Connecticut Judicial Branch Law
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Copyright © 2001-2008, Judicial Branch, State of Connecticut. All rights
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Motion Practice
In Family Matters
· “As used in these rules, the term ‘motion’ means any application to the court for an order, which application is to be acted upon by the court or any judge thereof; and the term ‘request’ means any application to the court which shall be granted by the clerk by operation of these rules unless timely objection is filed.” Conn. Practice Book § 11-2 (2008)
Sections in this chapter:
§ 4. Motion to Open Judgment In A Family Matter
Tables in this chapter:
Table 1. Motion for exclusive possession Of home
See Also:
A Guide to Resources in the Law Library
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SCOPE: |
Bibliographic resources relating to family motions and requests motion practice in general.
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DEFINITION: |
· Motion: “means any application to the court for an order, which application is to be acted upon by the court or any judge thereof . . .” Conn. Practice Book § 11-2 (2008).
· Request: “ means any application to the court which shall be granted by the clerk by operation of these rules unless timely objection is filed.” Conn. Practice Book § 11-2 (2008).
· Requirements: "Every motion, request, application or objection directed to pleading or procedure, unless relating to procedure in the course of a trial, shall be in writing and shall, except in the case of a request, have annexed to it a proper order, and a proper order of notice and citation, if one or both are necessary. Such motion, request, application or objection shall be served on all parties as provided in Sections 10-12 through 10-17 and, when filed, the fact of such service shall be endorsed thereon." Conn. Practice Book § 11-1 (2008).
· “Each such motion shall state clearly, in the caption of the motion, whether it is a pendente lite or a postjudgment motion.” Conn. Practice Book § 25-24(b) (2008).
· Due Process: "It is a fundamental premise of due process that a court cannot adjudicate a matter until the persons directly concerned have been notified of its pendency and have been given a reasonable opportunity to be heard in sufficient time to prepare their positions on the issues involved." Costello v. Costello, 186 Conn. 773, 776-777, 443 A.2d 1282 (1982)
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COURT RULES: |
· Connecticut Practice Book (2008) Chapter 11 Motions, requests, orders of notice, and short calendar § 11-1. Form of Motion and Request. “Every motion, request, application or objection directed to pleading or procedure, unless relating to procedure in the course of a trial, shall be in writing and shall, except in the case of a request, have annexed to it a proper order, and a proper order of notice and citation, if one or both are necessary.”
Chapter 25 Procedures in family matters § 25-11. Pleadings in general—Order of Pleadings § 25-23. Motions, Requests, Orders of Notice, and Short Calendar “The provisions of Sections 11-1, 11-2, 11-4, 11-5, 11-6, 11-8, 11-10, 11-11, 11-12, 11-19, 11-20, 12-1, 12-2, and 12-3 of the rules of practice shall apply to family matters as defined in Section 25-1.”
§ 25-24. Motions (a) Any appropriate party may move for alimony, child support, custody, visitation, appointment of counsel for the minor child, counsel fees, or for an order with respect to the maintenance of the family or for any other equitable relief.
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FORMS: |
· 2 Connecticut Practice Book (1998)
· Mary Ellen Wynn and Ellen B. Lubell, Handbook of Forms for the Connecticut Family Lawyer (1991).
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CASES: |
· Krauss v. Krauss, No. FA 01-0123272S (Conn. Super. Ct., J.D. New London at Norwich, Feb. 10, 2005) “It is clear that every motion and pleading must be in writing.”
· Connolly v. Connolly, 191 Conn. 468, 475, 464 A.2d 837 (1983). "Our rules of practice require that every motion directed toward pleading or procedure, unless relating to procedure during the course of a trial, be in writing . . . . The purpose of requiring written motions is not only the orderly administration of justice . . . but the fundamental requirement of due process of law."
