Opinion
No. FST FA 07-4011145 S
June 5, 2008
MEMORANDUM OF DECISION
This matter has come before the court for a dissolution of the marriage between the parties and attendant relief. As the trial unfolded, questions of subject matter jurisdiction arose. Counsel for both parties urged the court to find subject matter jurisdiction pursuant to Conn. Gen. Stat. § 46b-44(c)(2). After brief argument on the record, counsel argued that, alternatively, jurisdiction could be found under Conn. Gen. Stat. § 46b-44(c)(3) and the plaintiff orally amended (without objection) his complaint consistent therewith. The case was tried to completion on April 15, 2008. On April 24, 2008, the court issued an order inviting the parties to submit briefs on the issue of subject matter jurisdiction, particularly regarding Conn. Gen. Stat. § 46b-44(c)(3), on or before May 15, 2008.
The following facts are relevant to the disposition of the subject matter jurisdiction inquiry. The plaintiff, Michael Weiss, currently (at the time of trial) resides in Hong Kong. The defendant, Miaojing Zhu, currently (at the time of trial) resides in New York. The parties are each domiciled at their respective places of residence. Neither party has another residence. Zhu was born and raised in the People's Republic of China. Weiss was born and raised in Pennsylvania. The parties met while they were in Beijing, China. They both came to Massachusetts to pursue graduate studies. While they were living in Massachusetts, they were married. Their marriage took place in Pennsylvania on June 11, 1995. In 1998, they moved to New York. In 2005, they moved to Connecticut where they lived for less than a year. At the end of December 2005, Weiss and Zhu moved to Hong Kong.
The parties often argued during the marriage; the frequency of their quarrelling increased while they lived in Hong Kong. The plaintiff was at work for very long hours. The defendant was unhappy with his work hours and the amount of time that he was away from home. At one point shortly before Zhu left Hong Kong, she thought that the plaintiff was having an affair because she found a hotel receipt among his belongings. Weiss denied he was having an affair; he asserted he stayed at the hotel rather than come home from work in the early hours of the morning to be harangued by the defendant about his work hours.
Both parties remained in Hong Kong together until the defendant decided in September 2006 that she was going to return to the United States. She was pregnant with the parties' second child. She wanted the whole family to move back but the plaintiff declined. He wanted to remain in Hong Kong because of his commitment to the employment project he had taken on there. In October 2006, Zhu moved to Connecticut. The plaintiff had taken her to the airport for her flight back. As she was leaving, he told her that he felt free without her and that he did not want to repair their relationship. At that point it was his view that the relationship could not be salvaged.
When Zhu moved to Connecticut, she intended to permanently reside there. She was accompanied by the parties' first child and she brought virtually all of the family furniture with her from Hong Kong to Connecticut. In late December 2006, Weiss came to Connecticut to be present for the birth of the parties' child. He remained in Connecticut for less than one week. While he was in Connecticut, he moved some of the marital funds from joint accounts into his name alone. He returned to Hong Kong at the end of December 2006. He desires to live in Hong Kong, and has maintained it as his residence to the present time, as indicated above.
Before Weiss went back to Hong Kong, Zhu once again asked him to move back to the United States to be with the family. He declined. Zhu then offered to move back to Hong Kong to be with him. While he did not refuse her, Weiss made clear that it would be fruitless to do so in furtherance of the continuation of the parties' marriage. Weiss initiated the present dissolution of marriage action in early January 2007. He had consulted with counsel in preparation for the filing of this action sometime before he left for Hong Kong.
When the plaintiff had returned to Connecticut in October 2006, she first lived with her sister in New Canaan. A short time later she moved into an apartment which she leased for one year in Stamford. As a result of complications that arose in her child care arrangements, upon the expiration of her lease, Zhu moved from Connecticut to Scarsdale, New York in 2007. She was not in Connecticut for one year before moving to New York. In the plaintiff's brief (which the defendant adopted) it was asserted that Zhu was in Connecticut for 7 months. The evidence at trial was not entirely clear on the date.
Zhu purchased a home in Scarsdale and, since she believes the town to have excellent public schools, it is her present intention to remain there until the children of the marriage graduate high school.
The parties ask the court to find, based upon the evidence and their oral stipulation, the cause for the dissolution of marriage arose after Zhu moved to Connecticut. While the evidence would also support the notion that the causes arose prior to her moving, the court accepts the parties' stipulation that, without fault to either, their marriage's irretrievable breakdown came as a result of their conversation on Weiss's return to the airport while they were both in Connecticut.
