Opinion
FA155011170S
12-11-2018
Ramond R. Reynolds v. Kathia G. Reynolds
UNPUBLISHED OPINION
File Date: December 12, 2018
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Diana, Leo V., J.
MEMORANDUM OF DECISION RE DEFENDANT’S MOTION TO DISMISS #284
Diana, Judge.
This dissolution of marriage action and the plaintiff’s motion for emergency ex parte order for custody commenced on March 20, 2015. When the action commenced, both parties, the plaintiff, Raymond R. Reynolds, the defendant, Kathia G. Reynolds, and the minor child of the parties, Katherine A. Reynolds, date of birth, February 11, 2009, resided in Connecticut and had done so for at least twelve months prior to the filing of the dissolution action. The parties entered into an agreement pendente lite, which the court approved on December 5, 2016. Pursuant to the order of the court on December 5, 2016, the parties agreed to joint legal custody of the minor child but allowed the defendant to take the minor child to Costa Rica and while there, the defendant was to have final decision making authority for all important decisions regarding the minor child. The plaintiff was to have two, one-hour supervised visits with the minor child prior to the defendant and child leaving to visit Costa Rica. After the plaintiff’s visitation, the court order permitted the defendant and the minor child to immediately travel to Costa Rica. The court order, however, also required the defendant mother and the child to return to Connecticut for the trial that was scheduled to start on March 7, 2017. The defendant did not return from Costa Rica, and on December 18, 2017, the trial court, Gould, J., issued an order requiring the defendant to return immediately to the United States. To date, the defendant has not returned to the United States, and in her motion to dismiss, clearly indicates that she does not intend to return with or without the minor child.
The agreement the parties entered into on December 5, 2016 is pursuant to docket entry number 191. Judge Grossman made that agreement an order of the court pursuant to docket entry numbers 191.01 and 191.02.
On page 3 of the memorandum of law filed on behalf of the defendant, it states that "Ms. Reynolds and the minor child will not be returning to the United States." On page 6 of that same memorandum of law, it states that "two of the essential parties-the defendant and the minor child-have resided in Costa Rica since December 22, 2016, are not in the United States, and will not be coming to the United States." The defendant also states that Costa Rica is the child’s home country but that is only the result of the defendant’s violation of the numerous orders of this court.
On or about June 25, 2017, the plaintiff filed suit in Costa Rica seeking the return of the child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, hereinafter, the Hague Convention. In September 2018, the Costa Rican court issued orders denying the plaintiff’s Hague Convention request for the return of the child pursuant to Article 13 of the Hague Convention. The plaintiff has correctly argued that the appeal of the Hague Convention court’s decision stays the proceedings until such time as the Costa Rican judgment is finally decided. Once raised, application of the Hague Convention must be resolved first; staying other proceedings. See Hague Convention, Art. 16, Oct. 18, 1907.
Article 13 of the Hague Convention provides: "Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that-
"After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice." Hague Convention, Art. 16, Oct. 18, 1907.
"In general, we look to the federal courts for guidance in resolving issues of federal law ... Decisions of the Second Circuit Court of Appeals, although not binding on us, are particularly persuasive." (Citations omitted.) Turner v. Frowein, 253 Conn. 312, 340-41, 752 A.2d 955 (2000). "The Hague Convention [on the Civil Aspects of International Child Abduction, hereinafter the Hague Convention] targets international child abduction; it is not a jurisdictional-allocation or full faith and credit treaty. It does not provide a remedy for the recognition and enforcement of foreign custody orders or procedures for vindicating a wronged parent’s custody rights more generally. Those rules are provided in the Uniform Child-Custody Jurisdiction and Enforcement Act." Redmond v. Redmond, 724 F.3d 729, 741 (7th Cir. 2013). In other words, the Convention does not supersede local law as to jurisdiction. Pursuant to Article 16 of the Convention, once raised, application of the Convention must be resolved first; other proceedings must be stayed. 22 U.S.C. § 9001, (1988) and Convention, Article 16. The Hague Convention, implemented legislation known as the International Child Abduction Remedies Act (ICARA), which is set forth in 22 U.S.C. §§ 9001 through 9011, (1988). The court, therefore disagrees with the parties’ position that the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is inapplicable to this case and will discuss both the applicable UCCJEA statute on forum non conveniens, as well as the common-law doctrine.