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TEXTS & TREATISES: |
· 2 Ralph P. Dupont, Dupont on Connecticut Civil Procedure (2007-2008). §§ 25-23 et seq. Motion practice in family matters
· 1 Family Law & Practice in Connecticut (1996) Chapter 4, Motion Practice in Matrimonial Actions by Sandra P. Lax Chapter 5, Motion Practice before Trial by Sheldon A. Rosenbaum I. Scope of chapter II. Motions, petitions, and orders in general III. Procedural motions IV. Substantive motions V. Modifications VI. Enforcement of orders of temporary relief and injunctive relief VII. Conclusions
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COMPILER: |
Lawrence Cheeseman, Connecticut Judicial Branch, Law Library at Middletown, One Court Street, Middletown, CT 06457. (860) 343‑6560. Email
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SCOPE: |
Bibliographic resources relating to the transfer of action on the family docket
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SEE ALSO: |
· Transfer of action (Civil). 3 Civil Motions and Writs in Connecticut, Chapter 12, Transfer of Action.
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DEFINITIONS: |
· Venue vs. Jurisdiction: “‘While jurisdiction is the power and authority of the court to act, venue is the place where the power to adjudicate is to be exercised, that is, the place where the suit may or should be heard. The requirements of jurisdiction are grounded in the state's inherent judicial power, while the requirements of venue are grounded in convenience to litigants. Venue does not involve a jurisdictional question but rather a procedural one, and thus is a matter that goes to process rather than substantive rights. Moreover, although a court's lack of subject-matter jurisdiction cannot be waived, improper venue may be waived and may be changed by the consent of the parties.’ . . . ("[s]tatutory venue requirements simply [confer] a privilege not to be required to attend court at a particular location" [internal quotation marks omitted]).’” Lebron v. Commissioner of Correction, 274 Conn. 507, 522,876 A.2d 1178 (2005).
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STATUTES: |
· Conn. Gen. Stats. (2008) § 51-347b Transfer of causes by court, motion or agreement. (a) Any action or the trial of any issue or issues therein may be transferred, by order of the court on its own motion or on the granting of a motion of any of the parties, or by agreement of the parties, from the superior court for one judicial district to the superior court in another court location within the same district or to a superior court location for any other judicial district, upon notice by the clerk to the parties after the order of the court, or upon the filing by the parties of a stipulation signed by them or their attorneys to that effect.
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COURT RULES: |
· Conn. Practice Book (2008). Chapter 12 Transfer of action [to another Judicial District] 12-1 Procedure for transfer 12-3 Transmission of Files and Papers
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FORMS: |
· 2 Conn. Practice Book (1998) Form 106.17. Transfer of Action Stipulation, Motion and Order. Transfer for trial of issues only.
· 2 Joel M. Kaye and Wayne D. Effron, Connecticut Practice Series, Practice Book Annotated (4th ed. 2004). Form 106.13-A. “all of the parties, as well as the plaintiff’s attorney, reside in the Town of . . .” Form 106.13-B. Stipulation for transfer
· Mary Ellen Wynn and Ellen B. Lubell, Handbook of Forms for the Connecticut Family Lawyer (1991). Form No. XX‑A‑3, Motion for Transfer, p. 272 Includes order and certification
· 1 Family Law & Practice in Connecticut (1996) Chapter 5. Motion Practice Before Trial § 5.19 Motion to transfer
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CASES: |
· Savings Bank of Danbury v. Downs, 74 Conn. 87, 90 (1901). “. . . written stipulation by both parties for a transfer of action has been filed; and, for that, filing an answer cannot be regarded as an equivalent.”
