction to be so plainly lacking that
it is ‘‘entirely obvious.’’ Most significantly, in Vogel, this
court rejected a collateral attack on an alimony order
in a dissolution judgment, rendered more than twenty
years earlier, which a husband later claimed was void
because, ‘‘at the time judgment was rendered, the law in
this state . . . provided that the trial court was without
authority to assign any of the husband’s property to a
woman divorced for her own misconduct. Since the
[husband] obtained a divorce on the ground of the
[wife’s] wilful desertion . . . it is argued that the court
had no power to order the weekly payments at issue
. . . .’’ (Citation omitted; footnote omitted.) Vogel v.
Vogel, supra, 178 Conn. 361–62. The court reasoned that,
‘‘[a]t the time judgment was rendered,’’ the governing
statutes gave the Superior Court ‘‘exclusive jurisdic-
tion’’ over dissolution cases, and authorized property
distribution and alimony payments. (Internal quotation
marks omitted.) Id., 363. Accordingly, this court deter-
mined that the trial court ‘‘had competence to entertain
the action before it,’’ and rejected the collateral attack
on the judgment, which had resulted from a stipulation
by the parties. (Internal quotation marks omitted.) Id.,363–64; see also, e.g., In re Shamika F., supra, 256
Conn. 407–408 (rejecting collateral attack on order of
temporary custody because ‘‘[t]he lack of jurisdiction,
if any, was far from obvious’’ and ‘‘[a]llowing a collateral
attack three years into that effort would undermine the
purpose of the collateral attack rule as well as the goal
of our state agencies in protecting the neglected chil-
dren of Connecticut’’ [internal quotation marks omit-
ted]); Meinket v. Levinson, supra, 193 Conn. 115(rejecting collateral attack on default judgment, ren-
dered without affidavit of debt or hearing in damages,
because court was competent to entertain action and
‘‘[s]uch an error in applying the Practice Book rules
governing judgments following default is not even argu-
ably jurisdictional’’); accord Torrington v. Zoning Com-
mission, 261 Conn. 759, 769, 806 A.2d 1020 (2002)
(zoning commission’s lack of jurisdiction to waive regu-
lations and enter into court approved settlement was
not ‘‘entirely obvious’’ given that it generally ‘‘is empow-
ered to determine whether: [1] the proposed use of the
property is permitted under the zoning regulations; [2]
the standards contained in the regulations are satisfied;
and [3] conditions of approval or modifications to the
proposal are necessary to protect public health, safety,
convenience and property values’’).
The defendant, however, relies heavily on Broaca
v. Broaca, supra, 181 Conn. 466, in which this court
sustained a collateral attack on a dissolution judgment
because ‘‘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 poli-
cies insuring his life.’’ Although Broaca supports the
defendant’s position, we view the majority opinion in
that case as a wholly unpersuasive outlier. In particular,
the majority opinion in Broaca does not acknowledge
significantly the heightened scrutiny employed in collat-
eral attack cases under, for example, Vogel v. Vogel,
supra, 178 Conn. 361–62, and contains only one conclu-
sory statement, in a footnote, that the trial court’s sup-
port order ‘‘was plainly beyond its jurisdiction . . . .’’
Broaca v. Broaca, supra, 468 n.4. Thus, this court’s
decision in Broaca was clearly wrong; see, e.g., Conway
v. Wilton, 238 Conn. 653, 660–61, 680 A.2d 242 (1996);
and we overrule it in favor of the analysis employed by
Justice Peters in her comprehensive dissenting opinion,
which is far more consistent with the principles set
forth in § 12 of the Restatement (Second) of Judgments
and case law governing collateral attacks on judgments
for lack of subject matter jurisdiction.10 See Broaca v.
Broaca, supra, 473–74 (Peters, J., dissenting).
Having established just how extreme a lack of juris-
diction must be to be ‘‘entirely obvious,’’ we now turn
to the judgment under collateral attack in the present
case, namely, Judge Resha’s modification of the pension
division in the property distribution. The Appellate
Court determined that the modification was in excess
of the Superior Court’s subject matter jurisdiction under
§§ 46b-81 and 46b-86 (a), as explained by Stechel v.
Foster, supra, 125 Conn. App. 446–47.11 Although the
principles cited by the Appellate Court could well have
provided the defendant with strong support for a direct
appeal from Judge Resha’s decision to modify the judg-
ment, they do not by themselves render any lack of
subject matter jurisdiction ‘‘entirely obvious’’ for pur-
poses of collateral attack. First, the Superior Court is
a general jurisdiction tribunal with ‘‘plenary and general
subject matter jurisdiction over legal disputes in ‘family
relations matters’ ’’ under General Statutes § 46b-1;12
Amodio v. Amodio, 247 Conn. 724, 729, 724 A.2d 1084(1999); that has power—albeit not unfettered under
§§ 46b-81 (a) and 46b-86 (a)—to distribute property in
a marital dissolution.
