Opinion
No. FA 08-4040460S
April 15, 2009
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS (#101)
The plaintiff brought this action for annulment of the parties' marriage with a return date of October 28, 2008. The defendant then filed a motion to dismiss claiming that the court "lacks jurisdiction to grant an annulment . . . as the marriage of the parties is not void or voidable under the laws of this state." The parties appeared for hearing on that motion, the plaintiff representing herself and defendant appearing with counsel, on February 3, 2009, after which the matter was continued to March 10, 2009. The court has heard testimony from the plaintiff, and also received affidavits from both parties that they agreed the court could consider on this motion.
A motion to dismiss is the proper procedural vehicle to challenge the court's jurisdiction over the person or subject matter. See Practice Book Section 25-13. Since the writ here was properly served, the issue raised by defendant is not one of personal jurisdiction, but subject matter jurisdiction. Under our rules of practice, once the question of subject matter jurisdiction is raised, the court must address that issue before going on to any other matters in the case. Commissioner of Transportation v. Rocky Mountain, LLC, 277 Conn. 696, 703, 894 A.2d 259 (2006) (stating that "the question of subject matter jurisdiction is a question of law . . . and, once raised, either by a party or by the court itself, the question must be answered before the court may decide the case . . ."). "[J]urisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 17, 848 A.2d 418 (2004). As our Supreme Court explained in Kim v. Magnotta, 249 Conn. 94, 104, 733 A.2d 809 (1999), however, the question of subject matter jurisdiction is not the same as whether a court has "substantive authority to adjudicate the merits of the case before it."
Practice Book Section 25-13, captioned "Grounds on Motion to Dismiss," provides in pertinent part as follows: "(a) The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process and (5) insufficiency of service of process."
The defendant's motion to dismiss asserts that the grounds claimed by the plaintiff in her complaint, as supplemented by her testimony and affidavits, do not meet the criteria for an annulment under General Statutes § 46b-40(b), which provides that "(b) An annulment shall be granted if the marriage is void or voidable under the laws of this state or of the state in which the marriage was performed." Since this court has substantive authority to adjudicate whether to annul a marriage, the defendant's motion does not challenge either subject matter or personal jurisdiction. While it appears that plaintiff's complaint may not plead a sufficient basis for an annulment, the defendant's challenge to the complaint is thus not one properly raised by a motion to dismiss claiming lack of jurisdiction. A challenge to the legal sufficiency of the allegations of a complaint to achieve the relief sought is more properly brought by a motion to strike, as provided in Practice Book Section 25-16 which states as follows:
Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint or cross complaint, or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any claim for relief in any such complaint or cross complaint, . . . that party may do so by filing a motion to strike the contested pleading or part thereof.
(One essential difference between a motion to dismiss and a motion to strike is that a complaint, once dismissed, may not be amended, but if a motion to strike a complaint is granted the plaintiff may plead over and file an amended complaint. See Practice Book § 25-21.)
Practice Book Section 25-21, captioned "Substitute Pleading; Judgment," provides as follows: "Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint or cross complaint has been stricken, and the party whose pleading has been so stricken fails to file a new pleading within that fifteen-day period, the judicial authority may upon motion enter judgment against said party on said stricken complaint or cross complaint."
The motion to dismiss is therefore denied.
A new case management date is scheduled for Monday, May 4, 2009.