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WEST KEY NUMBER: |
· Venue # 33-84 |
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ENCYCLOPEDIAS: |
· 77 Am Jur 2d Venue (2006)
§ 1. Definitions § 2. —Jurisdiction distinguished § 3. Party’s choice of venue as right or privilege § 4. As governed by by statute, rule, constitutional provision § 5. —Constitutional limitations § 7. Retroactive application of venue statute § 8. Determining proper venue; Time as of which determination is made § 9. Right to sue in more than one venue § 42. Objections to venue; Waiver and loss of right to object; Generally; Who may raise objection § 47. Change of venue; In general; Right to change in general § 53. Grounds, generally § 61. Application and determination; Terms and manner of application, generally; form; notice § 70. Order; Form and content; designation of new venue; generally
· 92A C.J.S. Venue (2000). § 131. Actions in which change maybe granted; generally § 132. Special statutory actions § 133. Supplemental, ancillary or incidental proceedings § 134. Proceedings to nullify or vacate judgments § 136. Domestic relations § 142. Who may secure change of venue; Generally § 143. Intervenors and impleaded parties § 144. Substitute parties § 145. Rights of coparties; Consent requirements § 146. Nature of consent required § 147. Binding nature of change as to coparties § 148. Grounds for change of venue; In general § 153. Failure to commence action in correct venue
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TEXTS & TREATISES: |
· 1 Wesley W. Horton & Kimberly A. Knox, Connecticut Practice Series. Superior Court Rules (2005 edition). Authors’ comments following § 12-1
· 1 Family Law & Practice in Connecticut (1996) Chapter 5. Motion Practice Before Trial § 5.19 Motion to transfer
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COMPILER: |
Lawrence Cheeseman, Connecticut Judicial Branch, Law Library at Middletown, One Court Street, Middletown, CT 06457. (860) 343‑6560 EMAIL
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Table 1 Motion for Exclusive Possession of Home
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Motion for Exclusive Possession of Home
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STATUTES |
“The court may also award exclusive use of the family home or any other dwelling unit which is available for use as a residence pendente lite to either of the parties as is just and equitable without regard to the respective interests of the parties in the property.” Conn. Gen. Stats. § 46b-83 (2005) as amended by 2005 Conn. Acts 258 § 5.
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COURT RULES |
Motion for Exclusive Possession Each motion for exclusive possession shall state the nature of the property, whether it is rental property or owned by the parties or one of them, the length of tenancy or ownership of each party, the current family members residing therein and the grounds upon which the moving party seeks exclusive possession. Conn. Practice Book § 25-25 (2008)
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FORMS: |
· 3 Joel M. Kaye and Wayne D. Effron, Connecticut Practice Series, Civil Practice Form (4th ed. 2004), § 504.1-M. Motion to vacate premises · Mary Ellen Wynn and Ellen B. Lubell, Handbook of Forms for the Connecticut Family Lawyer (1991). Form VI-E-1. Motion for exclusive possession, p. 120. · 1 Family Law & Practice in Connecticut (1996), Chapter 5, Motion Practice before Trial by Sheldon A. Rosenbaum § 5.72. Motion for Exclusive Possession
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TEXTS & TREATISES |
· 7 Arnold H. Rutkin and Kathleen A. Hogan, Connecticut Practice, Family Law and Practice with Forms (1999). § 25.7. Temporary use of the marital home · 1 Family Law & Practice in Connecticut (1996), Chapter 5, Motion Practice before Trial by Sheldon A. Rosenbaum § 5.71. Exclusive use of residence · Mary Ellen Wynn and Ellen B. Lubell, Handbook of Forms for the Connecticut Family Lawyer (1991). Exclusive possession of the Family Home Pendente Lite: Notes and Comments
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SCOPE: |
Bibliographic resources relating to attempts for reconciliation in action for dissolution of marriage, legal separation or annulment.
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DEFINITIONS: |
· Conciliation: " On or after the return day of a complaint seeking the dissolution of a marriage or a legal separation and prior to the expiration of the ninety-day period specified in section 46b-67 either spouse or the counsel for any minor children of the marriage may submit a request for conciliation to the clerk of the court." Conn. Gen. Stats. § 46b-53(a) (2008).
