Opinion
No. FA09 4011049-S
September 10, 2010
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS
The defendant has moved to dismiss the above action, pursuant to Practice Book § 10-30, for lack of subject matter jurisdiction. Evidence was presented concerning this motion on August 9, 2010.
BACKGROUND
On February 1, 2009, the plaintiff, Yasmeen Farid, commenced the present divorce action by service of process on the defendant, Tariq Farid. In her complaint, the plaintiff alleged the following facts. The two parties were intermarried on September 8, 1991 in Sahiwal, Pakistan. One of the parties to this marriage has been a resident of Connecticut for at least twelve months preceding the date of the filing of this complaint. The marriage of the parties has broken down irretrievably, wherefore, the plaintiff claims: (1) a dissolution of the marriage, (2) orders concerning child custody and visitation, (3) an equitable division of the marital income, (4) an equitable division or assignment of the marital property and debt, (5) alimony, (6) restoration of her maiden name to Aslam, and (7) such other equitable relief as the court deems just and proper.
On February 23, 2009, the defendant filed a motion to dismiss, and memorandum of law in support thereof, on the ground that this court lacks subject matter jurisdiction because a marriage does not exist between the plaintiff and the defendant. In his memorandum of law, the defendant argues that he initiated divorce proceedings against the plaintiff in Pakistan on December 31, 2007, which were finalized on October 3, 2008. The defendant contends that he was personally present in Pakistan for the proceedings and that the plaintiff consented to the Pakistani court's exercise of jurisdiction over the marriage.
FINDINGS AND LAW CT Page 17885
The defendant initiated divorce proceedings against the plaintiff in Pakistan on December 31, 2007. At that time, the plaintiff was residing in Connecticut with the couple's three minor children. The defendant's domicil was Connecticut, although, he did travel to Pakistan for business and family matters. The plaintiff denies ever receiving any paperwork associated with said filing. The defendant had no proof of notice of said proceedings to the plaintiff. The defendant gave the court, while filing the divorce petition, the address of the plaintiff's parents in Pakistan. The court finds the plaintiff did not receive notice of the divorce proceedings filed in Pakistan. The divorce decree obtained by the defendant in Pakistan did not address the custody of the children, child support, alimony or any property distribution of the parties."A valid divorce judgment is a judgment in rem and is binding on all the world as to the existence of a status which is the subject of the action, that is, the status of being unmarried upon the adjudication of divorce." (Internal quotation marks omitted.) Vogel v. Sylvester, 148 Conn. 666, 670, 174 A.2d 122 (1961). "Courts of the United States [however] are not required by federal law to give full force and effect to a judgment granted in a foreign nation . . . On the other hand, judgments of courts of foreign countries are recognized in the United States because of the comity due to the courts and judgments of one nation from another. Such recognition is granted to foreign judgments with due regard to international duty and convenience, on the one hand, and to rights of citizens of the United States and others under the protection of its laws, on the other hand." (Citations omitted.) Litvaitis v. Litvaitis, 162 Conn. 540, 544-45, 295 A.2d 519 (1972). "When so recognized, a decree of divorce granted in a foreign country will be given full force and effect not only as to the determination of the parties' status, but also with respect to alimony and child support." Bruneau v. Bruneau, 3 Conn.App. 453, 455, 489 A.2d 1049 (1985). There are a number of exceptions, however, to a court's application of the principle of comity, most notably, lack of jurisdiction and denial of due process of law. See Litvaitis v. Litvaitis, supra, 545.
"[W]here there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court or in the system of laws under which it was sitting, or fraud in procuring the judgment, or any other special reason why the comity of this nation should not allow it full effect, the merits of the case should not, in an action brought in this country upon the judgment, be tried afresh, as on a new trial or an appeal, upon the mere assertion of the party that the judgment was erroneous in law or in fact." (Internal quotation marks omitted.) Yoder v. Yoder, 31 Conn.Sup. 344, 346, 330 A.2d 825 (1974).
With regard to whether a court has jurisdiction, "[t]he traditional requisite for subject-matter jurisdiction in matrimonial proceedings has been domicil . . . Regardless of its validity in the nation awarding it, the courts of this country will not generally recognize a judgment of divorce rendered by the courts of a foreign nation as valid to terminate the existence of a marriage unless, by the standards of the jurisdiction in which recognition is sought, at least one of the spouses was a good faith domiciliary in the foreign nation at the time the decree was rendered." (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 545-46.