A decision from the Second Circuit provides: "The Convention is not, and cannot be, a treaty to enforce future foreign custody orders, nor to predict future harms or their dissipation. See, e.g., Redmond v. Redmond, 724 F.3d 729, 741 (7th Cir. 2013) (’The Hague Convention targets international child abduction; it is not a jurisdiction-allocation or full-faith-and-credit treaty. It does not provide a remedy for the recognition and enforcement of foreign custody orders or procedures for vindicating a wronged parent’s custody rights more generally.’); Mota v. Castillo, 692 F.3d 108, 112 (2nd Cir. 2012) (’[T]he Convention’s focus is simply upon whether a child should be returned to her country of habitual residence for custody proceedings.’). Indeed, the Convention stresses the need for, and importance of, establishing swiftly a degree of certainty and finality for children. See, e.g., Chafin v. Chafin, 568 U.S. 165, 183, 184, 133 S.Ct. 1017, 185 L.Ed.2d 1 (2013) (Ginsburg, J., concurring) (Protraction ... is hardly consonant with the Convention’s objectives.’); Blondin [v. Dubois (Blondin II) ], 189 F.3d [240, ] 244 n.1 (noting the necessity that procedural and substantive decision-making be expeditious so they do not exceed the time that the child can endure the uncertainty of the process)." Ermini v. Vittori, 758 F.3d 153, 168 (2nd Cir. 2014).
Connecticut’s version of the UCCJEA is set forth in General Statutes § 46b-115 et seq. General Statutes § 46b-115q provides: "(a) A court of this state which has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon a motion of a party, the guardian ad litem for the child or the attorney for the child, the court’s own motion or a request of another court. (b) In determining whether a court of this state is an inconvenient forum and that it is more appropriate for a court of another state to exercise jurisdiction, the court shall allow the parties to submit information and shall consider all relevant factors including: (1) Whether family violence has occurred and is likely to continue in the future and which state could best protect the parties and the child; (2) the length of time the child has resided outside this state; (3) the distance between the court in this state and the court in the state that would assume jurisdiction; (4) the relative financial circumstances of the parties; (5) any agreement of the parties as to which state should assume jurisdiction; (6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child; (7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and (8) the familiarity of the court of each state with the facts and issues in the pending litigation. (c) If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper. (d) A court of this state may decline to exercise its jurisdiction under this chapter if a child custody determination is incidental to an action for dissolution of marriage, divorce or another proceeding while still retaining jurisdiction over the dissolution of marriage, divorce or other proceeding."
"Declining jurisdiction under § 46b-115q calls for the exercise of the trial court’s discretion. Brown v. Brown, 195 Conn. 98, 109, 486 A.2d 1116 (1985). ‘By the inclusion of the word ‘may’ ... the legislature clearly intended that the inconvenient forum issue ... remain discretionary [under the act] ... as is the common-law forum non conveniens principle ... This discretion must be exercised in accordance with the overall purposes of the [act] ... which have been summarized by some courts as consisting of the elimination of ‘jurisdictional fishing with children as bait.’ (Citations omitted.) Id., 109-10. ‘A determination by the court ... that Connecticut is an inconvenient forum ... will not be reversed absent a clear abuse of discretion ... This standard of review is necessary in order to discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child.’ (Citations omitted; internal quotation marks omitted.) Id., 110." In re Natalie S., 325 Conn. 849, 861-62, 163 A.3d 1189 (2017).
The court will consider each of the above eight factors and reach a conclusion based on the statute.
(1) Whether family violence has occurred and is likely to continue in the future and which state could best protect the parties and the child
Although there have been issues raised regarding abuse, physical and sexual, to both the defendant and the child, that matter has not been fully litigated to date and thus, the court cannot reach a reasonable conclusion at this juncture as to whether there has been actual abuse. The allegations are often repeated in the pleadings and innuendoes dropped about there being a finding that the defendant and minor child were found to be the victims of trafficking. Other than dropping that information in footnotes, and making statements in her motion to dismiss, the allegations have not been litigated and determined.
(2) The length of time the child has resided outside this state
The child has resided out of the state of Connecticut for several years but that is because the defendant violated the orders of this court to return to the United States prior to trial and the defendant has clearly stated she has no intention of returning. In light of the fact that the defendant violated the orders of this court by not returning when she was ordered to do so, this court does not consider the length of time the child has resided outside of this state to be a factor in favor of finding Costa Rica to be a more convenient forum than Connecticut.
(3) The distance between the court in this state and the court in the state that would assume jurisdiction
Although there is a very large distance between this court and the court in Costa Rica, this too is of the defendant’s own making and is simply not enough to convince this court that Costa Rica should be deciding the issue of custody and visitation in the present case. The defendant’s argument to the contrary is simply drawing a legal conclusion about whether the decision of the court in Costa Rica will be upheld on appeal and the fact that the underlying court decision in the defendant’s argument somehow is a decision about custody is simply unfounded as found throughout the discussion of the issues in this case.
