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Levine v. Levine3/22/2005
The plaintiff, Randee Levine, appeals from the judgment of the trial court barring her motion for modification of alimony, brought against the defendant, Gerald Levine, on the basis of the doctrine of res judicata. On appeal, the plaintiff claims that the court (1) violated the 120 day rule set forth in General Statutes § 51-183b and (2) improperly applied the doctrine of res judicata. We agree with plaintiff's second claim and, accordingly, reverse the judgment.
The trial court's memorandum of decision sets forth the following facts: "The parties' seventeen year marriage was dissolved on March 19, 1992. The parties had made agreements incident to the dissolution. The agreements of the parties were approved by the court and incorporated by reference in the judgment. . . . A separation agreement dated March 19, 1992 contained the provision regarding alimony in Article III thereof.
" `Ten years from the date hereof, unless sooner terminated, alimony shall be reduced to One ($1.00) Dollar per year, modifiable upwards only in the event of the Wife's medical disability which prevents the Wife from gainful employment . . . .' "
The court also found, after reviewing its file, that the "plaintiff had previously filed for a modification of alimony [on February 23, 2000]. . . . n May 18, 2001, there had been a full evidentiary hearing on that motion. That motion was denied by the court on June 20, 2001. Barely seven months after the denial of that motion, plaintiff, with new counsel, filed the present motion for modification now before the court. The court noted the similarity of the grounds asserted for modification on the two postjudgment motions to modify. This raised the question whether the denial of the earlier motion was a bar to the plaintiff's proceeding again on what appeared to be the same claim." Following a hearing on a motion in limine, the court concluded that the new motion for modification was barred by the doctrine of res judicata. This appeal followed.
I.
The plaintiff first raises a jurisdictional issue. She maintains that General Statutes § 51-183b, which sets time limits for rendering judgments in civil actions, specifically requires that " ny judge of the Superior Court . . . who has commenced the trial of any civil cause, shall have power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. . . ." She maintains that the trial court last heard argument on July 20, 2002, and that she moved for an order on February 10, 2003, asserting that the court had lost jurisdiction because no decision had been reached by the court and 120 days had passed. We reject this claim and hold that a hearing held for the very purpose of determining whether a second and subsequent trial or hearing is precluded or barred is not a "trial" for purposes of § 51-183b.
Because this claim involves the construction of a statute, our review of the court's interpretation of § 51-183b is plenary. See Nunno v. Wixner, 257 Conn. 671, 677, 778 A.2d 145 (2001); Statewide Grievance Committee v. Ankerman, 74 Conn. App. 464, 470, 812 A.2d 169, cert. denied, 263 Conn. 911, 821 A.2d 767 (2003). The bill before the legislature, which later was codified as the antecedent of § 51-183b, was signed into law on February 20, 1879, and took effect from its passage. In its original form, it empowered a judge "who shall have commenced the trial of any cause," to continue such trial and render judgment after the expiration of the term of the court at which such trial commenced. It required, however, that the trial be completed and judgment rendered before the close of the
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