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 twelve months next preceding the date of the filing of the complaint or next preceding the date of the decree; or (2) one of the parties was domiciled in this state at the time of the marriage and returned to this state with the intention of permanently remaining before the filing of the complaint or (3) the cause of dissolution of the marriage arose after either party moved into this state. Conn. Gen. Stat. § 46b-44(c)(3).
"A complaint for dissolution of a marriage may be filed at any time after either party has established residence in this state, and a decree may be entered if 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-44. Jurisdiction to grant a dissolution is founded upon domicile; Taylor v. Taylor, 168 Conn. 619, 621, 362 A.2d 795 (1975); and the statute requires domicile plus substantially continuous physical residence. LaBow v. LaBow, 171 Conn. 433, 437, 370 A.2d 990 (1976)." Cugini v. Cugini, 13 Conn.App. 632, 635, 538 A.2d 1060 (1988).
46b-44(c)(1)
Neither party claims that this section applies inasmuch as neither of them satisfy the residency provisions herein.
46b-44(c)(2)
This subsection does not apply. Both parties were domiciled in New York at the time of the marriage. Neither party had ever been domiciled in Connecticut prior to the parties' marriage. The notion that the statutory language of domiciliary 'at the time of the marriage' means any time during the marriage, as urged by counsel is rejected. Adame v. Adame, 154 Conn. 389, 390-91 (1966).
46-44(c)(3)
The inquiry under this provision first requires the court to determine whether the cause of the dissolution of marriage arose after the defendant Zhu moved to Connecticut.
"The wife, in essence, is asking the court to accept her opinion that the marriage irretrievably broke down after she gave up all hope of reconciliation. In Connecticut, a mutual agreement between the parties is not required to reach that conclusion. See Eversman v. Eversman, 4 Conn.App. 611 (1985)." Jensen v. Jensen, 2006 Ct.Sup. 11209, 11212. The court concludes that within the meaning of the statute the defendant had moved to Connecticut in October 2006 and was domiciled here when the writ was served on her in January 2007.
It appears that the second inquiry required under this sub-section before jurisdiction is found is, if the cause for dissolution arose after moving to this State, whether residency at the time judgment is entered is needed.
The parties urge the court to conclude that it need not inquire further. They argued that the plain language of the statute has been satisfied in that the defendant was domiciled in Connecticut at the time the cause of the dissolution arose in this state. Before adopting this position of the parties, the court must determine whether there might be an absurd result if the question is answered in the negative. That is, would this reading of the statute lead to an absurd result if no residence is required at the time of judgment. Under the facts of the instant case, if Zhu had left Connecticut any time after she was served with the divorce writ to live in New York, then the parties argue this court would have jurisdiction over the matter under § 46b-44(c)(3). Indeed if Zhu had changed her domicile to New York one week after she removed herself here from Hong Kong, then Connecticut would have jurisdiction to enter the judgment, the parties would argue, though she might have only been domiciled here one or two weeks, or one or two months, because in that brief window the cause of the dissolution arose. This could not be the intent of the legislature — it is an absurd and unworkable result. It is likely that it would lead to what are coined "drive through" divorces in Connecticut. The legislative history of the statute at hand and the case law construing it in the early part of the last century confirm that this is anathema to the public policy of Connecticut.
Before 1973, Conn. Gen. Stat, § 46b-44 was reposed at § 46-35; the present one-year residency requirement was three years. In most other respects, dating back to the origin of the law in our State, the jurisdictional provisions of this statute have remained virtually unchanged.
An early 20th century case construed the statutory residence requirements as they were initially stated. Chapter 227 of the Public Acts of 1923 [the predecessor statute] provides that "if the plaintiff shall not have continuously resided in this State three years next before the date of the complaint, it shall be dismissed unless the cause of divorce shall have arisen subsequently to the removal into this State, or unless the defendant shall have continuously resided in this State three years next before the date of the complaint, and actual service shall have been made upon him." Morgan v. Morgan, 103 Conn. 189, 193, (1925). The language here is remarkably similar to the present provisions of § 46b-44(c)(3).