Second, as the Appellate Court has recently recog-
nized, Connecticut’s case law is in conflict ‘‘regarding
whether the modification of a property distribution
postdissolution implicates the court’s subject matter
jurisdiction or merely its statutory authority.’’ Lawrence
v. Cords, 165 Conn. App. 473, 483 n.8, 139 A.3d 778,
cert. denied, 322 Conn. 907, A.3d (2016).13 Those
cases standing for the proposition that the statutory
restriction on postjudgment modification of property
distribution is jurisdictional, on which the Appellate
Court relied in the present case, ‘‘do not address the
distinction made by [this court] in Amodio v. Amodio,
[supra, 247 Conn. 728], that ‘the court’s authority to act
pursuant to a statute is different from its subject matter
jurisdiction.’ ’’14 Lawrence v. Cords, supra, 483 n.8; see
W. Horton & K. Bartschi, ‘‘2015 Connecticut Appellate
Review,’’ 89 Conn. B.J. 172, 190 (2016) (discussing con-
flict in case law and observing that ‘‘[n]either [Forgione
v. Forgione, 162 Conn. App. 1, 6–7, 129 A.3d 766 (2015),
cert. denied, 320 Conn. 920, 132 A.3d 1094 (2016), nor
Sousa v. Sousa, [supra, 157 Conn. App. 587] cite Amodio
v. Amodio [supra, 724], which explains the distinction
between a court’s subject matter jurisdiction and its
authority to act’’ [footnote omitted]). The mere exis-
tence of this conflict,15 along with the Superior Court’s
general jurisdiction over family matters under § 46b-1,
demonstrates that, even if we assume, without decid-
ing,16 that the restriction of postjudgment modification
of property distributions in § 46b-86 (a) is in fact juris-
dictional in nature, it is far from ‘‘entirely obvious’’ that
Judge Resha was without subject matter jurisdiction in
this case when he modified the pension distribution.
See Broaca v. Broaca, supra, 181 Conn. 472 (Peters, J.,
dissenting); Wells v. Wells, 698 N.W.2d 504, 510 (S.D.
2005). Accordingly, we conclude that the Appellate
Court improperly determined that it was ‘‘entirely obvi-
ous’’ that Judge Resha lacked subject matter jurisdic-
tion to modify the underlying judgment of dissolution
in 2007.
II
Because it was not entirely obvious that Judge Resha
lacked jurisdiction, we next examine the ‘‘critical con-
siderations’’ under Vogel v. Vogel, supra, 178 Conn. 362–
63, namely, ‘‘whether the complaining party had the
opportunity to litigate the question of jurisdiction in the
original action, and, if he did have such an opportunity,
whether there are strong policy reasons for giving him
a second opportunity to do so.’’17 (Internal quotation
marks omitted.) In re Shamika F., supra, 256 Conn.
408; see also Urban Redevelopment Commission v.
Katsetos, supra, 86 Conn. App. 243.
A
We first address whether the defendant had the
opportunity to litigate the issue of jurisdiction when
Judge Resha modified the dissolution judgment in 2007.
The defendant contends that ‘‘the requirement that the
complaining party had the ‘opportunity’ to litigate is
not intended to simply mean that the party could have
litigated the issue if he or she so chose; rather, the
requirement is satisfied only if the party actually did
litigate the issue.’’ (Emphasis altered.) In support of this
contention, the defendant accurately cites a footnote in
Broaca, which relies on comment (c) to § 15 of the
sixth tentative draft of the Restatement (Second) of
Judgments18 in support of the following proposition: ‘‘It
is clear . . . 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.’’ Broaca
v. Broaca, supra, 181 Conn. 468 n.4. We disagree with
this language in Broaca, however, to the extent it stands
for the proposition that the issue of subject matter
jurisdiction must actually be litigated in an original
action to receive the benefit of finality, because it repre-
sents a misreading of comment (c).19 Indeed, the analy-
sis in Broaca has been undercut by Meinket v. Levinson,
supra, 193 Conn. 114 n.5, in which this court stated: ‘‘The
defendant filed an appearance in the original action and
was on notice of all proceedings in that case. He had
an ample opportunity to assert any defenses but did
not avail himself of that opportunity. His default for
failure to plead is, therefore, ‘substantially similar to a
judgment upon a contested action.’ ’’ (Emphasis added.)
Consistent with Meinket, we agree instead with the
dissent in Broaca, which concluded that: ‘‘[I]f the origi-
nal proceedings, in a tribunal of general rather than
limited legal capacity, constituted a contested action,
relitigation is ordinarily precluded whether or not the
question of the tribunal’s jurisdiction was expressly
raised in the original action.’’ (Emphasis added.)
Broaca v. Broaca, supra, 181 Conn. 472 (Peters, J.,
dissenting), citing Restatement (Second), Judgments
§ 15, comment (d), p. 157 (Tent. Draft No. 6, 1979); see
also Broaca v. Broaca, supra, 473 (Peters, J., dissenting)
(‘‘the rule is not limited to cases in which the jurisdic-
tional question was expressly litigated in the original
action’’); 1 Restatement (Second), Judgments § 12, illus-
tration (3), p. 122 (1982) (‘‘S sues M under a worker’s
compensation statute. M defends on the ground that
the injury did not occur during the course of S’s employ-
ment but does not dispute the jurisdiction of the tribu-
nal. Judgment is for S. M may not subsequently attack
the judgment on the ground that the tribunal lacked
subject matter jurisdiction because S was not an
employee of M.’’). Thus, as with other aspects of the
majority opinion in Broaca; see part I of this opinion;
we overrule Broaca v. Broaca, supra, 468 n.4.
Moreover, we disagree with the defendant’s argument
that her status as a self-represented party during the
proceedings before Judge Resha deprived her of a fair
chance to litigate the jurisdictional issue at that point,
given that she ‘‘clearly did not have a full understanding
of the law and proceedings taking place around her,’’
and had been ‘‘pressured by the plaintiff and plaintiff’s
counsel to sign and enter into the 2007 stipulation for
modification when she did not understand its full impli-
cations.’’ The defendant does not cite any findings by
the trial court of such coercion, or any evidence to
support such a claim. To the contrary, the trial court
found that, when Judge Resha canvassed the defendant
before modifying the judgment, the defendant acknowl-
edged in open court that she had consulted with the
family relations office and that it was her idea to modify
the judgment of dissolution in exchange for the plain-
tiff’s forbearance on moving to terminate the alimony
payments in light of her cohabitation.