(4) The relative financial circumstances of the parties
Although the plaintiff is in a better financial position than the defendant to litigate custody in Costa Rica, this too would not have been an issue if the defendant had abided by the court’s order rendered December 5, 2016, to return to the United States for trial. There were also subsequent orders for the defendant to return to the United States with the child prior to the start of trial and all the delays the defendant is blaming on others are being caused by the defendant’s dilatory actions and filing of repetitive motions, such as, the current motion to dismiss.
(5) Any agreement of the parties as to which state should assume jurisdiction
There is no agreement between the parties as to which state should assume jurisdiction so this is also not a factor for this court to consider.
(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child
There is just as much, if not more, evidence in Connecticut as there supposedly is in Costa Rica. Thus, this factor also does not weigh in favor of the court relinquishing jurisdiction.
(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence
To this court’s knowledge, there is not even a custody case pending in Costa Rica, whereas this court has what it needs to decide the issue expeditiously and this court has the procedures available and necessary to receive evidence from both parties and their witnesses.
(8) The familiarity of the court of each state with the facts and issues in the pending litigation
Again, to this court’s knowledge, there is nothing pending in the Costa Rican court regarding custody, yet, there is a great deal of familiarity with the facts and issues in the pending Connecticut litigation. Thus, the plaintiff’s choice of forum, Connecticut, prevails on this basis as well.
"A court that decides to dismiss a case on the ground of forum non conveniens has jurisdiction but elects to dismiss the case and defer to another forum." Durkin v. Intevac, Inc., 258 Conn. 454, 480, 782 A.2d 103 (2001). "The common-law doctrine of forum non conveniens is an exception to the general rule that a court must hear and decide cases over which it has jurisdiction by statute or constitution, and recognizes the discretion of a court, in some few instances, where jurisdiction and venue are proper ... to dismiss a suit because the court has determined that another forum is better suited to decide the issues involved." (Citation omitted.) Sabino v. Ruffolo, 19 Conn.App. 402, 405-06, 562 A.2d 1134 (1989).
"A dismissal based on forum non conveniens does not mean that a court does not have jurisdiction." Temlock v. Temlock, 95 Conn.App. 505, 518 n.12, 898 A.2d 209, cert. denied, 279 Conn. 910, 902 A.2d 1070 (2006). The timing provisions of "Practice Book §§ 10-30 and 10-32 are inapplicable to motions to dismiss on the ground of forum non conveniens because such a motion does not contest the court’s jurisdiction." Durkin v. Intevac, Inc., supra, 258 Conn. 480.
In accordance with the court order, however, the defendant was supposed to return prior to the start of the trial scheduled to begin on March 7, 2017. The trial date was subsequently changed to a later date but the defendant never returned with the child and in her motion to dismiss on the ground of forum non conveniens, as previously stated, the defendant clearly states that she does not intend to return to the United States either with or without the minor child. See Defendant’s Memorandum of Law (Docket Entry #284), supra note 2, at 2.
As noted in Turner v. Frowein, supra, 253 Conn. 337-38, there are two overarching principles that emanate from the Hague Convention which are: (1) Signatory nations have expressed the commitment to protect children internationally from the harmful effects of their removal or retention. Thus, the Convention favors repatriation as the means of restoring the preabduction status quo and deferring parents from crossing international boundaries in search of a more sympathetic forum; and (2) as a deterrent mechanism, the success of the Convention depends on a narrow construction of its exception. See 22 U.S.C. § 9001(A)(4) (1988). Thus, a court is to proceed with an understanding that, although, in rare circumstances, the removal of a child from his or her country is justified by objective reasons, under the Convention, the home country remains the forum best equipped to adjudicate conflicts related to a child’s long-term custody and care.
Turning to the common law, the court must determine whether Costa Rica or Connecticut is the more convenient setting for addressing the custody and visitation aspects of this case to proceed. "As a common-law matter, the doctrine of forum non conveniens vests discretion in the trial court to decide where trial will best serve the convenience of the parties and the ends of justice." (Internal quotation marks omitted.) Durkin v. Intevac, Inc., supra, 258 Conn. 463-64.
