Leopold Sans v. Beata Nowicka–Sans (2011)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO OPEN JUDGMENT OF DISSOLUTION

The Plaintiff, Leopold Sans, filed for a dissolution of his marriage to the Defendant, Beata Nowicka–Sans, on February 28, 2011.   Marshal Abraham Glassman served the Defendant at her abode on February 23, 2011.   He noted in his return parenthetically “Daughter went to get defendant.   Defendant locked self in bathroom and refused to come out.”

The parties testified before the court over two days, and their accounts of Defendant's knowledge of the existence of a dissolution action could not be more different.   Plaintiff claims that Defendant was fully aware of the proceedings.   Defendant asserts that Plaintiff misled her into believing that he had withdrawn the action or at least was not going to pursue it.

She made much of the normalcy of all aspects of the relationship and family life after the initial confrontation over the papers.   He adamantly testified that he “kept the peace,” placating the Defendant to avoid her domineering and controlling ways.   He feared that she would delay and drag out the dissolution process, making life for himself, their daughter and his stepson miserable.

This much is crystal clear from the court file and Plaintiff's counsel's representations to the court.   The Family Court Caseflow Office assigned a date for an uncontested dissolution on July 14, 2011.   Realizing that they lacked necessary financial information, Plaintiff and his counsel postponed this date into October.   Counsel scheduled a deposition of the Defendant for July. The Defendant ignored in-hand service of this event, and Plaintiff's attorney overcame this obstacle by subpoenaing the financial information sought directly from Defendant's employer.   She accomplished this far sooner than originally thought possible and moved the date for the final hearing on the dissolution to September 2, 2011, the Friday before the Labor Day weekend.

On that day the court dissolved the marriage and awarded sole custody of the parties' daughter to the Plaintiff along with weekly child support of $244.00 by wage withholding and the child's tax exemption.   He sought alimony unlimited by term but settled for ten years after the court objected.   He kept all his retirement benefits, bank accounts and stocks.   He received the entire marital residence—estimated to have equity of $100,000.00.

The Plaintiff did not tell the Defendant the result of the September hearing until after the Labor Day weekend.   In fact he waited until September 15, 2011 when he told the Defendant and her son that they must vacate the marital home in six days.   The Defendant did not appear in the divorce case until September 21, 2011, nineteen days after the judgment, when her current lawyer filed the Motion to Reopen Judgment now before the court.

The court finds from the Plaintiff's testimony and the representations of his lawyer that the Defendant had no notice of any of the three different dates for the divorce hearing, particularly the day on which they proceeded.   Based on her earlier obstinacy, they concluded that she had chosen an “ostrich strategy” not to participate and that further efforts to involve her would be futile.

“It is well settled that a civil judgment of the Superior Court may be opened if a motion to open or set aside is filed within four months of the issuance of judgment ․ A motion to open a judgment is governed by General Statutes § 52–212a and Practice Book § 17–4.  Section 52–212a provides in relevant part:  [u]nless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, 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 ․” Practice Book § 17–4 states essentially the same rule ․ Mongillo v. Mongillo, 2010 Conn. Super LEXIS 738.  “The provisions of [this law] do not operate to strip the court of its jurisdiction over its judgments, but merely operate to limit the time period in which a court may exercise its substantive authority to adjudicate the merits of the case.”  East Haven Builders Supply, Inc. v. Fanton, 80 Conn.App. 734, 741;  837 A.2d 866 (2004).

“Courts have an inherent power to open, correct and modify judgments ․ A civil judgment of the Superior Court may be opened if a motion to open or set aside is filed within four months of the issuance of judgment.”  Martin v. Martin, 99 Conn.App. 145, 155–56, 913 A.2d 451 (2007).¹

Neither Practice Book § 17–4 nor § 52–212a specify the grounds for opening a judgment.  “Because of the important considerations for finality of judgments, however, a judgment should not be opened without a strong and compelling reason ․ The motion should be granted only when there appears cause for which the court acting reasonably would feel bound in duty to do so.”  Id., 156.  “It is well recognized that [t]he opening ․ of a judgment ․ is at the legal discretion of the court ․ [I]t is not to be granted readily, nor without strong reasons ․” Breen v. Breen, 18 Conn.App. 166, 172;  cert. denied, 212 Conn. 801 (1989).

The due process right of a person to be aware of a legal action pending against him or her is fundamental and axiomatic.  Rushin v. Spain, 464 U.S. 114 (1983).   In family matters the Case Management Agreement (JD–FM 163) specifically alerts a Plaintiff of the obligation to notify a non-appearing Defendant of the date of a dissolution hearing.   All other rights are meaningless if one doesn't know to exercise them so the lack of proper, required notice is certainly a “strong reason.”   Mr. Sans failed to provide adequate notice of the dissolution hearing date to his wife, perhaps taking great advantage of her non-appearance given the orders he induced the court to award.   The extent of this advantage can only be ascertained when the Defendant is given a real opportunity to contest his claims and assertions.

For these reasons, the Defendant's Motion to Reopen Judgment of Dissolution of Marriage dated September 20, 2011 is granted.   Counsel are directed to file a new Case Management Agreement with the court immediately.

SO ORDERED.

BY THE COURT,

Carbonneau, J.

FOOTNOTES

FN1. Because the Defendant filed her Motion to Open within four months of the judgment, this is not a case in which the moving party must establish mutual mistake, see Fitzsimmons v. Fitzsimmons, 116 Conn.App. 449 (2009);  duress, see Kulzer v. Kulzer, 1999 Conn.Super. LEXIS 1302 or fraud, see Spilke v. Spilke, 116 Conn.App. 590, 976 A.2d 69 (2009)..  FN1. Because the Defendant filed her Motion to Open within four months of the judgment, this is not a case in which the moving party must establish mutual mistake, see Fitzsimmons v. Fitzsimmons, 116 Conn.App. 449 (2009);  duress, see Kulzer v. Kulzer, 1999 Conn.Super. LEXIS 1302 or fraud, see Spilke v. Spilke, 116 Conn.App. 590, 976 A.2d 69 (2009).

Carbonneau, John L., J.