Opinion
No. FA 03 0733308
August 24, 2004
MEMORANDUM OF DECISION ON MOTION TO DISMISS AND DISCOVERY REQUEST
The plaintiff filed this dissolution action on May 8, 2003, requesting a dissolution of the marriage, exclusive possession of the marital residence, an equitable division of marital assets, and other relief. In response, the defendant filed a three-count cross complaint. Count one of the cross complaint mirrors plaintiff's complaint with the added claim that "[f]or a period of approximately seven years prior to their marriage, the plaintiff and defendant lived together as a family unit and to all intents and purposes as husband and wife"; count two alleges an express or implied promise during the period of premarital cohabitation; count three alleges unjust enrichment during the same period.
On October 24, 2003, the plaintiff filed a request to revise the cross complaint, claiming that any reference to the cohabitation period constitutes an immaterial and improper allegation in a dissolution of marriage cross complaint because Conn. Gen. Stat. § 46b-81 requires the court to consider only the length of the marriage. After hearing, the court (Caruso, J.), on March 15, 2004, granted the request to revise.
On March 26, 2004, the defendant filed a motion for an order compelling production of certain documents relating to the plaintiff's "book of business" with Smith Barney Citigroup on September 1, 1991, September 17, 1998, and December 31, 2003, the first date falling with the alleged premarital cohabitation period. On March 31, 2004, the plaintiff filed an objection to the motion for an order and requested a hearing.
On December 17, 2003, the defendant had filed a motion for compliance and sanctions related to her discovery request and, in response, on December 23 and December 26, 2003, the plaintiff filed objections to the discovery. In accord with Practice Book § 13-10(c), on February 9, 2004, the defendant filed an affidavit regarding the objections to production.
On April 2, 2004, the defendant filed a request for leave to amend her cross complaint in order to delete the reference regarding cohabitation from count one, as ordered by the court, and to preserve the allegation concerning cohabitation in counts two and three of the cross complaint. On April 21, 2004, the plaintiff filed a motion to dismiss the second and third counts of the cross complaint for lack of jurisdiction over the subject matter. This matter, as well as the related discovery matter, was heard by this court on May 13, 2004.
DISCUSSION
The first issue posed in the case is whether claims alleging breach of promise and unjust enrichment, counts 2 and 3 respectively, should be dismissed on the ground that issues arising out of cohabitation prior to the marriage of the parties are not within the subject matter jurisdiction of the Superior Court on the family relations docket as provided by General Statutes § 46b-1. The second issue is whether the court may order discovery relating to a premarital cohabitation period.
Issue I
There is no dispute between the parties that they intermarried on September 17, 1998. The defendant alleges additionally that the parties cohabitated for approximately seven years prior to the marriage. In his motion to dismiss counts two and three of the cross complaint, the plaintiff asserts that this court lacks jurisdiction over issues arising out of cohabitation prior to marriage because such issues are not deemed to be family relations matters as provided by General Statutes § 46b-1. "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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002).
"Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it If a court lacks subject matter jurisdiction to hear and determine cases of the general class to which the proceedings in question belong, it is axiomatic that a court also lacks the authority to enter orders pursuant to such proceedings . . . [The court is] mindful that [a] court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . [W]here a decision as to whether a court has subject mater jurisdiction is required, every presumption favoring jurisdiction should be indulged." (Citations omitted; internal quotation marks omitted.) Abb Automation, Inc. v. Zaharna, 77 Conn.App. 260, 263-64, 823 A.2d 340 (2003). "Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n. 6, 826 A.2d 1102 (2003).
The plaintiff argues that because claims relating to a cohabitation period are not encompassed in § 46b-1 which defines family relations matters, this court lacks jurisdiction to hear such claims. He asserts that the defendant cannot invoke the jurisdiction of the court to consider counts alleging breach of promise and unjust enrichment because claims for damages resulting from the cohabitation period do not fall within either § 46b-1(1) which addresses the dissolution of marriage or within § 46b-1(12) which addresses rights and remedies provided for in Chapter 815j. He further argues that the claims for damages resulting from the cohabitation period do not fall within the category of "other matters" set out in § 46b-1(17). In support of his position, he cites Rosengarten v. Downes, 71 Conn.App. 372, 802 A.2d 170, cert. granted, 261 Conn. 936, 806 A.2d 1066 (2002), as rejecting the argument that § 46b-1(17) could be expanded to include matters which do not involve children or family relations matters. He reasons that since counts two and three relate to the premarital cohabitation period, they are therefore not family relations matters and this court lacks jurisdiction over them. His reliance on this case is misplaced.