Further, the defendant’s personal lack of legal knowl-
edge does not equate to a lack of opportunity to litigate
jurisdiction that would sustain the extraordinary mea-
sure of a collateral attack, despite the fact that she was
a self-represented party. Cf. State v. Ryder, 301 Conn.
810, 819 n.5, 23 A.3d 694 (2011) (‘‘[I]t is the established
policy of the Connecticut courts to be solicitous of pro
se litigants and when it does not interfere with the
rights of other parties to construe the rules of practice
liberally in favor of the pro se party. . . . A party who,
unskilled in [legal] matters, seeks to remedy some
claimed wrong by invoking processes which are at best
technical and complicated, is very ill advised and
assumes a most difficult task. Our courts, however,
have always been lenient toward such a one, relaxing
the rules wherever it can be done with propriety . . . .’’
[Citation omitted; emphasis added; internal quotation
marks omitted.]); see also Darin v. Cais, 161 Conn.
App. 475, 480–82, 129 A.3d 716 (2015) (trial court not
obligated to advise self-represented defendant how to
respond to summary judgment motion). This is particu-
larly so, given that ‘‘the judgment here was rendered
by a general jurisdiction court fully capable of making
an adequate determination on the question of its own
jurisdiction. In terms of procedural fairness, [the defen-
dant] had a full opportunity to litigate the question of
subject matter jurisdiction.’’ Wells v. Wells, supra, 698
N.W.2d 510; see also id., 510–11 (rejecting collateral
attack on child support judgment based on claims of
interference with tribal sovereignty). Accordingly, we
conclude that the defendant had the opportunity to
litigate the issue of subject matter jurisdiction before
Judge Resha rendered the modification in 2007.
B
Given that the defendant forwent her opportunity to
litigate subject matter jurisdiction before Judge Resha,
we next look to whether public policy reasons support
giving her a second bite at the apple now. Such policy
reasons include ‘‘whether the litigation is a collateral
or direct attack on the judgment, whether the parties
consented to the jurisdiction originally, the age of the
original judgment, whether the parties had an opportu-
nity originally to contest jurisdiction, the prevention of
a miscarriage of justice, whether the subject matter is
so far beyond the jurisdiction of the court as to consti-
tute an abuse of authority, and the desirability of the
finality of judgments.’’20 (Internal quotation marks omit-
ted.) Morris v. Irwin, supra, 4 Conn. App. 434; see also
1 Restatement (Second), Judgments § 12, comment (d),
p. 122 (1982) (‘‘The question therefore is whether the
public interest in observance of the particular jurisdic-
tional rule is sufficiently strong to permit a possibly
superfluous vindication of the rule by a litigant who
is undeserving of the accompanying benefit that will
redound to him. The public interest is of that strength
only if the tribunal’s excess of authority was plain or
has seriously disturbed the distribution of governmental
powers or has infringed a fundamental constitutional
protection.’’).21
We begin by assuming agreement with the defen-
dant’s argument that the four year old modification to
the judgment is not so entrenched in time as to be
invulnerable from collateral attack. See Martocchio v.
Savoir, 153 Conn. App. 492, 504 n.9, 101 A.3d 953 (2014)
(five years not ‘‘substantial’’ enough period to foreclose
collateral attack based on subject matter jurisdiction,
particularly when plaintiff had not consented to juris-
diction and defendant did not argue timeliness). Never-
theless, such collateral attacks are ‘‘strongly disfavored
. . . because such belated litigation undermines the
important principle of finality.’’ Meinket v. Levinson,
supra, 193 Conn. 113; compare Connecticut Pharma-
ceutical Assn., Inc. v. Milano, supra, 191 Conn. 560(‘‘[t]he fact that a direct jurisdictional challenge might
then have been appropriate is not, however, sufficient
to vindicate a subsequent collateral attack upon the
consent judgment’’), with Arseniadis v. Arseniadis, 2
Conn. App. 239, 244, 477 A.2d 152 (1984) (noting ‘‘[t]he
important factor in this case is that the appeal is a direct
attack on the judgment made shortly after the judgment
was rendered’’).
We next disagree with the defendant’s argument that
the mosaic theory of property distribution provides pub-
lic policy support for her collateral challenge. Specifi-
cally, the defendant argues that Judge Resha’s
modification in 2007 disturbed the property distribution
mosaic originally rendered in 2001. See, e.g., Sunbury
v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989)
(‘‘[I]ssues involving financial orders are entirely inter-
woven. The rendering of a judgment in a complicated
dissolution case is a carefully crafted mosaic, each ele-
ment of which may be dependent on the other.’’ [Inter-
nal quotation marks omitted.]). In Daly v. Daly, supra,
19 Conn. App. 70–72, the Appellate Court relied on the
mosaic theory to reject a collateral challenge to the
nineteen year old original judgment of dissolution, only
part of which—ordering distribution of the principal of
a trust—was claimed to be jurisdictionally defective as
beyond the court’s authority. Further, Daly emphasizes
the parties’ reliance on the jurisdictionally defective
order as a factor counseling against allowing a collat-
eral challenge. See id., 71 (‘‘In this case, the original
trial court’s award of the principal of the trusts was
only one part of a financial award that included alimony,
child support, medical insurance, beneficiary interests
in life insurance policies and attorney’s fees. It clearly
is not possible or desirable to reallocate all the
resources of the parties after twenty years of compli-
ance with and reliance on the original orders of the
court.’’).
Finally, we observe that the parties consented to the
exercise of the court’s jurisdiction when they presented
Judge Resha with a stipulated agreement—as noted
previously, the modification originally was the defen-
dant’s idea, however ill-advised it might have been in
hindsight. Although it is axiomatic that parties cannot
confer jurisdiction on a court by consent; see, e.g., Kel-
ler v. Beckenstein, supra, 305 Conn. 531; Morris v.