In Durkin v. Intevac, Inc., supra, 258 Conn. 466, the Connecticut Supreme Court adopted "the four-step process for examining forum non conveniens claims outlined in Gulf Oil Corp. v. Gilbert, supra, 330 U.S. [501, ] 508-09, 67 S.Ct. 839, [91 L.Ed. 1055 (1947) ], and clearly set forth in Pain v. United Technologies Corp., 637 F.2d 775, 784-85 (D.C.Cir. 1980), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981), which we have stated is a useful frame of reference for the law of Connecticut. Picketts v. International Playtex, Inc., supra, 215 Conn. [490, 497, 576 A.2d 518 (1990) ]; see Union Carbide Corp. v. Aetna Casualty & Surety Co., supra, 212 Conn. [311, 319, 562 A.2d 15 1989) ]. First, the court should determine whether there is an adequate alternative forum that possesses jurisdiction over the whole case. Pain v. United Technologies Corp., supra, 784. Second, the court should consider all relevant private interest factors with a strong presumption in favor of-or, in the present case, a weakened presumption against disturbing-the plaintiffs’ initial choice of forum. Id. Third, if the balance of private interest factors is equal, the court should consider whether any public interest factors tip the balance in favor of trying the case in the foreign forum. Id. Finally, if the public interest factors tip the balance in favor of trying the case in the foreign forum, ‘the court must ... ensure that [the] plaintiffs can reinstate their [action] in the alternative forum without undue inconvenience or prejudice.’ Id., 784-85." (Internal quotation marks omitted.) Durkin v. Intevac, Inc., supra, 466.
First, in the present case, there is no question that the forum chosen by the defendant, Costa Rica, is not an adequate alternative forum that possesses jurisdiction over the whole case. In fact, the defendant is seeking to have only child custody litigated in Costa Rica. The present case is a dissolution of marriage action involving possibly alimony, distribution of property, child custody and support, as well as visitation that has been pending since March 2015.
Second, this court has considered the relevant private interest factors with a strong presumption in favor of the plaintiff’s initial choice of forum. Thereafter, the court balanced the relevant private interest factors. The factors that the court considered were: "(1) the relative ease of access to sources of proof; (2) the availability of compulsory process for attendance of unwilling witnesses, and the cost of obtaining attendance of willing witnesses; (3) the possibility of viewing the accident scene if such viewing is appropriate to the action; (4) the enforceability of a judgment; (5) the relative advantages and obstacles to fair trial; and (6) all other practical problems that make trial of a case easy, expeditious and inexpensive." In terms of the private interests; (1) the ease of access to sources of proof, if the defendant remains in Costa Rica, as she has stated she intends to do, and if she cannot get her witnesses to testify, is really the result of a self-created hardship, which simply does not weigh in her favor; (2) there is another compulsory process for getting the defendant’s witnesses to testify and that is through another Hague Convention; (3) although it may be difficult to enforce this court’s judgment in Costa Rica, there are other Hague Convention treaties available for that as well. The only advantage to having custody determined in Costa Rica is, according to the defendant, that it is going to be costly for the defendant because all her witnesses are in Costa Rica, the plaintiff has a much better income source than the defendant and can, therefore, pay for the cost of litigating from afar. This court disagrees, and if litigation must take place involving the defendant’s litigation of the custody issues, that is still not reason enough to change the plaintiff’s chosen forum. Lastly, there are no disadvantages or obstacles to the defendant getting a fair trial. Although the defendant claims all of her witness including medical professionals and teachers, are located in Costa Rica and further claims on page 6 of the motion to dismiss that Costa Rica "is the minor child’s home country" it is actually the country where the child was born. The child, however, lived in Connecticut for several years and is only back in Costa Rica due to the defendant’s failure to return to Connecticut as previously ordered by the court. The defendant, whether in Costa Rica or Connecticut, was provided with the benefit of interpreters, extensions of time for trial, and many other benefits within this court’s power to make the experience a little easier for her, even if the case ends up being litigated from Costa Rica due to the defendant’s failure to return to Connecticut despite the numerous court orders to do so. This case, especially the issues of custody and visitation, will be extremely difficult to unravel and start over somewhere else for the convenience of the defendant. It is simply not enough to change the plaintiff’s choice of forum.
Third, in keeping with the Connecticut Supreme Court’s decision in Durkin v. Intevac, Inc., supra, 258 Conn. 466, if the balancing of private interest factors is equal, the court should consider whether any public interest factors tip the balance in favor of trying the case in the foreign forum. This court does not find the private interest factors to be equal in the first place. It further finds that there are no existing public interest factors that would tip the balance of conducting the entire dissolution action, including custody of the minor child, in the foreign forum of the defendant’s choosing.
Lastly, "if the public interest factors tip the balance in favor of trying the case in the foreign forum, the court must ... ensure that [the] plaintiffs can reinstate their [action] in the alternative forum without undue inconvenience or prejudice. Id., 784-85." (Internal quotation marks omitted.) Durkin v. Intevac, Inc., supra, 258 Conn. 466. This court does not find any public interest factors that tip the analysis in favor of trying the custody portion of the case in Costa Rica. Therefore, the court need not consider whether the plaintiff’s action is ensured reinstatement in an alternative forum.
For all of the forgoing reasons, the defendant’s motion to dismiss on the ground of forum non conveniens is denied.
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence."