Gershon v. Back, 346 Conn. 181 (2023) (Enforcement of foreign Judgment under § 46b-71 & the issue of whether a rule is procedural or substantive in nature)
Officially released February 21, 2023
In Short: When a foreign judgment is registered in Connecticut, pursuant to C.G.S. § 46b-71 the substantive law of the foreign jurisdiction will apply and the procedural law of Connecticut will apply. This rule in question in this case fell into the grey area between procedural and substantive, but the parties had incorporated the rule into the language of their separation agreement and enforcement of the rule would not present an undue burden to the Connecticut court, and so the Appellate and Supreme Courts both held that the rule was substantive in nature and foreign law applied.
The parties executed a prenuptial agreement and were married in 1997. Wife filed for divorce in New York in 2009. Wife challenged the prenuptial agreement’s validity and a New York Court determined that the prenuptial agreement was valid. In 2011 the parties entered into a stipulation that resolved their dispute over marital property, superseded the prenuptial agreement, and was expressly not merged into the Judgment of dissolution, but able to be independently enforced. The stipulation contained a choice of law provision opting for New York law. Thereafter, the New York Court rendered a judgment of dissolution.
Both parties moved to Connecticut and Wife registered the judgment in Connecticut in 2014 pursuant to C.G.S. § 46b-71. Wife filed a motion to modify child support in Connecticut for which the parties engaged in discovery and litigation and the trial court entered an order increasing Husband’s support obligations pursuant to New York law.
In 2018, Wife filed a motion to open on the basis of fraud that is subject of this appeal. Wife alleged that the result of the settlement would have been different if Husband had not engaged in fraudulent misrepresentations on his financial affidavit at time of settlement.
The trial court scheduled an Oneglia hearing and requested memoranda of law as to the New York standard for opening a judgment. Among other arguments, Husband argued that under New York law, Wife could not challenge a stipulation that was not incorporated into the judgment by way of a motion to open, but was required to file a plenary action in contract, on which the statute of limitations had already run. Husband also argued that if the contract were invalidated, Wife would receive even less under the terms of the prenuptial agreement.
At the conclusion of the Oneglia hearing the trial court confirmed that the stipulation was incorporated into but not merged into the judgment and that all substantive matters related to it were to be governed by New York law. The trial court agreed with Husband that under New York law, a stipulation that is incorporated but not merged cannot be challenged by motion to open but must instead be challenged by a plenary action in contract. The trial court determined that New York’s alternative to Oneglia applied, and denied further discovery based on New York law. The trial court set the matter down for further argument as to why the motion should not be denied, after which it entered a judgment dismissing the motion for lack of subject matter jurisdiction.
Wife appealed from the judgment of dismissal. The Appellate Court considered only Wife’s claim that the trial court improperly dismissed the motion to open on the ground that it lacked subject matter jurisdiction. The question of subject matter jurisdiction is always subject to plenary review.
The Appellate Court determined that C.G.S. § 46b-71 permitted the superior court to modify, vacate, or set aside the properly registered foreign judgment, by applying the appropriate foreign substantive law. Therefore, the trial court improperly determined that it lacked subject matter jurisdiction over the motion to open.
Wife argued that the mechanism to challenge the Judgment, a plenary action to challenge the contract versus a motion to open, is an issue of procedural law rather than substantive law, and therefore Connecticut law applied to that issue. The Appellate Court agreed with Husband that this was a substantive and not procedural issue, because it abridged the rights of individuals to bring certain actions. Thus, because New York substantive law precluded the trial court from granting the relief that Wife requested based on the type of motion she filed, as a matter of law, the motion should have been denied.
The order dismissing the motion to open was reversed and remanded by the Appellate Court with direction to deny the motion to open. Wife petitioned for certification to the Supreme Court, which was granted. Husband died on December 18, 2020, and his estate was substituted for him as defendant in this appeal.
The appeal certification to the Supreme Court was limited to the following: “Did the Appellate Court correctly determine that a New York law is substantive rather than procedural for choice of law purposes when that law would require a litigant in the parties’ circumstances who is seeking to obtain postjudgment relief in a marital dissolution case to file a plenary action rather than a motion to open the dissolution judgment?”
The Supreme Court set forth the facts: “New York’s “plenary action rule” requires a party seeking to modify or vacate a separation agreement that survives a final judgment of divorce to file a plenary action on the contract instead of a motion to open, modify or vacate the divorce judgment.” In plain English, under New York law, if the contract is not merged into the Judgment, but survives as an enforceable contract, you cannot file a motion to open the Judgment, you must attack the contract before the statute of limitations has run.
The Supreme Court set forth the issue: “This certified appeal requires us to determine whether New York’s plenary action rules is procedural or substantive for choice of law purposes.” I.e., whether the plenary action rule is substantive, in which case New York law governs, or procedural, in which case Connecticut law governs.
The Supreme Court noted that the separation agreement explicitly incorporated the plenary action rule, by providing that it “shall not be invalidated or otherwise affected by any decree or judgment of separation or divorce made by any court in any action [that] may presently exist or may hereafter be instated by either party against the other for a separation or divorce, and the obligations and covenants of this [a]greement shall survive any decree or judgment of separation or divorce and shall not merge therein and this [a]greement may be enforced independently of such decree or judgment…. No judgment, order or decree in any action for divorce or separation, whether brought in the [s]tate of New York or in any other state … having jurisdiction [over] the parties hereto, shall make any provisions … in a manner inconsistent with the provisions of this [a]greement …”
As a choice of law question, the Supreme Court subjected this issue to de novo review. The Supreme Court restated the basics of applying substantive and procedural law of a foreign judgment under § 46b-71. Namely, Connecticut procedural law applies and the foreign substantive law applies. The theory is that application of the local rules (procedure) of another state would be too disruptive or difficult.
When it comes to the grey area of which is which, “[i]t is generally agreed that a substantive law creates, defines and regulates rights … a procedural law prescribes the methods of enforcing such rights or obtaining redress.” However, some rules are “so interwoven with … the cause of action as to become one of the congeries of elements necessary to establish the right …”
When rules fall into grey areas, the courts should consider: “(1) whether the issue is one to which the parties are likely to have given thought in the course of entering into the transaction; (2) whether the issue is one [the] resolution [of which] would be likely to affect the ultimate result of the case; (3) whether the precedents have tended consistently to classify the issue as ‘procedural’ or ‘substantive’ for [choice of law] purposes; and (4) whether an effort to apply the rules of the judicial administration of another state would impose an undue burden [on] the forum.” (Quoting the Restatement (Second) of Conflict of Laws; internal quotation marks omitted).
The Supreme Court noted that, unlike Connecticut Courts, New York courts do not review provisions of a separation agreement to determine whether it is fair and equitable. Typically, such agreements survive the Judgment in New York. New York courts are less involved in oversight of divorce agreements and do not put their imprimatur on such agreements.
The Supreme Court heavily weighed the incorporation of the plenary action rule into the language of the separation agreement. It found that application of this rule would not impose undue burden on the courts of this state, as separation agreements are contracts which may be litigated independently in a civil contract action. The Supreme Court determined that the rule was substantive, not procedural.
The Judgment of the Appellate Court was affirmed.