· Conciliator: "The clerk shall forthwith enter an order that the parties meet with a conciliator mutually acceptable to them or, if the parties cannot agree as to a conciliator, with a conciliator named by the court. The conciliator shall, in any case, be a clergyman, a physician, a domestic relations officer or a person experienced in marriage counseling." Conn. Gen. Stats. § 46b-53(a) (2008).
· Mandatory consultations: (b) "Within such ninety-day period or within thirty days of the request, whichever is later, there shall be two mandatory consultations with the conciliator by each party to explore the possibility of reconciliation or of resolving the emotional problems which might lead to continuing conflicts following the dissolution of the marriage . . . . Further consultations may be held with the consent of both parties, or, if the conciliator recommends one or more additional consultations and either one of the parties agrees, the court may order such additional consultations." Conn. Gen. Stats. § 46b-53(b) (2008).
· Failure to attend: "Failure of the plaintiff or defendant to attend these consultations except for good cause shall preclude further action on the complaint until the expiration of six months from the date of the return day; provided the court may order the termination of such stay, upon the motion of either party and for good cause shown." Conn. Gen. Stats. § 46b-53(b) (2008).
· Privileged communication: "All communications during these consultations shall be absolutely privileged, except that the conciliator shall report to the court whether or not the parties attended the consultations." Conn. Gen. Stats. § 46b-53(c) (2008).
· Fees: "The reasonable fees of the conciliator shall be paid by one or both of the parties as the court directs. No fee shall be charged by a domestic relations officer for such services. If the parties are unable to pay the fees which may be charged by the conciliator, only a domestic relations officer may be named as the conciliator." Conn. Gen. Stats. § 46b-53(d) (2008).
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STATUTES:
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· Conn. Gen. Stat. (2008) § 46b‑10. Attempt at reconciliation in action for dissolution of marriage, legal separation or annulment. In any action for dissolution of marriage, legal separation or annulment, at any time before final judgment any judge may require that either or both parties appear before any judge, referee or other disinterested person for the purpose of attempting a reconciliation or adjustment of differences between the parties. Any person designated under the provisions of this section may be a family relations counselor or family relations caseworker and such person shall have all the powers provided in chapter 910. Such person shall report to the court only the fact of whether or not reconciliation can be effected and shall not divulge information given to him by the parties except with the consent of all parties.
§ 46b‑53. Conciliation procedures; privileged communication See definitions above for text of statute
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FORMS:
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· Mary Ellen Wynn and Ellen B. Lubell, Handbook of Forms for the Connecticut Family Lawyer (1991). Request for Conciliation, Form VI‑D‑1, p. 118.
· 1 Family Law Practice in Connecticut (1996). § 5.81. Form- Request for Reconciliation, p. 5-69
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CASES: |
· Cabrera v. Cabrera, 23 Conn. App. 330, 338, 580 A.2d 1227 (1990). "The public policy underlying this statute in general and the latter provision in particular must, in part, have been intended to encourage marital reconciliation by providing a safe, confidential setting in which problems as well as possible solutions could be explored fully and honestly."
· Emerick v. Emerick, 5 Conn. App. 649, 657-658, 502 A.2d 933 (1985). "A conciliator is, by statutory definition, a clergyman, a physician, a domestic relations officer or a person experienced in marriage counselling. General Statutes 46b-53(a)."
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TEXTS & TREATISES:
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· 7 Arnold H. Rutkin and Kathleen A. Hogan, Connecticut Practice Series, Family Law and Practice with Forms (1999). § 20.7. Requests for conciliation
· 1 Family Law Practice in Connecticut (1996). § 5.80. Conciliation
· Mary Ellen Wynn and Ellen B. Lubell, Handbook of Forms for the Connecticut Family Lawyer (1991). Conciliation: Notes & Comments, p. 117.
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COMPILER: |
· Lawrence Cheeseman, Supervising Law Librarian, Connecticut Judicial Branch Law Library, One Court Street, Middletown, CT 06457. (860) 343‑6560. Email
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A Guide to Resources in the Law Library
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SCOPE: |
Bibliographic resources relating to the motion to open or set aside judgment in a family matter, including opening judgment after statutory four month limitation.