Chapter 815j, comprised of General Statutes §§ 46b-40 through 46b-88, inclusive, sets out the rights and remedies relating to the establishment of paternity and the dissolution or annulment of marriage, including alimony, transfer of property, custody, visitation, and contempt proceedings.
In Rosengarten v. Downes, supra, 71 Conn.App. 372, the Appellate Court affirmed that Connecticut courts do not have subject matter jurisdiction to hear cases involving the dissolution of a same sex union. In so holding, the court examined § 46b-1(17) and found no support indicating an intent to recognize and create jurisdiction over the dissolution of foreign civil unions. The issue before this court, however, is somewhat different. It is not whether § 46b-1(17) recognizes and creates jurisdiction over a new cause of action. The cause of action at issue here already exists. The parties agree, and Connecticut law is clear that, while "cohabitation alone does not create any contractual relationship or, unlike marriage, impose other legal duties upon the parties . . . Ordinary contract principles are not suspended . . . for unmarried persons living together (Citations omitted.) Boland v. Catalano, 202 Conn. 333, 339, 521 A.2d 142 (1987). The plaintiff acknowledges that the defendant is not precluded from pursuing a separate civil action alleging breach of promise and unjust enrichment with respect to the premarital period of cohabitation.
The Appellate Court in Rosengarten v. Downes, supra, 71 Conn.App. 393-94, specifically did not address whether jurisdiction could be exercised to determine the effect of implicit or explicit agreements, if any, entered into by the parties regarding the sharing of assets or income of one with the other or whether such agreements are enforceable because, unlike the scenario in Boland v. Catalano, 202 Conn. 333, 521 A.2d 142 (1987), no such express or implied agreements were alleged in the Rosengarten complaint. Moreover, the Rosengarten plaintiff did not make a distinct claim on appeal that jurisdiction might be exercised on this ground.
The crux of the plaintiff's argument appears to be that the maintenance within the Superior Court of a separate docket for family relations matters heard pursuant to § 46b-1 et seq. necessarily creates or destroys subject matter jurisdiction. In evaluating similar assertions, the courts have examined the legislative history of the enactment of § 46b-1 and the legislative policy it was designed to implement. "During the senate proceedings, it was noted that the reason for the enactment of § 46b-1(17), which was part of the court merger bill of the Connecticut Court of Common Pleas and the Superior Court, was to eliminate the waste of judicial personnel caused by ill-defined jurisdictional lines causing duplication of efforts and to provide for the unification, simplification, flexibility and effective responsible control of the administration of the courts of the state of Connecticut. 19 S.Proc., Pt. 7, 1976 Sess., p. 2652, remarks of Senator David Neiditz . . . [The] obvious intent was to collect all matters that had previously been divided between the old Common Pleas Court and the old Superior Court, into a newly merged Superior Court." (Internal quotation marks omitted.) Rosengarten v. Downes, supra, 71 Conn.App. 383.
The Appellate Court of Connecticut has held that a trial court on the docket for juvenile matters improperly determined that it lacked subject matter jurisdiction to address a matter involving someone who was no longer a minor. In re Shonna K., 77 Conn.App. 246, 822 A.2d 1009 (2003). In so holding, the court stated that "[t]he Juvenile Matters docket is a division of the Superior Court and has the same jurisdiction as that of any other division of the Superior Court." In re Shonna K., supra, 77 Conn.App. 258. The Shonna K. court "start[ed] by examining the language of [General Statutes] § 51-164s, which . . . provides in relevant part that [t]he Superior Court shall be the sole court of original jurisdiction . . ."
Furthermore, [the court noted that General Statutes] § 51-164t, which authorizes the Superior Court to be separated into divisions, in part to maximize efficiency and to provide the highest standard of justice, makes no mention of splitting jurisdiction among the various divisions. The chief court administrator is authorized to assign to each division as many judges as deemed advisable in the best interest of court business." (Internal quotation marks omitted.) In re Shonna K., supra, 77 Conn.App. 254. The Shonna K. court observed that § 46b-1 defines matters within the jurisdiction of the Superior Court deemed to be family relations matters and found that there is "no indication [in any of these statutes] that the legislature intended that the Juvenile Matters session would have a separate and distinct jurisdiction from that of the Superior Court." Id. Sections 51-164s and 51-164t, relied upon by the Shonna K. court to confirm general jurisdiction of the Juvenile Matters session, apply equally to the Family Matters session.
Indeed, the legislative history demonstrates that the purpose of the statutes creating the separate dockets was an efficiency which, in this case, would be unrealized were the plaintiff's motion to dismiss to be granted, forcing the defendant to pursue her claims in another part of the superior court system. This system in no way inhibits or limits the jurisdictional power of each of the separate courts divisions and judges.
