The plaintiff, Nadine O. Monroe, and the defendant, Floyd R. Monroe, were married in 1956 and divorced in 1973. Several years later the plaintiff initiated the present proceedings to vacate the judgment of divorce. The plaintiff filed two motions, one in January, 1978, and another in March, 1978, claiming that the state referee who rendered the decree of dissolution of her marriage lacked the jurisdiction to do so. In response to each motion, the defendant countered with a motion to erase because the plaintiff's motions were not filed within the term of court in which the judgment of divorce had been rendered, and were hence untimely. The trial court denied the motions of the plaintiff and granted the motions of the defendant. The plaintiff thereupon appealed each denial to this court, and we consolidated the two appeals.
The plaintiff's motions to open the judgment
As a preliminary matter, in view of the defendant's continued insistence that these claims were not properly before the trial court, and are not now properly before this court, we should clarify our own jurisdiction to hear this case. The defendant argues that the orders below are not appealable (1) because they do not constitute final judgments and (2) because they are untimely, since they were not filed within the term of the court at which the judgment of divorce was rendered. We find neither of these arguments persuasive.
This court has had numerous occasions to define finality of judgments. A recent comprehensive statement identifies a variety of criteria: "One test is whether the order or action terminates a separate and distinct proceeding. Dewart v. Northeastern Gas Transmission Co., 139 Conn. 512, 514, 95 A.2d 381. Another test lies in the effect of an order `as concluding the rights of some or all of the parties'; Banca Commerciale Italiana Trust Co. v. Westchester Artistic Works, Inc., 108 Conn. 304, 307, 142 A. 838; Gores v. Rosenthal, 148 Conn. 218, 221, 169 A.2d 639; and finally, if the rights of the parties are concluded so that further proceedings cannot affect them, then the judgment is final. State v. Fahey, 146 Conn. 55, 57, 147 A.2d 476; Watson v. Howard, 138 Conn. 464, 467, 86 A.2d 67; Northeastern Gas Transmission Co. v. Brush, 138 Conn. 370, 373, 84 A.2d 681." Prevedini v. Mobil Oil Corporation
It is equally clear that these appeals are not precluded by the common-law rule, recognized in Cichy v. Kostyk, 143 Conn. 688, 690, 125 A.2d 483 (1956), that ordinarily limits the power of a court to open, modify, or vacate its judgments "to the term of court at which the original judgment was rendered." The Cichy rule limits the opening of judgments that are arguably improper or erroneous. Significantly, Cichy itself permitted belated exercise of jurisdiction with the consent of the parties. Cichy does not address the timeliness of attacks on judgments that are alleged to be not merely voidable but void. The plaintiff's motions challenge the power of the tribunal that adjudicated her case to hear and to determine the cause of action presented to it. Brown v. Cato, 147 Conn. 418, 422, 162 A.2d 175 (1960). A challenge to subject matter jurisdiction, an allegation that a judgment is void, "can be raised at any time ... and the lack thereof cannot be waived." LaBow v. LaBow, 171 Conn. 433, 440, 370 A.2d 990 (1976); Connecticut Steel Co. v. National Amusements, Inc., 166 Conn. 255, 263, 348 A.2d 658 (1974); Maltbie, Conn. App. Proc. § 45.
The plaintiff's appeals from the orders of the trial court are therefore both jurisdictionally appropriate and timely. This conclusion does not mean that collateral attacks on judgments are favored. On the contrary, every presumption favors the jurisdiction of a court; Six Carpenters, Inc. v. Beach Carpenters Corporation, 172 Conn. 1, 6, 372 A.2d 123 (1976);
The more wide-ranging of the plaintiff's claims challenges the constitutionality of § 52-434 of the General Statutes.
This court has, on several occasions since 1965, reviewed, with approbation, the role of state referees. Florida Hill Road Corporation v. Commissioner of Agriculture, 164 Conn. 360, 365-66, 321 A.2d 856 (1973), describes the history of the position of state referee and concludes (p. 362) that such a referee "is not a `judge of the superior court or the court of common pleas' but is sui generis, [and] sits as a special tribunal." See also Prince v. Sheffield, 158 Conn. 286, 291, 259 A.2d 621 (1969), and Harbor Construction Corporation v. D. V. Frione & Co., 158 Conn. 14, 16, 255 A.2d 823 (1969). The state referee system, as a special tribunal, does not encroach upon, and does not unconstitutionally compete with, other constitutional courts. On the contrary, as we noted in Florida Hill Road Corporation (p. 367), state referees "serve the very practical purpose of relieving the court's crowded dockets."