Irwin, supra, 4 Conn. App. 435; the defendant’s assent
to the modification undercuts her contention that the
modification was a miscarriage of justice deserving of
disruption on collateral review.22 This is particularly
so, given that Judge Resha’s ratification of the parties’
agreement to modify the original judgment of dissolu-
tion was not so far afield from the Superior Court’s
plenary jurisdiction over family matters that we should
entertain a collateral challenge sparked by the defen-
dant’s change of heart over the bargain that she struck
with the plaintiff. See Hodge v. Hodge, 621 F.2d 590,
592–93 (3d Cir. 1980) (relying on presumption of finality
under § 15 of sixth tentative draft of Restatement
[Second] of Judgments to reject collateral attack on
territorial court of general jurisdiction’s statutorily
unauthorized award of real estate pursuant to dissolu-
tion settlement because parties agreed to judgment and
failed to contest jurisdiction at that time); Vogel v. Vogel,
supra, 178 Conn. 363 (rejecting collateral challenge
because, inter alia, husband ‘‘not only was fully aware
of the consequences of the decrees and had the opportu-
nity to fully litigate the question of jurisdiction in the
original action, but, by stipulation, agreed without reser-
vation to the terms of the orders which he now chal-
lenges’’); Urban Redevelopment Commission v.
Katsetos, supra, 86 Conn. App. 244 (rejecting collateral
attack on jurisdiction of court accepting sale of defen-
dant’s property because ‘‘[t]he plaintiff had the opportu-
nity to contest the taking of his property, but instead
bargained for an immediate cash payment’’); Morris
v. Irwin, supra, 434–35 (rejecting husband’s collateral
attack on challenge to two and one-half year old judg-
ment because, inter alia, he ‘‘by stipulation, agreed with-
out reservation to the terms of the orders which he
now challenges’’ [internal quotation marks omitted]).
Given that Judge Resha’s modification to the dissolu-
tion judgment was the product of an informed stipula-
tion by the parties, both of whom failed to raise any
subject matter jurisdictional challenges at that time,
and given that, as described in part I of this opinion,
the modification arguably was within the scope of the
Superior Court’s plenary jurisdiction over family mat-
ters, we conclude that there are no strong policy rea-
sons to allow an otherwise disfavored collateral attack
on the modified judgment. We therefore conclude that
the Appellate Court improperly reversed the trial court’s
judgment denying the defendant’s second motion to
vacate, which claimed that Judge Resha lacked subject
matter jurisdiction. Because the Appellate Court’s con-
clusion to the contrary caused it to vacate the judgment
of the trial court denying the defendant’s first motion
to vacate without addressing the claims on appeal per-
taining to the issue of fraud, a remand to the Appellate
Court is required for consideration of those claims on
the merits.
The judgment of the Appellate Court reversing the
trial court’s denial of the defendant’s motion to vacate
alleging lack of subject matter jurisdiction is reversed,
and the case is remanded to the Appellate Court with
direction to affirm the judgment of the trial court deny-
ing that motion; the judgment of the Appellate Court
vacating the trial court’s denial of the defendant’s
motion to vacate alleging fraud is reversed and the case
is remanded to the Appellate Court with direction to
consider the defendant’s remaining claims on appeal.
In this opinion ROGERS, C. J., and PALMER, ZARE-
LLA, EVELEIGH and McDONALD, Js., concurred.
1
Section 12 of the Restatement (Second) of Judgments provides: ‘‘When
a court has rendered a judgment in a contested action, the judgment pre-
cludes the parties from litigating the question of the court’s subject matter
jurisdiction in subsequent litigation except if:
‘‘(1) The subject matter of the action was so plainly beyond the court’s
jurisdiction that its entertaining the action was a manifest abuse of author-
ity; or
‘‘(2) Allowing the judgment to stand would substantially infringe the
authority of another tribunal or agency of government; or
‘‘(3) The judgment was rendered by a court lacking capability to make
an adequately informed determination of a question concerning its own
jurisdiction and as a matter of procedural fairness the party seeking to avoid
the judgment should have opportunity belatedly to attack the court’s subject
matter jurisdiction.’’
2
We granted the plaintiff’s petition for certification limited to the following
issue: ‘‘Did the Appellate Court properly conclude that the doctrine of finality
of judgments was not applicable and the trial court did not have subject
matter jurisdiction?’’ Sousa v. Sousa, 317 Conn. 917, 118 A.3d 61 (2015).
3
For purposes of clarity, all references herein to the trial court are to
Judge Cutsumpas, whose decision underlies the Appellate Court decision
that is the subject of this certified appeal. When necessary, Judge Resha is
referred to by name.
4
General Statutes § 46b-81 (a) provides: ‘‘At the time of entering a decree
annulling or dissolving a marriage or for legal separation pursuant to a
complaint under section 46b-45, the Superior Court may assign to either
spouse all or any part of the estate of the other spouse. The court may pass
title to real property to either party or to a third person or may order the
sale of such real property, without any act by either spouse, when in the
judgment of the court it is the proper mode to carry the decree into effect.’’
General Statutes (Supp. 2016) § 46b-86 (a) provides in relevant part:
‘‘Unless and to the extent that the decree precludes modification, any final
order for the periodic payment of permanent alimony or support, an order
for alimony or support pendente lite or an order requiring either party to
maintain life insurance for the other party or a minor child of the parties
may, at any time thereafter, be continued, set aside, altered or modified by
the court upon a showing of a substantial change in the circumstances of
either party or upon a showing that the final order for child support substan-
tially deviates from the child support guidelines . . . unless there was a
specific finding on the record that the application of the guidelines would
be inequitable or inappropriate. . . . This section shall not apply to assign-
ments under section 46b-81 or to any assignment of the estate or a portion
thereof of one party to the other party under prior law. . . .’’ (Emphasis
added.)