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DEFINITIONS: |
· Motion to Open or set aside: "Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent. The parties may waive the provisions of this subsection or otherwise submit to the jurisdiction of the court." Conn. Practice Book (2008) § 17-4(a).
· “A judgment rendered may be opened after the four month limitation if it is shown that the judgment was obtained by fraud, in the absence of actual consent, or because of mutual mistake.” Richards v. Richards, 78 Conn. App. 734, 739, 829 A.2d 60 (2003).
· Fraud: “‘consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed. . . . The elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment. . . . A marital judgment based upon a stipulation may be opened if the stipulation, and thus the judgment, was obtained by fraud.’ (Citations omitted; internal quotation marks omitted.) Billington v. Billington, 220 Conn. 212, 217-18, 595 A.2d 1377 (1991). A court's determinations as to the elements of fraud are findings of fact that we will not disturb unless they are clearly erroneous. Anastasia v. Beautiful You Hair Designs, Inc., 61 Conn. App. 471, 478, 767 A.2d 118 (2001).” Mattson v. Mattson, 74 Conn. App. 242, 245, 811 A.2d 256 (2002).
· Clear Proof of Fraud: “. . . to prevail, the defendant was required to present ‘clear proof’ of the plaintiff’s alleged fraud at the hearing on his motion to open.” Mattson v. Mattson, 74 Conn. App. 242, 245, 811 A.2d 256 (2002) fn 4. · Intention to Remarry: “Furthermore, the plaintiff's failure to disclose her intention to remarry cannot amount to fraudulent nondisclosure. The mere intention to perform an act in the future cannot be considered a ‘known fact’ because a party's intention to perform may never materialize into actual performance.” Pospisil v. Pospisil, 59 Conn. App. 446, 451, 757 A.2d 655 (2000).
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STATUTES: |
· Conn. Gen. Stat. (2008). § 52-212a. Civil judgment or decree reopened or set aside within four months only.
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COURT RULES: |
· Connecticut Practice Book (2008) § 17-4. Setting Aside or Opening Judgments
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FORMS:
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· Mary Ellen Wynn and Ellen B. Lubell, Handbook of Forms for the Connecticut Family Lawyer (1991). “Motion to Open Judgment,” Form XVI‑B‑1c, p. 243. Pension not previously disclosed.
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CASES: |
· Weinstein v. Weinstein, 79 Conn. App. 638, 648, 830 A.2d 1134 (2003), cert. granted, limited to the following issue:"Did the Appellate Court properly affirm the trial court's denial of the plaintiff's motion to open this marital dissolution judgment on the basis of fraud”, 266 Conn. 933 (2003). “We conclude that there was sufficient credible evidence in the record to support the court's conclusion that the defendant's nondisclosure of the private placement memorandum was not fraudulent. As such, the court did not abuse its discretion in denying the motion to open the dissolution judgment.”
· Richards v. Richards, 78 Conn. App. 734, 740-741, 829 A.2d 60 (2003). “Because there was no finding of mutual mistake as to the definition of ‘cash disbursement’ or any other basis established by § 52-212a, the defendant is correct in challenging the court's authority to open the judgment. We therefore have jurisdiction to hear the claim and conclude that the court lacked authority to open the judgment.”
· Mattson v. Mattson, 74 Conn. App. 242, 245-246, 811 A.2d 256 (2002). “There are three limitations on a court's ability to grant relief from a dissolution judgment secured by fraud: ‘(1) there must have been no laches or unreasonable delay by the injured party after the fraud was discovered; (2) there must be clear proof of the fraud; and (3) there is a substantial likelihood that the result of the new trial will be different.’ Billington v. Billington, supra, [220 Conn. 212,] 218 [595 A.2d 1377 (1991)].’ (Emphasis added.) Pospisil v. Pospisil, supra, 59 Conn. App. [446,]450 [757 A.2d 655(2000].”
