Marque Setevage v. John A. Setevage (2013)

Carbonneau, John L., J. Opinion TitleMEMORANDUM OF DECISION RE POSTJUDGMENT MODIFICATION These parties divorced on November 6, 2012 when the court, Vasington, J.T.R., adopted their Marital Settlement Agreement (Agreement) as the judgment of the court.   Post-judgment issues arose over defendant's non-payment of a sum of money to plaintiff and an unaccounted-for retirement asset of plaintiff.   The parties returned to court pursuant to defendant's Motion for Modification, Post–Judgment filed August 28, 2013 (# 122).   Plaintiff objected (# 123) and filed a Motion for Contempt on September 13, 2013 (# 124).   Factual Findings The parties through counsel agreed on the facts, and these are found by a preponderance of the evidence.   The court took judicial notice of the court file.   The Agreement called for plaintiff to quitclaim her interest in the marital home to defendant in return for his payment of $110,000.00 within 90 days of judgment.   The Agreement did not specify how or where defendant was to get this sum.   There was a mechanism for “totaling and equalizing” the value of three specified retirement assets of the parties:  two of hers and one of his.   Notably, the Agreement goes on to state in Paragraph 4.1 “Except as otherwise provided in this Agreement the parties have divided their personal property to their mutual satisfaction, and each party shall retain those items in his or her possession free from any claim by the other.”   Other clauses in the Agreement stated that each party's Financial Affidavit was accurate;  that they knew of no other assets or income and that each had a full understanding of the financial condition of the other.   After the entry of the judgment the parties realized plaintiff actually had another pension.   There was no allegation that she purposely concealed this pension.   The parties agree that it was simply forgotten by both of them—a mutual mistake.   On September 30, 2013 when in court for their motions, the parties negotiated a stipulation that altered the method of payment of defendant's obligation but not the total sum.   He would pay half the original amount, and the other half would come from his remaining share of his retirement account after the “equalization” contemplated by the Agreement.   He also agreed to pay a portion of plaintiff's attorneys fees for her enforcement motion.   The stipulation went on to add the forgotten retirement account to the original division of assets previously agreed upon in the Agreement.   The court initially balked at the stipulation, thinking that it was without jurisdiction to alter a property settlement.   The court asked the parties to brief the matter and allowed argument thereafter.   Applicable Law and Discussion—Modification “The court's judgment in an action for dissolution of a marriage is final and binding upon the parties, where no appeal is taken therefrom, unless and to the extent that statutes, the common law or rules of court permit the setting aside or modification of that judgment.”   Bunche v. Bunche, 180 Conn. 285, 287–88, 429 A.2d 874 (1980).   General Statutes § 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 or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court ․ This section shall not apply to [property] assignments under section 46b–81 ․” The statute, therefore, “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 General Statutes § 46b–81.”   Bunche v. Bunche, supra, 289.   The Appellate Court recently discussed the difference between an impermissible modification of a property settlement versus the effectuation of a court judgment.   O'Halpin v. O'Halpin, 144 Conn.App. 671 (2013).  “A modification is [a] change;  an alteration or amendment which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact ․ In contrast, an order effectuating an existing judgment allows the court to protect the integrity of its original ruling by ensuring the parties' timely compliance therewith.   Although the court does not have the authority to modify a property assignment, a court, after distributing property, which includes assigning the debts and liabilities of the parties, does have the authority to issue postjudgment orders effectuating its judgment ․ Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged ․ Thus, if the ․ motion ․ can fairly be construed as seeking an effectuation of the judgment rather than a modification of the terms of the property settlement, this court must favor that interpretation.”  (Citations omitted;  internal quotation marks omitted.)   Fewtrell v. Fewtrell, 87 Conn.App. 526, 531–32, 865 A.2d 1240 (2005).  “[W]e have recognized that it is within the equitable powers of the trial court to fashion whatever orders [are] required to protect the integrity of [its original] judgment.”  (Internal quotation marks omitted.)   Buehler v. Buehler, 138 Conn.App. 63, 76, 50 A.3d 372 (2012).   The judgment in the instant matter never specified how defendant was to make payment to plaintiff;  only how much and when.   Adding this detail now leaves “the general purpose and effect of the subject matter ․ intact.”   O'Halpin v. O'Halpin, supra, 667.   The court concludes that inclusion in the judgment of the manner in which defendant pays $110,000.00 to plaintiff is not an impermissible modification of the original judgment.   It is rather an effectuation of the court's judgment in no way prohibited by Connecticut law.   The court, however, views the other change the parties seek quite differently.   The parties' Agreement clearly lists the retirement assets to be divided.   In it, each party acknowledges full and fair disclosure of the other's assets.   They claim to have divided all personal property to their mutual satisfaction except as provided in the Agreement and that each would retain all items in their possession free from any claim of the other.   This language certainly includes plaintiff's forgotten pension account.   Now seeking to include this asset after judgment entered “introduces new elements into the details” of the judgment.   Id. The court lacks jurisdiction to modify the parties' original property settlement by adding the forgotten pension as sought by the parties under their initial modification analysis.   Applicable Law and Discussion—Opening the Judgment The parties' lawyers, working together, have suggested an alternative analysis by which the court can properly adopt their clients' stipulation about the forgotten pension.   They urge the court to construe their pleadings as a Motion to Open the Judgment under Practice Book Section 17–4.   The court agrees.   Sec. 17–4.   Setting Aside or Opening Judgments (a) Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any 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 succeeding the date on which notice was sent.   The parties may waive the provisions of this subsection or otherwise submit to the jurisdiction of the court. (b) Upon the filing of a motion to open or set aside a civil judgment, except a judgment in a juvenile matter, the moving party shall pay to the clerk the filing fee prescribed by statute unless such fee has been waived by the judicial authority.   This case is certainly a civil action.   It is more than four months past the time of the judgment, but the parties' stipulation waives the 17–4 provisions, and each submits to the jurisdiction of the court.   This was not so in Bunche, supra, where the Supreme Court declined to apply P.B. 17–4 because “the parties did not submit themselves to the jurisdiction of the court by waiver, consent or otherwise.”   Id., 288.   The court is mindful that completely opening a judgment could affect the date of the dissolution and cause problems with tax filings, the calculation of a term of alimony, insurance benefits and remarriages.   In a slightly different context, the Supreme Court recently acknowledged these challenges in a case on remand.   Tanzman v. Meurer, 309 Conn. 105, fn.7 (2013).   Fortunately, opening a judgment by consent is rare because adversarial parties seldom agree to the level seen in this case.   The Tanzman court implies and this court infers that opening a judgment can be “targeted” and specific.   Thankfully, the potential problems noted above are not present in this case.   The court opens “Pandora's Box” only a tiny crack to address only the issues raised by the parties in their respective motions and objections.   Numbers 122, 123 and 124.   ORDERS 1. The court approves the parties' Agreement dated September 30, 2013 finding that it is a fair, reasonable and equitable resolution to the issues raised by their respective motions and objections.   Numbers 122, 123 and 124. 2. The court waives the fee normally assessed for a Motion to Open because it is equitable to do so under the unique circumstances of this case. 3. The judgment in this case remains in full force and effect unchanged and unaffected except as explicitly ordered by this court.   SO ORDERED.   Carbonneau, J.