Opinion
No. FA 98-0416301
June 27, 2001
MEMORANDUM OF DECISION RE MOTION TO REOPEN, #101 CT Page 8763
The plaintiff has moved to reopen this action for custody, which the court dismissed on June 18, 1999, for failure to prosecute with diligence under Practice Book section 14-3 pursuant to the court dormancy program. The plaintiff claims that section 46b-56 of the general statutes grants the court continuing jurisdiction over all dismissed custody actions, For the foregoing reasons, the court denies the motion to reopen.
Section 14-3, captioned "Dismissal for Lack of Diligence," provides as follows:
(a) If a party shall fail to prosecute an action with reasonable diligence, the judicial authority may, after hearing, on motion by any party to the action pursuant to Section 11-1, or on its own motion, render a judgment dismissing the action with costs. At least two weeks' notice shall be required except in cases appearing on an assignment list for final adjudication. Judgment files shall not be drawn except where an appeal is taken or where any party so requests.
(b) If a case is printed on a dormancy calendar pursuant to the dormancy program administered under the direction of the chief court administrator, and a motion for default for failure to plead is filed pursuant to Section 10-18, only those papers which close the pleadings by joining issues, or raise a special defense, may be filed by any party, unless the judicial authority otherwise orders.
Section 46b-56 (a) provides that "[i]n any controversy before the Superior Court as to the custody or care of minor children, and at any time after the return day of any complaint under section 46b-45, the court may at any time make or modify any proper order regarding the . . . care, custody and visitation if it has jurisdiction under the provisions of chapter 815o." Chapter 815o contained the now-repealed provisions of the Uniform Child Custody Jurisdiction Act, which effective July 1, 2000, the legislature supplanted with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), General Statutes §§ 46b-115 et seq. Under § 46b-115k (a) of the new UCCJEA, a court of this state has jurisdiction to make an "initial custody determination" only if one of six criteria set forth in that statute are met. Section 46b-115k (b) provides that "[s]ubsection (a) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state." Under the plaintiffs theory, a dismissed custody action would trump those jurisdictional requirements for entering an initial custody determination. The plaintiff's position would allow a party to bring a custody action in Connecticut, not pursue that action and suffer dismissal for failure to pursue the case with diligence or pursuant to a dormancy program, and yet later, years afterward, when none of the six jurisdictional prerequisites of the UCCJEA was in effect, have a court reinstate that action and enter initial custody orders. Such a result is inconsistent with the limited grant of jurisdiction to make initial custody determinations provided by the UCCJEA.
Section 46b-115k provides as follows: (a) Except as otherwise provided in section 46b-115n, a court of this state has jurisdiction to make an initial child custody determination if (1) This state is the home state of the child on the date of the commencement of the child custody proceeding; (2) This state was the home state of the child within six months of the commencement of the child custody proceeding, the child is absent from the state, and a parent or a person acting as a parent continues to reside in this state; (3) A court of another state does not have jurisdiction under subdivisions (1) or (2) of this subsection, the child and at least one parent or person acting as a parent have a significant connection with this state other than mere physical presence, and there is substantial evidence available in this state concerning the child's care, protection, training and personal relationships; (4) A court of another state which is the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under a provision substantially similar to section 46b-115q or section 46b-115r, the child and at least one parent or person acting as a parent have a significant connection with this state other than mere physical presence, and there is substantial evidence available in this state concerning the child's care, protection, training and personal relationships; (5) All courts having jurisdiction under subdivisions (1) to (4), inclusive, of this subsection have declined jurisdiction on the ground that a court of this state is the more appropriate forum to determine custody under a provision substantially similar to section 46b-115q or section 46b-115r; or (6) No court of any other state would have jurisdiction under subdivisions (1) to (5), inclusive, of this subsection.
(b) Subsection (a) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
The plaintiff misreads the effect of § 46b-56. This court does not read the statute as extending its jurisdiction over dismissed custody actions, and no case of our appellate courts so holds. Instead, the continuing jurisdiction bestowed by § 46b-56 applies to custody decrees setting forth the terms for the care, custody or visitation or a minor child entered as a judgment by the courts of this state. Cookson v. Cookson, 201 Conn. 229, 236, 514 A.2d 323 (1986); Fiddelman v. Redmon, 37 Conn. App. 397, 401, 656 A.2d 234 (1995). Such a reading of the statute is consistent with the language and intent of the UCCJEA, which permits initial custody determinations only under defined circumstances and then vests continuing jurisdiction only where the court has initially made a child custody determination. General Statutes § 46b-115l (a).
Dismissal of a case from the court's docket under the dormancy program is a final judgment. Jenkins v. Ellis, 169 Conn. 154, 160, 362 A.2d 831 (1975); Lake Garda Co. v. Lake Garda Improvement Assn., 156 Conn. 61, 238 A.2d 393 (1968). "Absent waiver, consent, submission to jurisdiction or statutory exception, the court is without subject matter jurisdiction to modify or correct a final judgment after the four month period for opening or setting aside a civil judgment has passed pursuant to General Statutes § 52-212a." Fiddelman v. Redmon, 37 Conn. App. 397, 401, 656 A.2d 234 (1995). The plaintiffs position would have the effect of rendering nugatory any dismissal of a custody action.
Section 52-212a provides as follows: "Unless 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. The continuing jurisdiction conferred on the court in preadoptive proceedings pursuant to subsection (o) of section 17a-112 does not confer continuing jurisdiction on the court for purposes of reopening a judgment terminating parental rights. The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court, provided the filing of an amended petition for termination of parental rights does not constitute a waiver of the provisions of this section or a submission to the jurisdiction of the court to reopen a judgment terminating parental rights."
Section 17-4 (a) of the Practice Book, "Setting Aside or Opening Judgments," similarly provides as follows: "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 flied 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."
More than four months have elapsed since entry of the judgment of dismissal here. The plaintiff does not claim the benefit any of recognized the exceptions permitting a court to exercise "substantive authority to adjudicate the merits" of a case; Kim v. Magnotta, 249 Conn. 94, 104, 733 A.2d 809 (1999); after that period. The court therefore concludes that the constraints of General Statutes § 52a-212a, [ 52-212a], and Practice Book § 17-4 require it to decline to exercise such substantive authority to adjudicate this case here. Accordingly, the motion to reopen is denied.
In Kim v. Magnotta, 249 Conn. 94, 733 A.2d 809 (1999), the Supreme Court added an unfair trade practice to the list of other exceptions such as fraud, mutual mistake, or duress previously recognized as authorizing trial courts to reopen judgments past the four month period; See e.g., Jenks v. Jenks, 232 Conn. 750, 657 A.2d 1107 1995) for discussion of those earlier recognized exceptions.
SO ORDERED.
BY THE COURT
___________________________ STEPHEN F. FRAZZINI JUDGE OF THE SUPERIOR COURT