Also of note is the discretionary nature of the transfer of matters between the divisions of the Superior Court. Section 46b-2 provides that "[a]ll proceedings involving a family relations matter shall be first placed on the family relations docket of the Superior Court; and . . . the judge before whom such proceeding is brought, may transfer such matter to the criminal or civil docket of said court if he deems that such docket is more suitable for the disposition of the case . . ."
The plaintiff's motion to dismiss counts two and three of the counterclaim is denied.
Issue II
The defendant has requested discovery concerning the number of clients and the value of all client accounts relating to the plaintiff's book of business with Smith Barney Citigroup on September 1, 1991, September 17, 1998, and December 31, 2003. These dates reflect the beginning of the alleged cohabitation period, the date of marriage and the date of the parties' separation. The plaintiff objects with respect to the earlier dates on the grounds of relevance.
Practice Book § 13-2 provides, in relevant part: "Discovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action and if it can be provided by the disclosing party or person with substantially greater facility than it could otherwise be obtained by the party seeking disclosure. It shall not be ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."
The information sought by the defendant would clearly be of assistance in the prosecution of counts two and three in this action. Counts two and three aside, the parties agree that the court has wide discretion under § 46b-81 to award all property to one or the other spouse and to consider the contribution of each party to the acquisition, preservation or appreciation in value of their respective estate. The defendant, however, takes the position that the court should not consider the cohabitation period in determining property distribution and alimony. He argues that "[a]wards of damages and/or division of nonmarital property do not fall within the auspices of Chapter 815j. Therefore, the defendant is not entitled to recover in a dissolution action for acts and/or omissions allegedly occurring during a period of cohabitation . . ." This court disagrees.
Sections 46b-81 and 46b-82, concerning the distribution of property and the award of alimony, respectively, fall within chapter 815j.
The Connecticut "approach to property division is commonly referred to as an `all-property' equitable distribution scheme . . . It does not limit, either by timing or method of acquisition or by source of funds, the property subject to a trial court's broad allocative power." (Citation omitted.) Krafick v. Krafick, 234 Conn. 783, 792, 663 A.2d 365 (1995). It is helpful to look to the "general principles that govern this area of the law . . . Because an action for dissolution of marriage is a creature of statute, it is sometimes assumed that the statute not only creates the grounds for relief but also circumscribes the remedy. Although created by statute, a dissolution action is essentially equitable in nature . . . [I]n the exercise of its inherent equitable powers [the court] may also consider any other factors [besides those enumerated in the statute] which may be appropriate for a just and equitable resolution of the marital dispute." (Citations omitted; internal quotation marks omitted.) Sands v. Sands, 188 Conn. 98, 105, 448 A.2d 822 (1982), cert. denied, 459 U.S. 1148, 103 S.Ct. 792, 74 L.Ed. 997 (1983).
With respect to the assignment of property pursuant to § 46b-81, our Supreme Court has explained: "There are three stages of analysis regarding the equitable distribution of each resource: first, whether the resource is property within § 46b-81 to be equitably distributed (classification); second, what is the appropriate method for determining the value of the property (valuation); and third, what is the most equitable distribution of the property between the parties (distribution)." Krafick v. Krafick, 234 Conn. 783, 792-93, 663 A.2d 365 (1995). The information sought appears to concern the proper treatment of the plaintiff's book of business with Smith Barney Citigroup under all three stages of the equitable distribution scheme.
The parties agree and this court concurs that the defendant should not have "two bites of the apple" — in other words, the contributions during the cohabitation period should not be considered during division of the property pursuant to the marriage dissolution and also under separate claims for unjust enrichment and breach of promise. The trial court may consider the period of cohabitation during which the defendant allegedly made substantial contributions to the success of the plaintiff's business operations either under breach of promise and unjust enrichment claims; or, the trial court may take it into account in a dissolution proceeding which considers the entire estate of each party, including the plaintiff's business operations, as well as the contribution of each in the acquisition or appreciation in value of their respective estates.
To the extent that the claims for unjust enrichment and breach of promise remain before the court, and to the extent that the cohabitation period may be considered by the court in determining property acquisition and distribution, the defendant's discovery request is granted.
Orders
The plaintiff's Motion to Dismiss is denied. The defendant's discovery request is granted.
The trial court has broad discretion to consider contributions made during the premarital cohabitation as a factor in assigning assets or awarding alimony. As such, discovery of information during this cohabitation period is appropriate.
Prestley, J.