Opinion
No. FA97-0137735S
January 21, 2009
MEMORANDUM OF DECISION RE MOTION FOR MODIFICATION #114 AND MOTION TO DISMISS #121
FACTS
The plaintiff, James J. Flaherty, Jr., and the defendant, Ellen M. Flaherty, were married on June 6, 1987. Two children were born issue of this marriage: James Christopher Flaherty, who was born on May 31, 1990, and Sean Patrick Flaherty, who was born on August 12, 1992. A judgment dissolving the parties' marriage was entered on September 3, 1997. According to the judgment, the court, Doherty, J., found the parties' written and signed separation agreement, also dated September 3, 1997, to be fair and equitable. As such, the agreement was ordered to be incorporated by reference into the judgment in its entirety and became part of the court file. In accordance with the separation agreement, the judgment provided that the parties shall be responsible for post-secondary school education and all other extraordinary expenses for the children as noted in the agreement of the parties.
Article 4.6 of the parties' separation agreement provides: "The Husband agrees to contribute towards the education expenses of each child in the event that any child desires to attend post-secondary school and is accepted at any post-secondary school. Each party shall fully cooperate in seeking other sources of financial assistance for the education expenses, including scholarships, student loans, and the like which may be available in order to assist the Husband in discharging this undertaking."
On September 18, 2008, the defendant filed a motion for modification postjudgment (#114) requesting the court to enter an equitable order with respect to the plaintiff's appropriate contribution towards post-secondary school expenses. The defendant argues that James Christopher Flaherty continues to be, and has for some time, been enrolled in a course of post-secondary school education and although the plaintiff has contributed to the aforesaid post-secondary education, he has not contributed an equitable amount based upon his income and assets. On December 9, 2008, the plaintiff filed a motion to dismiss the defendant's motion for modification postjudgment (#121) on the ground that the court lacks jurisdiction to modify the parties' separation agreement. The defendant filed her objection to the plaintiff's motion to dismiss postjudgment (#122) on December 17, 2008. Argument was heard by the court on January 20, 2009.
In her memorandum of law in opposition, the defendant also argued in support of her motion for interpretation or clarification postjudgment (#124) if the court were to find the agreement non-modifiable. The court, however, will not address this argument at this time.
DISCUSSION CT Page 1814
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 205, 210-11, 897 A.2d 71 (2006). A "motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . ." Practice Book § 25-13. "[I]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time . . . 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 . . ." (Internal quotation marks omitted.) Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).
"If a court lacks subject matter jurisdiction to hear and determine cases of the general class to which the proceedings in question belong, it is axiomatic that a court also lacks the authority to enter orders pursuant to such proceedings." (Internal quotation marks omitted.) Nationwide Mutual Ins. Co. v. Allen, 83 Conn.App. 526, 531, 850 A.2d 1047, cert. denied, 271 Conn. 907, 859 A.2d 562 (2004). "Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839, n. 6, 826 A.2d 1102 (2003).
In the present action, the plaintiff moves to dismiss the defendant's motion for modification postjudgment on the basis that the court lacks jurisdiction to consider it. In support of his claim, the plaintiff refers the court to Article 14.9 of the parties' separation agreement which provides: "This Agreement shall not be modified or altered except by an instrument signed and acknowledge by the Husband and Wife." The plaintiff argues that absent his authorized signature to modify, the court lacks the authority to modify the separation agreement and the defendant's motion should be dismissed. The defendant counters, contending that the court has jurisdiction over this matter and that the separation agreement as directed to the plaintiff's contribution to their child's post-secondary educational expenses constitutes a modifiable order.
It is apparent that the plaintiff has confused the issue of subject matter jurisdiction with the court's authority to act. In Amodio v. Amodio, 247 Conn. 724, 724 A.2d 1084 (1999), the Supreme Court reviewed the distinction between a trial court's jurisdiction and its authority to act under a particular statute. "Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy 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 . . ." (Citations omitted; internal quotation marks omitted.) Id., 727. "Although 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.
The Appellate Court in O'Bryan v. O'Bryan, 67 Conn.App. 51, 787 A.2d 15 (2001), aff'd, 262 Conn. 355, 813 A.2d 1001 (2003) (per curium) also noted the distinction between a trial court's jurisdiction and its authority to act under a particular statute. In determining that the court has subject matter jurisdiction over motions for post-majority child support modification, the court relied on General Statutes §§ 46b-1 and 46b-66, just as the defendant in the present case asks this court to do. In O'Bryan, the court held that "General Statutes § 46b-1 provides the Superior Court with plenary and general subject matter jurisdiction over legal disputes in `family relations matters,' including custody and support. Section 46b-66 provides the court with jurisdiction to incorporate a separation agreement into its order or decree if on review it finds the agreement fair and equitable under the circumstances. Section 46b-66 further provides that `[i]f the agreement is in writing and provides for the care, education, maintenance or support of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order and shall be enforceable to the same extent as any other provision of such order or decree . . .' (Emphasis added.)." Id., 54. See also Fusco v. Fusco, 266 Conn. 649, 835 A.2d 6 (2003).
Consistent with the aforementioned reasoning, the court finds that it has subject matter jurisdiction over the defendant's motion for modification postjudgment and accordingly denies the plaintiff's motion to dismiss. Having denied the plaintiff's motion to dismiss, the court will now address the defendant's motion for modification postjudgment.
"Under the law governing pre-2002 post-majority educational support agreements, such a provision could only be modified when a written agreement specifically allowed for such. See Fusco v. Fusco, supra [ 266 Conn. 654 ] (`Connecticut courts have repeatedly held that, pursuant to § 46b-66, a prerequisite to a court's modification of post-majority support is a written agreement providing for modification by the court, whether it is contained in a separation agreement that is then incorporated into the judgment or exists as a separate agreement') (internal quotation marks omitted); Miner v. Miner, [ 48 Conn.App. 409, 418, 709 A.3d 605 (1998)] (trial court had no authority `to modify the written agreement incorporated in the dissolution decree as it pertains to post-majority support and education without a written agreement signed by both parties giving the court the authority to modify the agreement or by the parties themselves modifying the agreement'); Aliberti v. Aliberti, [Superior Court, judicial district of New Britain, Docket No. FA-98 0489052 (June 27, 2006, Graham, J.) (41 Conn. L. Rptr. 578)] (`This court's authority to act with regard to the requested modification is solely dependent upon whether the parties have agreed, in writing, to allow modification of the separation agreement by the court')." Heise v. D'Amico, Superior Court, judicial district of Tolland, Docket No. FA 98 0067946 (Oct. 16, 2007, Schuman, J.) (44 Conn. L. Rptr. 223 n. 1).
"Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity and words do not become ambiguous simply because lawyers or laymen contend for different meanings." Barnard v. Barnard, 214 Conn. 99, 110, 570 A.2d 690 (1990). Article 14.9 of the parties' separation agreement clearly provides: "This Agreement shall not be modified or altered except by an instrument signed and acknowledge by the Husband and Wife." Absent a signed acknowledgment from the plaintiff and defendant this court lacks the authority to modify the separation agreement. The defendant's motion for modification postjudgment is accordingly denied.
CONCLUSION
For the foregoing reasons, both the plaintiff's motion to dismiss (#121) and the defendant's motion for modification postjudgment (#114) are hereby denied. Although the court has the jurisdiction over the separation agreement, it lacks the authority to modify it.