· Pospisil v. Pospisil, 59 Conn. App. 446, 450-451, 757 A.2d 655 (2000). “In the present case, it is clear that the plaintiff harbored, but never disclosed, an intention to remarry at some point after the dissolution of her marriage with the defendant. At no point during the dissolution proceedings, however, did the court or the defendant ever question the plaintiff about her intentions to remarry. Thus, we are satisfied that the plaintiff did not deliberately conceal or purposely mislead the court or the defendant about her intention to remarry.”
· Jenks v. Jenks, 34 Conn. App. 462, 465, 642 A.2d 31(1994), rev'd on other grounds, 232 Conn. 750 (1995). “It is firmly established in Connecticut . . . . that opening a contractually based judgment is different from opening a judgment following a fully litigated case. A contractually based judgment may be opened only if the trial court finds fraud, duress, accident or mistake.”
· Townsley v. Townsley, 37 Conn. App. 100, 101, 654 A.2d 1261 (1995). "The dispositive issue on appeal is whether the trial court improperly opened the dissolution judgment as to all issues when the plaintiff's motion to open was for a limited discrete purpose." "By opening the judgment as to all issues, the trial court abused its discretion." (p. 104).
· In re Baby Girl B., 224 Conn. 263, 284-285, 618 A.2d 1 (1992). “Although 52-212a, therefore, does not authorize the opening of a judgment at will, it does authorize the opening of a judgment in some cases in which a claim has been adjudicated against a defendant in his or her absence.'”
· Billington v. Billington, 220 Conn. 212, 214, 595 A.2d 1377 (1991). “The principal issue in this certified appeal is whether a party to a marital dissolution judgment must establish, in order subsequently to open the judgment based upon a claim of fraud, that she was diligent during the original action in attempting to discover the fraud. We conclude that the movant need not establish such diligence, and accordingly reverse the judgment of the Appellate Court.”
· Breen v. Breen, 18 Conn. App. 166, 172, 557 A.2d 140 (1989). "It is well recognized that `[t]he opening . . . of a judgment . . . is at the legal discretion of the court. Tyler v. Aspinwall, 73 Conn. 493, 47 A. 755 [1901] . . . [I]t "is not to be granted readily, nor without strong reasons" . . . . Wildman v. Wildman, 72 Conn. 262, 270, 44 A. 244 [1899].' McCulloch v. Pittsburgh Plate Glass Co., 107 Conn. 164, 167, 140 A. 114 (1927). `The motion should not be granted merely to allow the court to reconsider its decisions on the facts and its exercise of discretion.
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TEXTS:
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· 8A Arnold H. Rutkin et al. Connecticut Practice Series, Family Law and Practice with Forms (2d ed. 2000). § 52.4. Motion to re-open or vacate judgment § 52.5. Time for setting aside or opening judgments § 52.6. Grounds for opening or setting aside judgment § 52.7. Motion to reopen or set aside judgments on the basis of fraud § 52.8. Lack of jurisdiction § 52.9. Request for new trial
· 1 Wesley Horton and Kimberly A. Knox, Connecticut Practice Series, Practice Book Annotated, Superior Court Civil Rules (2005 edition). Authors' comments following § 17-4.
· 2 Ralph P. Dupont, Dupont on Connecticut Civil Practice (2002 ed.). § 17-4.4. Opening or setting aside judgment; Appeal from
· Jeanine M. Dumont, Pleadings and Pretrial Practice (1998 ed.) XIV. Motions to set aside or open, reargue, correct, articulate and enforce settlements, and the accidental failure of suit statute 2. Motions to set aside or open judgment 3. Motions to open judgment
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COMPILER: |
Lawrence Cheeseman, Supervising Law Librarian, Connecticut Judicial Branch, One Court Street, Middletown, CT 06457. (860) 343‑6560. Email
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