Opinion
HHDFA166070612S
09-19-2017
Merilyn Aquino-Perez v. Reinaldo Dejesus
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#114)
Robert Nastri, Jr., J.
On August 19, 2016, the plaintiff filed a complaint seeking a dissolution of marriage from the defendant, as well as a fair division of property and debts, alimony, child support, an order regarding the post-majority educational support, joint legal custody of the minor children, and their primary residence with the plaintiff.
The parties were married on April 30, 1994, in Hartford, Connecticut. They have two children together. Throughout their marriage, and despite multiple separations, the parties resided in Connecticut until the last separation when the defendant relocated to North Carolina in August 2014. On May 31, 2016, the defendant filed a complaint for absolute divorce in North Carolina, which was served upon the plaintiff in Connecticut. The plaintiff did not file an answer, nor even an appearance in the North Carolina action.
By agreement dated September 14, 2016, this court entered orders, inter alia, for child support, alimony, and medical coverage and expenses. A little more than a month later, on October 21, 2016, the North Carolina court entered a judgment of absolute divorce.
On June 12, 2017, the defendant filed his motion to dismiss (#114) with a memorandum of law in support on the grounds that this court does not have jurisdiction because the defendant filed for dissolution in North Carolina before the plaintiff commenced this action, the plaintiff was served and failed to respond or appear, judgment was entered in North Carolina, and the marriage was dissolved. The plaintiff filed her objection (#112) on February 22, 2017, arguing that because she brought a separate action in Connecticut seeking alimony and equitable distribution before the judgment of absolute divorce was entered in North Carolina, the North Carolina court's judgment does not extinguish her right under that state's law to alimony or property distribution in Connecticut.
The defendant originally filed a motion to dismiss on February 14, 2017. The plaintiff responded by filing her opposition memorandum on February 22, 2017, citing the defendant's failure to file a supporting memorandum of law. The defendant then re-filed the present motion, this time accompanied by a memorandum of law. " Pursuant to Practice Book § 10-31(a) [now § 10-30(c)], a motion to dismiss . . . 'shall always be filed with a supporting memorandum of law and, where appropriate, with supporting affidavits as to facts not apparent on the record.'" Conboy v. State, 292 Conn. 642, 647 n.7, 974 A.2d 669 (2009). See also Practice Book § 11-10(a) (" [a] memorandum of law briefly outlining the claims of law and authority pertinent thereto shall be filed and served by the movant with the following motions . . . motions to dismiss except those filed pursuant to Section 14-3").
" [A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." Practice Book § 10-33. " [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." (Internal quotation marks omitted.) Sousa v. Sousa, 322 Conn. 757, 770, 143 A.3d 578 (2016).
" [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). " [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2015).
The plaintiff asserts that she brought this separate action in Connecticut seeking alimony and equitable distribution before the judgment of absolute divorce was entered in North Carolina, thereby preserving her right to alimony or property distribution in Connecticut. The plaintiff argues that she reserved her right to an equitable distribution of property and alimony by filing her complaint in Connecticut on August 19, 2016 as a separate action, two months before the judgment of absolute divorce was rendered in North Carolina as allowed by N.C. Gen. Stat. § 50-20. The plaintiff cites Chambrello v. Chambrello, Superior Court, judicial district of Litchfield, Docket No. FA-99-0080464-S (June 10, 2002, Frazzini, J.) (32 Conn. L. Rptr. 299, ) in support of her position. In Chambrello, the court found that because the plaintiff had brought a separate action in Connecticut seeking alimony and equitable distribution before the judgment of absolute divorce entered in North Carolina, the North Carolina court's judgment did not extinguish the plaintiff's right under that state's law to alimony or equitable distribution. For that reason, the court denied the defendant's motion to dismiss holding that it had subject matter jurisdiction over the issues of custody, child support, alimony, and equitable distribution of property.
The defendant argues that the court lacks jurisdiction over this matter because he filed for dissolution in North Carolina before this action commenced and judgment of absolute divorce was entered in North Carolina before the Connecticut divorce was final. The defendant asserts that the plaintiff incorrectly relies on Chambrello because that case is distinguishable from the current matter in two ways. First, in Chambrello the plaintiff wife filed for divorce in Connecticut before the defendant husband filed in North Carolina and judgment was entered in North Carolina before the wife's Connecticut case was finalized. The defendant points out that here, he filed his action in North Carolina before the plaintiff filed in Connecticut. Second, in Chambrello, North Carolina expressly yielded jurisdiction to Connecticut on the issue of alimony as the judgment of divorce clearly stated that there was a pending claim for alimony, support, and custody in a separate action. The defendant correctly observes that there was no such yielding of jurisdiction in the case at hand.
As the issue before the court is based on North Carolina law, the court will first look at relevant North Carolina cases and then look to Chambrello . In McIver v. McIver, 92 N.C.App. 116, 374 S.E.2d 144 (1988), the court held that the wife was permitted to assert a separate claim for equitable distribution during the parties' separation, and the right was not destroyed by the entry of the divorce decree in the husband's action. The court noted that " [ N.C. Gen. Stat. § 50-11(e)] merely requires an equitable distribution claim to be asserted at any time prior to judgment, and does not prohibit a claim asserted before a divorce action is filed." (Emphasis in original.) Id., 121.
In Lutz v. Lutz, 101 N.C.App. 298, 399 S.E.2d 385, cert. denied, 328 N.C. 732, 404 S.E.2d 871 (1991), the court held that the wife, who did not file a cross motion or separate action asserting her right to equitable distribution prior to the divorce judgment, lost her right to equitable distribution when the judgment of absolute divorce was granted, even though the issue of equitable distribution was specifically reserved by the trial court. The plaintiff had asserted a claim for equitable distribution prior to the judgment of absolute divorce, the defendant had not. Therefore, when the trial court reserved the issue, it had only reserved the plaintiff's claim. Additionally, in Stark v. Ratashara, 177 N.C.App. 449, 628 S.E.2d 471, cert. denied, 360 N.C. 536, 633 S.E.2d 826 (2006), the court recognized that equitable distribution and alimony are to be treated the same for preservation purposes. As such, because the defendant in that case did not file a counterclaim against the plaintiff for alimony, nor did she file a separate claim for alimony, her right was not preserved. The court considered as insufficient the defendant's mere assertion in her answer that the claims for alimony and equitable distribution in the action were to be reserved.
The Chambrello court stated that its independent research did not reveal any North Carolina authority holding that a separate action has to be brought in North Carolina and cannot be brought in another jurisdiction. Indeed, the North Carolina statutes and case law provide that as long as a cross action or separate action for equitable distribution is filed before a judgment of absolute divorce enters, the party's right has been preserved. There is no requirement that the separate action be brought in North Carolina. The fact that in Chambrello the North Carolina court expressly yielded jurisdiction to Connecticut is of no moment. Connecticut has jurisdiction by operation of North Carolina statutes and case law.
Based on the foregoing, the court finds that it has subject matter jurisdiction over the issues of custody, residency, child support, alimony, post-majority educational support and equitable distribution of property and debts and, therefore, denies the defendant's motion to dismiss.