"To constitute domicil, the residence at the place chosen for the domicil must be actual, and to the fact of residence there must be added the intention of remaining permanently; and that place is the domicil of the person in which he has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with the present intention of making it his home . . ." (Internal quotation marks omitted.) Rice v. Rice, 134 Conn. 440, 445-46, 58 A.2d 523 (1948), aff'd, 336 U.S. 674, 69 S.Ct. 751, 93 L.Ed. 957 (1949). "[T]his intention must be to make a home in fact, and not an intention to acquire a domicil." (Internal quotation marks omitted.) Id., 447. "Where . . . it becomes highly advantageous to the claimant temporarily to feign an intention to become a resident for only a brief time, in order to accomplish other ends, his claim of intention will be scrutinized and weighed like any other evidence in the light of his conduct and all the circumstances surrounding it." Id., 448. Moreover, "[a] person may have . . . only one domicil at any one time." Smith v. Smith, 174 Conn. 434, 439, 389 A.2d 756 (1978). "[A] former domicil persists until a new one is acquired . . . Therefore proof of the acquisition of a new domicil of choice is not complete without evidence of an abandonment of the old." (Citations omitted; internal quotation marks omitted.) Rice v. Rice, supra, 446.
In Litvaitis v. Litvaitis, supra, 162 Conn. 546, the seminal case concerning comity in foreign divorce decrees, our Supreme Court affirmed the trial court's refusal to recognize a Mexican divorce decree on the ground that the defendant was not a domiciliary of the Mexican state because he "went to Mexico solely for the purpose of securing a divorce and that he intended to return to Connecticut." More recently, the Superior Court has noted that temporary residence does not constitute a change in domicil when there is no intent to remain. See Nirookh v. Aburabei, Superior Court, judicial district of New Haven at Meriden, Docket No. FA 09 4012235 (May 25, 2010, Burke, J.) [ 49 Conn. L. Rptr. 877] (concluding that defendant was not domiciliary of Jordan where defendant testified that he was looking for work in both Jordan and United Arab Emirates); see also Maklad v. Maklad, Superior Court, judicial district of New Haven, Docket No. FA 00 0443796 (January 3, 2001, Alander, J.) ( 28 Conn. L. Rptr. 593, 594) ("Given the defendant's strong ties to Connecticut and his written statement that his absence would be temporary, . . . the defendant did not intend to permanently reside in Egypt . . .").
A recent decision of the Superior Court has applied practical recognition for the limited purpose of recognizing a Mexican divorce decree without accepting the foreign court's orders related to financial settlements or child custody. See Hillis v. Hillis, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA 00 0179465 (February 19, 2003, Shay, J.) ( 34 Conn. L. Rptr. 232). In applying limited practical recognition, the court noted that "no credible evidence was introduced that the Mexican court had before it the financial affidavits of the parties, or other evidence of their finances, so as to enable it to inquire into the financial resources and actual needs of the parties, much less any evidence of their fitness as parents," and that therefore, "the necessary full and searching inquiry was not conducted by the Mexican court." (Internal quotation marks omitted.) Id., 234.
With regard to whether a court has complied with the requirements of due process, "[i]t is the settled rule of [Connecticut], if indeed it may not be safely called an established principle of general jurisprudence, that no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable opportunity to appear and be heard . . . It is fundamental in proper judicial administration that no matter shall be decided unless the parties have fair notice that it will be presented in sufficient time to prepare themselves upon the issue." (Citations omitted; internal quotation marks omitted.) Hasbrouck v. Hasbrouck, 195 Conn. 558, 559-60, 489 A.2d 1022 (1985). "[T]he failure of a court to comply with this requirement of notice is a serious breach of a fundamental requirement of due process of law." Winick v. Winick, 153 Conn. 294, 299, 216 A.2d 185 (1965). "In cases in which a divorce decree was issued in a foreign court without one party's knowledge or consent, Connecticut courts have refrained from recognizing the foreign divorce decree under comity." Nirookh v. Aburabei, supra, Superior Court, Docket No. FA 09 4012235 (concluding that plaintiff was denied due process because she received notice of divorce decree after it had been rendered even though it had not yet been finalized); see Maklad v. Maklad, supra, 28 Conn. L. Rptr. 593; see also Jimenez v. Jimenez, Superior Court, judicial district of New Haven, Docket No. FA 06 4020114 (September 29, 2006, Frazzini, J.).
For the aforementioned reasons, the defendant's motion to dismiss is denied.