We note that, although the legislature has amended both §§ 46b-81 and
46b-86 since the events underlying the present appeal; see, e.g., Public Acts
2013, No. 13-213, §§ 2 and 4; those amendments have no bearing on the
merits of this appeal. In the interest of simplicity, all references to § 46b-
81 are to the current revision of the statute and all references to § 46b-86
are to the version appearing in the 2016 supplement to the General Statutes.
5
‘‘The court incorporated by reference the parties’ separation agreement
into the judgment of dissolution after concluding that the agreement was
fair and equitable.’’ Sousa v. Sousa, supra, 157 Conn. App. 590 n.1.
6
The trial court denied the defendant’s first motion to vacate, because it
concluded that she had failed 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.’’ Sousa v. Sousa,
supra, 157 Conn. App. 593.
7
‘‘Although the defendant listed on her appeal form the court’s denial of
her motion for attorney’s fees as a judgment from which the appeal was
taken, she neither raised nor adequately briefed a claim concerning the
court’s denial of that motion in her appellate brief.’’ Sousa v. Sousa, supra,
157 Conn. App. 593 n.2. The Appellate Court, therefore, declined to review
any challenge to the trial court’s denial of the defendant’s motion for attor-
ney’s fees. Id. That aspect of the Appellate Court’s decision is not at issue
in this certified appeal. See footnote 2 of this opinion.
8
The defendant argues that the plaintiff failed to preserve the finality
issue in the trial court, which both prejudiced her and created an inadequate
record for review because the finality doctrine is an equitable principle
dependent on the trial court’s discretion. See Blumberg Associates World-
wide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 164–66,
84 A.3d 840 (2014) (alternative grounds for affirmance ordinarily must be
preserved for review and rest on adequate record). In response, the plaintiff
contends in his reply brief that we should not reach the defendant’s preserva-
tion argument because she: (1) failed to raise it in a cross petition for
certification pursuant to Practice Book § 84-4; and (2) raised it in her objec-
tion to his petition for certification to appeal; see Practice Book § 84-6; but
we granted the petition anyway, thus implying that we have already decided
the preservation issue adversely to her.
We note at the outset that our decision to grant the plaintiff’s petition
for certification was grounded in our conclusion that this case presents an
issue that preliminarily appears deserving of further review. The grant of
certification implies neither agreement with all arguments made in the peti-
tion, nor outright rejection of all arguments made in opposition, including
those having to do with preservation. Cf. Clarke v. Commissioner of Correc-
tion, 249 Conn. 350, 358, 732 A.2d 754 (1999) (‘‘just as a denial by us of
certification to appeal from a judgment of the Appellate Court in any given
case should not be understood as either approval or disapproval of the
opinion of that court . . . a dismissal of a certified appeal on the ground
that certification was improvidently granted should not be understood as
either approval or disapproval of the decision from which certification to
appeal was originally granted’’ [citation omitted]).
Second, although the defendant’s lack of aggrievement precluded the use
of a cross petition to seek review of her preservation claims; see State v.
Torrence, 196 Conn. 430, 434 n.6, 493 A.2d 865 (1985); she nevertheless was
required to seek permission, pursuant to Practice Book § 84-11 (a), to raise
preservation as an alternative ground for affirming the judgment of the
Appellate Court, as the record reveals that she did not previously raise this
claim in that court. See, e.g., NPC Offices, LLC v. Kowaleski, 320 Conn.
519, 533 n.7, 131 A.3d 1144 (2016). Exercising our discretion to excuse that
lapse, we nevertheless disagree with the defendant’s preservation argu-
ments. First, our review of the record, namely, the plaintiff’s posttrial brief,
demonstrates that he did raise considerations of finality, such as res judicata,
consent, and reliance, in his posttrial brief and objection to the plaintiff’s
motion to open—albeit not as artfully as he has on appeal. Second, a review
of the defendant’s posttrial brief, which contained citations to Monroe v.
Monroe, supra, 177 Conn. 173, and Vogel v. Vogel, supra, 178 Conn. 358,
demonstrates that she should have had at least some awareness that finality
could be an issue in this case, and could have presented any relevant factual
evidence accordingly in support of her motion to vacate. Thus, the concerns
of ambuscade that attend the preservation requirement are not present in
this certified appeal, and we reach the merits of the plaintiff’s finality claims.
See NPC Offices, LLC v. Kowaleski, supra, 530 n.5; see also State v. Santana,
313 Conn. 461, 467, 97 A.3d 963 (2014) (discussing ambuscade concerns and
observing that ‘‘this court has expressed a willingness to review claims that
a party did not explicitly raise to the trial court if it is clear from the record
that the substance of the claim was raised’’ [emphasis added]).
9
We disagree with the defendant’s argument that the plaintiff’s brief is
inadequate because it fails to present any analysis attacking the ‘‘entirely
obvious’’ standard relied upon by the Appellate Court to find a lack of
jurisdiction, which obviated the need to consider the finality factors set
forth in Urban Redevelopment Commission v. Katsetos, supra, 86 Conn.
App. 236. Given the plaintiff’s reliance in his brief on the Superior Court’s
status as a court of general jurisdiction, and his application of authorities
relevant to the issue of finality to the facts of this case, we conclude that
the plaintiff’s brief adequately presents the certified issue for our review
and response by the defendant. See, e.g., Electrical Contractors, Inc. v.
Dept. of Education, 303 Conn. 402, 444 and n.40, 35 A.3d 188 (2012); but
see footnote 16 of this opinion.
