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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, forthe appellee (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 judgment 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 portion 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 obvious’’ that, under General Statutes § 46b-81 (a) and General Statutes (Supp. 2016) § 46b-86 (a),4

Judge Resha

lacked subject matterjurisdiction to modify the pension

division in the prior judgment of dissolution. We conclude that: (1) given a conflict in the case law on point

and the Superior Court’s plenary jurisdiction over family 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. Accordingly, 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 alimony 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 discussion, the defendant informed the plaintiff that she

desired to finish her education leading to a teaching

degree, higherincome and [her own] pension but would

need the alimony payments in orderto do so. The defendant 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 cohabitation. 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 accordance with [the] stipulation . . . to have the full pension 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 plaintiff 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, pursuant 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 November 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 matter 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 memorandum 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 parties. 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 provisions of this section or otherwise submit to the jurisdiction 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 stipulation, 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 postdissolution 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 plaintiff’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 dividing the plaintiff’s pension benefits equally between the

parties, [Judge Resha] acted outside of [his] jurisdictional 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 dissolution 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 Commission 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 jurisdiction to enter postdissolution orders modifying property 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

otherrespects.’’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 ‘‘moderated’’ the ‘‘traditional view’’ that ‘‘subject matter jurisdiction 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 principles of finality of judgments; see, e.g., Urban Redevelopment 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 distribution 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 plaintiff’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 example, 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 modify 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 continuing jurisdiction to modify such distributions. She

emphasizes that the parties cannot confer such jurisdiction 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-represented, she did not actually litigate the issue of jurisdiction 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 plaintiff, 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 considerations preclude a collateral attack on Judge

Resha’s modification of the judgment.

The issues presented in this certified appeal ‘‘[implicate] the issue of subject matter jurisdiction. As a preliminary 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 proceedings, including on appeal.’’ (Citation omitted; internal

quotation marks omitted.) Keller v. Beckenstein, 305

Conn. 523, 531–32, 46 A.3d 102 (2012); see also Investment 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 collateral attacks on their validity are disfavored.’’ (Citations 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 judgments, 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

forthat 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 Shamika 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 judgment 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 opportunity 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 Judgments reflects the belief of the American Law Institute,

shared by this court, that ‘‘giv[ing] an expansive interpretation 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 vitality 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 ‘‘fundamental mistake’’ that is ‘‘so plainly beyond the court’s jurisdiction 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 jurisdiction.’’ 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 ‘‘limited’’); Broaca v. Broaca, supra, 181 Conn. 473 (Peters,

J., dissenting) (‘‘I would emphasize the truly exceptional nature of the ‘plainly beyond’ cases’’ [emphasis 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 courtreasoned that,

‘‘[a]t the time judgment was rendered,’’ the governing

statutes gave the Superior Court ‘‘exclusive jurisdiction’’ over dissolution cases, and authorized property

distribution and alimony payments. (Internal quotation

marks omitted.) Id., 363. Accordingly, this court determined 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 farfrom 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 children of Connecticut’’ [internal quotation marks omitted]); Meinket v. Levinson, supra, 193 Conn. 115

(rejecting collateral attack on default judgment, rendered 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 arguably jurisdictional’’); accord Torrington v. ZoningCommission, 261 Conn. 759, 769, 806 A.2d 1020 (2002)

(zoning commission’s lack of jurisdiction to waive regulations and enter into court approved settlement was

not ‘‘entirely obvious’’ given that it generally ‘‘is empowered 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 policies 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 collateral attack cases under, for example, Vogel v. Vogel,

supra, 178 Conn. 361–62, and contains only one conclusory statement, in a footnote, that the trial court’s support 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 jurisdiction 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

ofthe SuperiorCourt’s subject matterjurisdiction 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 judgment, they do not by themselves render any lack of

subject matter jurisdiction ‘‘entirely obvious’’ for purposes 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 recognized, 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 conflict 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 existence 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 deciding,16 that the restriction of postjudgment modification

of property distributions in § 46b-86 (a) is in fact jurisdictional 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 obvious’’ that Judge Resha lacked subject matter jurisdiction 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 represents a misreading of comment (c).19 Indeed, the analysis in Broaca has been undercut by Meinket v. Levinson,

supra, 193Conn. 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 original 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 jurisdictional question was expressly litigated in the original
action’’); 1 Restatement(Second), Judgments § 12, illustration (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 employment but does not dispute the jurisdiction of the tribunal. 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 implications.’’ 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 acknowledged 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 plaintiff’s forbearance on moving to terminate the alimony

payments in light of her cohabitation.

Further, the defendant’s personal lack of legal knowledge does not equate to a lack of opportunity to litigate

jurisdiction that would sustain the extraordinary measure 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 particularly 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 defendant] 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 opportunity 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 constitute an abuse of authority, and the desirability of the

finality of judgments.’’20 (Internal quotation marks omitted.) 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 jurisdictional 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 defendant’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 jurisdiction and defendant did not argue timeliness). Nevertheless, 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 Pharmaceutical 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 factorin 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 public policy support for her collateral challenge. Specifically, 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 interwoven. The rendering of a judgment in a complicated

dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.’’ [Internal 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 collateral 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 compliance 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 defendant’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., Keller 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 dissolution 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 defendant’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 dissolution 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 opportunity to fully litigate the question of jurisdiction in the

original action, but, by stipulation, agreed withoutreservation to the terms of the orders which he now challenges’’); Urban Redevelopment Commission v.

Katsetos, supra, 86 Conn. App. 244 (rejecting collateral

attack on jurisdiction of court accepting sale of defendant’s property because ‘‘[t]he plaintiff had the opportunity 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 judgment because, inter alia, he ‘‘by stipulation, agreed without reservation to the terms of the orders which he

now challenges’’ [internal quotation marks omitted]).

Given that Judge Resha’s modification to the dissolution judgment was the product of an informed stipulation 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 matters, we conclude that there are no strong policy reasons to allow an otherwise disfavored collateral attack

on the modified judgment. We therefore conclude that

theAppellate Courtimproperly 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 conclusion 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 pertaining 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 denying 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, ZARELLA, 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 precludes 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 authority; 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 substantially 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 assignments 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 § 46b81 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 attorney’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 Worldwide, 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 notreach the defendant’s preservation 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 petition, nor outright rejection of all arguments made in opposition, including

those having to do with preservation. Cf. Clarke v. Commissioner of Correction, 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 arguments. 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 thatthe 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 insurance 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 property of the parties, pursuant to § 46b-81, must be exercised, if at all, at the

time that it renders judgment dissolving the marriage. . . . [Section] 46b86 (a) deprives the Superior Court of continuing jurisdiction overthat 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 modify 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 jurisdiction 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 jurisdiction 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 Bunche 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 matterjurisdiction

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’ dissenting opinion in Broaca v. Broaca, supra, 181 Conn. 471—a marked departure from cases such as Bunche v. Bunche, supra, 180 Conn. 289, which

describe statutory restrictions on the Superior Court’s authority in dissolution 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 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. . . . 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 matterjurisdiction overlegal 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 modification 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 adversarial 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 AppellateCourt 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 Appellate 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 (Second) of Judgments. Specifically, § 12 of the Restatement (Second) of Judgments 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 notraised it and the plaintiff prevails underthe 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 matterjurisdiction, when expressly

raised and decided in one action, is entitled to preclusive effect in subsequent

attacks on that judgment. See Restatement (Second), Judgments § 15, comment (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 judgments 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), forthe proposition that the ‘‘trial court’s application

of the finality principle is reviewed for abuse of discretion . . . .’’ We disagree. 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 presumption 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 courtrejected 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.