In the light of the clear language of the constitution and the consistent construction of the statute in this court, the plaintiff has failed to sustain her burden of demonstrating the unconstitutionality of § 52-434. State v. Olds, 171 Conn. 395, 411, 370 A.2d 969 (1976); Wilson v. Connecticut Product Development Corporation, 167 Conn. 111, 114, 355 A.2d 72 (1974); Kellems v. Brown, 163 Conn. 478, 486, 313 A.2d 53 (1972), appeal dismissed, 409 U.S. 1099, 93 S.Ct. 911, 34 L. Ed. 2d 678 (1973).
The plaintiff's argument concerning her lack of consent to a hearing before a referee is difficult to maintain in light of the express provision of § 52-434 which provides for reference "with the written consent of the parties or their attorneys." (Emphasis added.) The record clearly indicates that the plaintiff was represented by counsel, and that her counsel signed a motion for reference to a state referee. It is hornbook law that clients generally are bound by the acts of their attorneys. Link v. Wabash R. Co., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 8 L. Ed. 2d 734 (1962); Collens v. New Canaan Water Co., 155 Conn. 477, 496, 234 A.2d 825 (1967); Butler v. Butler, 1 Root 275 (Conn. 1791). This court has specifically held, moreover, that objections to an order of reference should be raised by direct appeal, rather than by a collateral attack on a judgment, unless it is necessary to open the judgment to "prevent a miscarriage of justice." Zingus v. Redevelopment Agency, 161 Conn. 276, 282, 287 A.2d 366 (1971).
There are no facts on the record before us that would warrant a conclusion that there has been a
Although the plaintiff in this collateral attack has not sustained her burden of establishing that the refusal to open the judgment constitutes a miscarriage of justice, the questions indirectly raised by her appeal are not trivial. It may well be time to reconsider the role that lawyers and judges play in the matrimonial cases that appear in ever-increasing numbers before the courts. Analogies drawn from commercial litigation fail to respond adequately to the situation of emotional trauma commonly associated with the irretrievable breakdown of a marriage. In many other areas, this court has become increasingly willing to recognize the reality of emotional trauma. Recently, we have held that recovery, in tort, for unintentionally caused emotional distress, is permissible; Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978); we have recognized loss of conjugal companionship and affection as an element of damages for loss of consortium; Hopson v. St. Mary's Hospital, 176 Conn. 485, 494-95, 408 A.2d 260 (1979); and we have taken account of acute emotional upset as a factor in weighing criminality of conduct. State v. Elliott, 177 Conn. 1, 411 A.2d 3 (1979). In many other states, there is a developing case law articulating the right of a
The plaintiff's final claim is that the referee lacked jurisdiction over the subject matter of her divorce because there was no valid order of reference to the referee from the Superior Court. The record discloses only an entry in the jacket of the trial court file, dated June 1, 1972, purporting to represent an order by the Superior Court judge that the case be referred to Hon. Thomas E. Troland, trial referee. There is nowhere any order to this effect signed by the Superior Court judge. The record does indicate that the referee was notified, and that, without objection by the parties or their counsel, he conducted the proceedings leading to his rendition of the judgment of divorce.
The 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
There is no error.
In this opinion the other judges concurred.
[Supreme and superior court judges, appointments, terms, removal.] Sec. 2. The judges of the supreme court and of the superior court shall, upon nomination by the governor, be appointed by the general assembly in such manner as shall by law be prescribed. They shall hold their offices for the term of eight years, but may be removed by impeachment. The governor shall also remove them on the address of two-thirds of each house of the general assembly.
[Age limitation, exception.] Sec. 6. No judge or justice of the peace shall be eligible to hold his office after he shall arrive at the age of seventy years, except that a chief justice or judge of the supreme court, a judge of the superior court, or a judge of the court of common pleas, who has attained the age of seventy years and has become a state referee may exercise, as shall be prescribed by law, the powers of the superior court or court of common pleas on matters referred to him as a state referee."