10
In her dissenting opinion in Broaca, Justice Peters acknowledged that
this court had held that the statutory preclusion of postmajority child support
to be jurisdictional in nature; see Kennedy v. Kennedy, 177 Conn. 47, 51–53,
411 A.2d 25 (1979); she nevertheless stated that she saw ‘‘no reason to
characterize the trial court’s error in its original order as plainly beyond its
jurisdiction. The trial court had full authority to adjudicate all claims relating
to alimony, to marital property and to support. It had the authority to make
other orders, although concededly not this one, about the insurance in
question. . . . A court which has authority to make valid orders about a
res which is properly before it does not, it seems to me, act plainly beyond
its jurisdiction just because it makes an improper order with respect to that
res.’’ Broaca v. Broaca, supra, 181 Conn. 473–74; see also id., 474 (Peters,
J., dissenting) (concluding that order requiring father to maintain life insur-
ance for benefit of his children was not ‘‘miscarriage of justice’’ subject to
collateral attack).
11
The Appellate Court determined that Judge Resha’s lack of jurisdiction
was ‘‘entirely obvious’’ by relying on the following principles: ‘‘[C]ourts have
no inherent power to transfer property from one spouse to another; instead,
that power must rest upon an enabling statute. . . . The court’s authority
to transfer property appurtenant to a dissolution proceeding rests on . . .
§ 46b-81. . . . Accordingly, the court’s authority to divide the personal prop-
erty of the parties, pursuant to § 46b-81, must be exercised, if at all, at the
time that it renders judgment dissolving the marriage. . . . [Section] 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 under . . . § 46b-81. . . . A court, therefore, does
not have the authority to modify the division of property once the dissolution
becomes final. . . . Although the court does not have the authority to mod-
ify a property assignment, a court . . . does have the authority to issue
postjudgment orders effectuating its judgment.’’ (Citations omitted; footnote
omitted; internal quotation marks omitted.) Stechel v. Foster, supra, 125
Conn. App. 446–47, quoting Bunche v. Bunche, supra, 180 Conn. 289, and
Roos v. Roos, 84 Conn. App. 415, 422, 853 A.2d 642, cert. denied, 271 Conn.
936, 861 A.2d 510 (2004); see also Sousa v. Sousa, 157 Conn. App. 595–96.
12
General Statutes § 46b-1 provides in relevant part: ‘‘Matters within the
jurisdiction of the Superior Court deemed to be family relations matters
shall be matters affecting or involving: (1) Dissolution of marriage, contested
and uncontested, except dissolution upon conviction of crime as provided in
section 46b-47; (2) legal separation; (3) annulment of marriage; (4) alimony,
support, custody and change of name incident to dissolution of marriage,
legal separation and annulment . . . (15) actions related to prenuptial and
separation agreements and to matrimonial and civil union decrees of a
foreign jurisdiction . . . and (18) all such other matters within the jurisdic-
tion of the Superior Court concerning children or family relations as may
be determined by the judges of said court.’’
We note that, although the legislature has amended § 46b-1 since the
events underlying the present appeal; see, e.g., Public Acts 2013, No. 13-
194, § 1; those amendments have no bearing on the merits of this appeal.
In the interest of simplicity, all references to § 46b-1 are to the current
revision of the statute.
13
In Lawrence, the Appellate Court declined to resolve the conflict, but
cited the following authorities to demonstrate its existence: ‘‘Compare
McLoughlin v. McLoughlin, 157 Conn. App. 568, 575–76 n.5, 118 A.3d 64(2015) (‘we note that the distribution of personal property postdissolution
does not implicate the court’s subject matter jurisdiction but, rather, its
statutory authority’), and Roos v. Roos, 84 Conn. App. 415, 421–22, 853 A.2d
642 (noting that distribution of personal property postdissolution is question
of statutory authority, not subject matter jurisdiction), cert. denied, 211
Conn. 936, 861 A.2d 510 (2004), with Forgione v. Forgione, 162 Conn. App.
1, 6–7, 129 A.3d 766 (2015) (stating that court lacked subject matter jurisdic-
tion to modify property distribution postdissolution), and Sousa v. Sousa,
[supra, 157 Conn. App. 596] (‘by subsequently [postdissolution] modifying
the order dividing the plaintiff’s pension benefits equally between the parties,
the court acted outside of its jurisdictional authority’) . . . . See also Bun-
che v. Bunche, [supra, 180 Conn. 289] (‘[b]y its terms, the statute 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 under . . . § 46b-81’); Smith v. Smith, 249 Conn. 265, 273, 752 A.2d
1023 (1999) (‘[T]he statutory scheme regarding financial orders appurtenant
to dissolution proceedings prohibits the retention of jurisdiction over orders
regarding lump sum alimony or the division of the marital estate . . . [and]
confers authority on the trial courts to retain continuing jurisdiction over
orders of periodic alimony, but not over lump sum alimony or property
distributions pursuant to § 46b-81.’ . . .).’’ Lawrence v. Cords, supra, 165
Conn. App. 483 n.8; accord Weyher v. Weyher, 164 Conn. App. 734, 745,
A.3d (2016) (rejecting collateral attack because ‘‘[e]ven though the
defendant is correct that the court lacked the authority to order binding
arbitration in the dissolution judgment, absent an executed agreement by
the parties, it does not follow that the court lacked subject matter jurisdiction
when it rendered that judgment’’).
14
By way of background, we note that this court’s decision in Amodio v.
Amodio, supra, 247 Conn. 724, was—consistent with Justice Peters’ dis-
senting opinion in Broaca v. Broaca, supra, 181 Conn. 471—a marked depar-
ture from cases such as Bunche v. Bunche, supra, 180 Conn. 289, which
describe statutory restrictions on the Superior Court’s authority in dissolu-
tion actions as jurisdictional in nature. In Amodio, this court considered
‘‘the distinction between a trial court’s ‘jurisdiction’ and its ‘authority to act’
under a particular statute.’’ Amodio v. Amodio, supra, 727. In Amodio, this
court cited § 11 of the Restatement (Second) of Judgments and Monroe v.