In a similar circumstance to the instant matter, the trial court judge, in construing the predecessor statute, found that since neither party was a resident of Connecticut at the time of the final hearing, the court lacked jurisdiction. "The situation established is simply that the plaintiff came here to stay with her sister and brother-in-law while the defendant was in the service, and, after the marital discord following his return, has left her child with them and returned to Massachusetts to live and work. That does not amount to a " removal into this state" within the meaning of § 5181. To sanction the dissolution of a marriage in our courts under such circumstances would open the flood gates to applicants for divorce from other states. Our conception of sound public policy will not countenance that course." Price v. Price, 15 Conn.Sup. 1, 3 (1947). This court finds the language of removal into this state and "moved into this state" virtually the same. The concern of providing divorces for droves of people with no sustaining ties to our state — no domiciliary indicia — who have only briefly lived in Connecticut after moving here — is not an idle one. Virtually all our sister states have residency requirements.
More recently, the Appellate Court reviewed the trial court's pendente lite dismissal of an action because neither party was domiciled in Connecticut. In that matter, there was an action pending between the parties in New York as well. The plaintiff in the Connecticut action argued that it should not have been dismissed and his domicile should have been determined at the time of trial.
The plaintiff initially argues that the court erred in dismissing the action for lack of subject matter jurisdiction because it should not have considered the question of domicile until trial. On the basis of LaBow v. LaBow, 171 Conn. 433, 370 A.2d 990 (1976), he argues that while domicile is essential to "final jurisdiction," residence alone provides jurisdiction for the filing of a dissolution complaint. We agree.
In LaBow, our Supreme Court pointed out that the term "residence" as used in our dissolution statutes has been construed by our courts to require domicile plus substantially continuous physical residence in this state for the granting of a dissolution decree. Id., at 437, 370 A.2d 990. It also noted that General Statutes (Rev. to 1977) § 46-35, the immediate predecessor of General Statutes § 46b-44 which currently sets forth the jurisdictional requirements applicable to dissolution actions, required "domicile plus substantially continuous residence in Connecticut by one of the parties for the twelve months next prior to either the filing of the complaint or the granting of the decree." (Emphasis in original.) Id. Because jurisdiction to grant a decree on the basis of one year's residence prior to the decree cannot be determined until the date of the decree, the court held that residence of one party, without a showing of domicile, is sufficient to give the court subject matter jurisdiction for the purposes of filing a complaint or for the granting of alimony and support pendente lite. Id., at 439, 370 A.2d 990. See McAnerney Schoonmaker, " Connecticut's New Approach to Marriage Dissolution," 47 Conn. B.J. 375, 379 (1973)." [footnotes from decision deleted] Sauter v. Sauter, 4 Conn.App. 581, 582-83, 495 A.2d 1116, 1117-118 (Conn.App., 1985).
That a resident would be relieved of the one-year wait if the action arose after she moved here does not eliminate the requirement that the person be a resident at the time of judgment. "Jurisdiction to grant a decree of dissolution cannot be determined, however, until the date of the decree." Carchrae v. Carchrae, 10 Conn.App. 566, 569, 524 A.2d 672, 674 (Conn.App. 1987). In the instant action, neither party is a resident of Connecticut. There is no evidence before the court upon which the court can conclude that either party is domiciled in Connecticut.
This case is clearly distinguishable from those matters in which the one-year jurisdiction had been satisfied. If the plaintiff satisfies the domicile requirements at the time the action was brought, the court does not lack jurisdiction if he or she moved out of Connecticut prior to the entry of the decree. Baker v. Baker, 166 Conn. 476, 488, 352 A.2d 277, 279 (1974). 64 Conn. B.J. 455, 472 (1990).
The defendant in his brief argues that the earlier case law regarding residency requirement was founded in our pre-1973 statutory requirements of fault as a basis for a granting of dissolution of marriage. Defendant argues that the no fault state of our law obviates the need for residency. That argument holds no water. Indeed by stipulating here to a "no fault," irretrievable breakdown that arose after defendant's move into Connecticut, the parties seek to confer jurisdiction on this court where neither party has present ties to our state, and, neither party satisfied the alternative residency requirements in the statute. This cannot be what our legislature intended.
The court concludes that it lacks jurisdiction under § 46b-44 at the time of the trial. Accordingly, the matter is dismissed.
It would appear that Hong Kong (Matrimonial Proceedings and Property Ordinance. http://m.hklii.org/hk/legis/en/ord/192) and the State of New York are competent jurisdictions to entertain a cause of action for the dissolution of the marriage of the parties. The court also notes that the parties' children have lived in New York in excess of 6 months.