Opinion
No. FA03-0196212
November 26, 2003
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS
The defendant has moved to dismiss this action. The grounds that may be asserted in a motion to dismiss are set forth in Practice Book § 10-31 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 claims that this court lacks subject matter jurisdiction to dissolve the marriage of the parties. She further argues that the court in Stamford, Connecticut is a forum non conveniens.
The parties were married in the Bronx, New York on June 29, 1970. Their only child, Kira, was born January 23, 1986. In November 2002, when both parties were domiciled in the Bronx, the plaintiff commenced an action for divorce in the New York State Supreme Court, County of Bronx, by filing a summons with notice. He never filed a complaint. In June 2003, the plaintiff moved his residence to Stamford, Connecticut and he filed a notice of discontinuance of the action in the New York State Supreme Court. One month after filing the notice of discontinuance in the New York action, the plaintiff commenced this action in Connecticut for the dissolution of the parties' marriage on the ground of irretrievable breakdown. Although the plaintiff's complaint prays for equitable distribution of the parties' assets and debts, in addition to a dissolution of the marriage, the plaintiff acknowledges in oral argument and in his brief that he cannot get orders dividing the parties' assets and debts until he secures personal jurisdiction over the defendant in Connecticut. A Connecticut marshal made service of the divorce writ upon the defendant by registered mail. A few weeks later, the defendant commenced an action in the Supreme Court of the State of New York, County of Bronx, seeking an annulment of the parties' marriage and other relief. Both actions are now pending.
The defendant acknowledges that the plaintiff moved to Connecticut in June 2003. She asserts that the plaintiff's motive for residing in Connecticut is expressly to take advantage of the divorce laws of Connecticut. She argues that such a base motive should not be rewarded by this state's assumption of jurisdiction. She further asserts that the plaintiff is insincere in his stated intention to continue his residence in Connecticut. She seeks a finding that the plaintiff is perpetrating a fraud upon the Connecticut court when he claims that he intends to continuing residing here.
"[W]hen the absence of jurisdiction is brought to the attention of the court, cognizance of the fact must be taken and the matter determined before it can move further in the case." Gimbel v. Gimbel, 147 Conn. 561, 566, 163 A.2d 451 (1960). "Jurisdiction involves the power in a court to hear and determine the cause of action presented to it and its source is the constitutional and statutory provisions by which it is created." C.S.E.A., Inc. v. Connecticut Personnel Policy Board, 165 Conn. 448, 456, 334 A.2d 909 (1973). "Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged." Demar v. Open Space Conservation Commission, 211 Conn. 416, 425, 559 A.2d 1103 (1989).
A Connecticut court may exercise subject matter jurisdiction on a complaint for dissolution of marriage if the plaintiff fulfills the residency requirement of the State of Connecticut and if the nonresident defendant has received actual notice that the complaint is pending. General Statutes §§ 46b-44 and 46b-46. The plaintiff's complaint alleges that he is a resident of the State of Connecticut and will have been a resident for more than twelve months next preceding the date of the decree. The plaintiff is not required to establish twelve months of residency before commencing and maintaining a divorce action. He need only prove that he has resided here for twelve months at the time of the final hearing on the dissolution of his marriage. Proof of continuous residency by the plaintiff at the conclusion of twelve months will entitle the plaintiff to proceed in the final hearing.
General Statutes § 46b-44 provides in relevant part: "Residency requirement. (a) A complaint for dissolution of marriage or for legal separation may be filed at any time after either party has established residence in this state . . . (c) A decree dissolving a marriage or granting a legal separation may be entered if: (1) one of the parties to the marriage has been a resident of this state for at least the twelve months next preceding the date of the filing of the complaint or next preceding the date of the decree."
General Statutes § 46b-46 provides in relevant part: "Notice to nonresident party. Jurisdiction over nonresident for alimony and support. (a) On a complaint for dissolution . . . if the defendant resides out of or is absent from the state or the whereabouts of the defendant is unknown to the plaintiff, any judge or clerk of the Supreme Court or of the Superior Court may make such order of notice as he deems reasonable. After notice has been given and proved to the court, the court may hear the complaint if it finds that the defendant has actually received notice that the complaint is pending . . . (b) The court may exercise personal jurisdiction over the nonresident party as to all matters concerning temporary or permanent alimony or support of children, only if: (1) The nonresident party has received actual notice under subsection (a) of this section; and (2) the party requesting alimony meets the residency requirement of section 46b-44."
The defendant may challenge the plaintiff's claim of twelve months' continuous residency at the time of the final hearing. To prevail on her motion to dismiss at this time, however, the defendant must show that the plaintiff is not now intending to reside in Connecticut for twelve months. The burden of proving an allegation of lack of jurisdiction based upon a failure of residency is upon the party making that claim. Taylor v. Taylor, 168 Conn. 619, 620-21, 362 A.2d 795 (1975); Cugini v. Cugini, 13 Conn. App. 632, 635, 538 A.2d 1060 (1988). To prove that the plaintiff is perpetrating a fraud upon the Connecticut court in the allegations of the complaint, the defendant must present persuasive evidence. The defendant has failed to meet her burden of proof in this case. The defendant has offered no evidence to support her assertion. She has failed to prove that the plaintiff does not intend to continue his Connecticut residency.
The defendant has also raised the claim of forum non conveniens. She points out that, without personal jurisdiction over the defendant, Connecticut is limited in the issues it can adjudicate. Connecticut may only address the dissolution of the marriage itself. This state will have no jurisdiction over issues of child support, custody, alimony, property and debt division, attorney fees, etc. All of the issues of custody, support, property allocation and fees may be addressed in New York State in the context of the annulment action now pending there, or in another action commenced in New York State for that purpose. The defendant, therefore, maintains that the Connecticut action is inefficient and duplicative.
The defendant's claim of forum non conveniens lacks merit because the defendant has not offered sufficient proof to establish that the continuation of this dissolution proceeding in Connecticut is so inconvenient as to warrant its dismissal. Aside from the defendant's statement in her brief and at oral argument that travel between the Bronx and Stamford is burdensome for her, she offered no other testimony or proof to support her claim. Moreover, as the plaintiff now is merely seeking a dissolution of his marriage in Connecticut, this court does not have jurisdiction to adjudicate other issues such as child support, custody, alimony, property distribution and fees, unless the defendant subjects herself to personal jurisdiction in Connecticut.
The court notes that the burden on the plaintiff if this dissolution proceeding in Connecticut is dismissed would be great because such relief is not expeditiously available to the plaintiff in New York on a no-fault basis. If the defendant does choose to subject herself to personal jurisdiction in Connecticut, so that issues beyond the dissolution of the parties' marriage can be adjudicated here, then many of her potential witnesses might have to travel to Stamford, Connecticut from New York to testify on her behalf. Nevertheless, such a decision is within her control. Otherwise, the defendant is not required to address in Connecticut these issues which might require the testimony of witnesses.
For all of the foregoing reasons, the defendant's motion to dismiss is denied.
BY THE COURT, WINSLOW, JUDGE.