Monroe, supra, 177 Conn. 185, for the following proposition: ‘‘Subject matter
jurisdiction involves the authority of a court to adjudicate the type of contro-
versy presented by the action before it. . . . A court does not truly lack
subject matter jurisdiction if it has competence to entertain the action before
it. . . . Once it is determined that a tribunal has authority or competence
to decide the class of cases to which the action belongs, the issue of subject
matter jurisdiction is resolved in favor of entertaining the action. . . . It is
well established that, in determining whether a court has subject matter
jurisdiction, every presumption favoring jurisdiction should be indulged.’’
(Citations omitted; internal quotation marks omitted.) Amodio v. Amodio,
supra, 727–28. The court emphasized in Amodio that, ‘‘[a]lthough related,
the court’s authority to act pursuant to a statute is different from its subject
matter jurisdiction. The power of the court to hear and determine, which
is implicit in jurisdiction, is not to be confused with the way in which that
power must be exercised in order to comply with the terms of the statute.’’
(Internal quotation marks omitted.) Id., 728; see also In re Jose B., 303
Conn. 569, 579–80, 34 A.3d 975 (2012) (‘‘the purported distinction between
a tribunal’s action [that] exceeds its statutory authority, which we have
treated as implicating the tribunal’s jurisdiction, and a tribunal’s action [that]
misconstrues its statutory authority, which we have treated as involving the
proper construction of the statute . . . has proven illusory in practice’’
[citation omitted; internal quotation marks omitted]).
Relying on these principles, and citing Justice Peters’ dissent in Broaca,
the court concluded in Amodio that: ‘‘[§] 46b-1 (4) provides the Superior
Court with plenary and general subject matter jurisdiction over legal disputes
in ‘family relations matters,’ including alimony and support. . . . [Section]
46b-86 (a) provides the trial court with continuing jurisdiction to modify
support orders. Together, therefore, these two statutes provided the trial
court with subject matter jurisdiction over the modification claim in the
present case.’’ (Footnotes omitted.) Amodio v. Amodio, supra, 247 Conn.
729–30. Thus, the court held that, although § 46b-86 (a) authorizes modifica-
tion of support orders in the absence of language in the court’s decree
precluding modification, the presence of such preclusive language did not
operate to deprive the court of subject matter jurisdiction. Id., 730–31.
15
The dissenting justice apparently disagrees with our consideration of
this conflict in the § 46b-86 (a) case law in determining whether it is ‘‘entirely
obvious’’ that Judge Resha lacked subject matter jurisdiction to modify the
property distribution. We acknowledge that the plaintiff’s brief does not
highlight, with any degree of detail, this conflict in the case law or otherwise
challenge the potential infirmity of the Appellate Court’s underlying statutory
analysis. We, however, eschew the fundamentalist adherence to the adversar-
ial process urged by the dissenting justice in favor of this court’s customary
independent check of the validity of the sources cited by the parties in their
briefs and the Appellate Court in its opinion—an inquiry that we are obligated
to undertake to ensure that the court’s opinions are consistent with current
case law and statutes. The conflict in the § 46b-86 (a) case law was readily
discernible from that independent inquiry. Accordingly, we do not view our
consideration of this conflict as introducing a new legal issue into the present
appeal, and we respectfully disagree with the dissent’s call for supplemental
briefing on this point. Cf. Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., 311 Conn. 123, 162–64, 84 A.3d 840 (2014).
16
This issue may well receive some clarification in the near future. On
May 4, 2016, this court granted a petition for certification to appeal from
the Appellate Court’s decision in Reinke v. Sing, 162 Conn. App. 674, 133
A.3d 501 (2016) (per curiam), limited to the following issue: ‘‘Did the Appel-
late Court correctly determine 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); see also Reinke v. Sing, supra, 162 Conn. App. 677–78 (reversing
trial court’s grant of motion to open three year old judgment of dissolution
and modify property distribution and alimony awards).
17
Query whether this two step process for the collateral attack on a
judgment, under which we entertain the ‘‘critical considerations’’ of Vogel
v. Vogel, supra, 178 Conn. 362–63, only after determining that it was not
‘‘entirely obvious’’ that the court that rendered the original judgment lacked
subject matter jurisdiction, is consistent with § 12 of the Restatement (Sec-
ond) of Judgments. Specifically, § 12 of the Restatement (Second) of Judg-
ments appears to be more restrictive insofar as it permits collateral attacks
on judgments only in three narrowly delineated circumstances, one of which
is akin to the ‘‘entirely obvious’’ lack of jurisdiction. See footnote 1 of this
opinion. We need not, however, consider this potential issue, because the
parties have not raised it and the plaintiff prevails under the two step process
in any event.
18
We note that § 15 of the sixth tentative draft of the Restatement (Second)
of Judgments was subsequently adopted by the American Law Institute and
is presently set forth in § 12 of the Restatement (Second) of Judgments.
19
It appears that the Broaca majority’s reliance on comment (c) was
misplaced, as that comment merely stands for the inapposite proposition
that a tribunal’s determination on subject matter jurisdiction, when expressly
raised and decided in one action, is entitled to preclusive effect in subsequent
attacks on that judgment. See Restatement (Second), Judgments § 15, com-
ment (c), p. 154 (Tent. Draft No. 6, 1979); see also footnote 18 of this opinion.
That comment simply does not address the situation such as that present
in this case, wherein the issue of subject matter jurisdiction was not raised
or decided previously.
20
We note that the defendant, consistent with her preservation arguments;
see footnote 8 of this opinion; suggests that the weighing of these factors,
to the extent they are equitable in nature, is a discretionary determination
for the trial court in the first instance. She quotes this court’s decision in
Kim v. Magnotta, 249 Conn. 94, 109, 733 A.2d 809 (1999), for the proposition
that, ‘‘in some situations, the principle of protection of the finality of judg-
ments must give way to the principle of fairness and equity,’’ and states
that ‘‘[t]he determination of what equity requires in a particular case, the
balancing of the equities, is a matter for the discretion of the trial court.’’
(Internal quotation marks omitted.) Allen v. Nissley, 184 Conn. 539, 546,
440 A.2d 231 (1981). She then cites Martin v. Martin, 99 Conn. App. 145,
156, 913 A.2d 451 (2007), for the proposition that the ‘‘trial court’s application
of the finality principle is reviewed for abuse of discretion . . . .’’ We dis-
agree. First, Martin is distinguishable because it involves review of a trial
court’s denial of a timely motion to open. See id., 149, 155–56. Instead, those
few previous cases that have stated a standard of review in considering
collateral attacks on judgments for lack of jurisdiction, including with
respect to the finality considerations, have done so under a plenary standard
of review. See Investment Associates v. Summit Associates, Inc., supra,309 Conn. 848; Urban Redevelopment Commission v. Katsetos, supra, 86
Conn. App. 240. These cases are consistent with a policy based inquiry for
permitting such collateral attacks, insofar as public policy determination is
a question of law for the court. See, e.g., Burr Road Operating Co. II, LLC
v. New England Health Care Employees Union, District 1199, 316 Conn.
618, 639, 114 A.3d 144 (2015) (arbitration award); Brown v. Soh, 280 Conn.
494, 501, 909 A.2d 43 (2006) (whether contract is void against public policy);
Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293(1997) (wrongful discharge in violation of public policy).
21
For example, courts have sustained collateral attacks on state court
dissolution judgments that present supremacy clause problems by exceeding
authority, deemed subject matter jurisdictional in nature, granted by federal
statutes. See Cline v. Cline, 90 P.3d 147, 153–54 (Alaska 2004) (sustaining
collateral attack on state court order that distributed more than 50 percent
of military retirement benefits, in excess of federal statute that ‘‘established
a limited grant of subject matter jurisdiction to state courts’’); In re Marriage
of Hulstrom, 342 Ill. App. 3d 262, 271–72, 794 N.E.2d 980 (2003) (property
division subject to collateral attack under § 12 of Restatement [Second] of
Judgments because, given federal preemption principles, it divided Social
Security benefits in violation of federal law, and thus ‘‘substantially
infringe[d] the authority of another tribunal or agency of government, in
this case, the federal government’’ [internal quotation marks omitted]); but
see Evans v. Evans, 75 Md. App. 364, 374–75, 541 A.2d 648 (1988) (rejecting
collateral attack on dissolution judgment because classification of military
disability pension as marital property, in contradiction of federal law, was
legal error rather than beyond state court’s jurisdiction to divide marital
property).
22
The defendant also makes several fairness based arguments, each of
which lacks merit in this purely jurisdictional context. First, we disagree
with her reliance on the policy of fairness and equity in marital dissolution
cases, as embodied by General Statutes § 46b-66 (a), under which ‘‘[i]n
dissolution actions, the trial court is authorized to accept an agreement
crafted by the parties and incorporate it into its order or decree if the court
finds, after inquiry of the parties, that the agreement is fair and equitable.’’
Dougan v. Dougan, 301 Conn. 361, 368, 21 A.3d 791 (2011). She contends
that Judge Resha failed to adhere to this statutory requirement prior to
modifying the judgment, and was misled by an inaccurate financial disclosure
by the plaintiff. Insofar as the jurisdictional deficiency must be apparent
from the face of the record for purposes of a collateral challenge, and we
indulge every presumption in favor of subject matter jurisdiction; see, e.g.,
Investment Associates v. Summit Associates, Inc., supra, 309 Conn. 858;
In re Shamika F., supra, 256 Conn. 406–407; even assuming that § 46b-66
(a) is jurisdictional in nature, we read Judge Resha’s canvass of the defendant
to comport with that provision. See Hirtle v. Hirtle, supra, 217 Conn. 403(‘‘On this meager record, the defendant has failed to overcome the presump-
tion that [the trial court] was reading from a written document when he
described the terms of the modified support order to which the parties had
agreed. The modified judgment of postmajority support has therefore not
been shown to be jurisdictionally defective.’’); Monroe v. Monroe, supra,177 Conn. 184–85 (The court rejected a collateral challenge to the jurisdiction
of a judge trial referee because ‘‘[t]he absence from the case file of a signed
order is by no means conclusive evidence on the face of the record that
the Superior Court judge never heard or acted upon the motion to refer the
case. The record in its totality indicates either that the Superior Court judge
overlooked signing his order of reference or that his signed order has been
inadvertently misplaced. Such oversights are not jurisdictional defects for
the purpose of collateral attack on a judgment.’’ [Emphasis omitted.]).
We also disagree with the defendant’s reliance on the policy of ‘‘ ‘full and
frank disclosure’ ’’ in dissolution cases; see, e.g., Reville v. Reville, 312 Conn.
428, 441–42, 93 A.3d 1076 (2014); which she contends that the plaintiff
breached in 2001 and 2007 by disclosing only the value of his contributions
to the plan fund, rather than the actuarial value of his pension based on
the $43,992.80 benefit that he has received since retiring. In our view, this
simply is a restatement of her fraud claim, which the trial court rejected in
denying her first motion to vacate. See footnote 6 of this opinion.