[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO DISMISS The plaintiff, Janice Murray, filed a post-judgment motion to modify the custody agreement she has with the defendant, Paul Murray, on July 18, 2000. The custody agreement concerns two minor children of the parties. On August 3, 2000, the defendant filed a motion to dismiss plaintiff's motion to modify on the ground that the plaintiff was estopped from filing such a motion under the theory of res judicata, thereby leaving the court without the subject matter jurisdiction necessary to hear the motion.
"Res judicata does not implicate a court's subject matter jurisdiction. The doctrine is invoked when a litigant alleges that a party is reasserting a claim that has already been decided on the merits. The doctrine must be raised as a special defense and may not be raised by a motion to dismiss, which is the appropriate vehicle to assert a lack of jurisdiction." Rosenfeld v. McCann, 33 Conn. App. 760, 762, 638 A.2d 631 (1994).
Moreover, the memorandum submitted in support of the defendant's motion to dismiss argues the merits of the case, which, again, is not proper in a motion to dismiss. This motion is more properly titled a motion in opposition to plaintiff's motion to modify.
For the foregoing reasons, the defendant's motion to dismiss is hereby denied.
However, because the plaintiffs motion to modify can be fairly read as a motion to reargue in the context of the decision and the alleged change in circumstances and further because the special defense of res judicata which can be argued in the context of a summary judgment motion which would entail a precise determination of that which was previously decided; the case is referred back to Judge Devine for further proceedings.
Barall, JTR