64 CBJ 455. Connecticut Family Law Jurisdiction.

• Author: By CYNTMA C. GEORGE AND BARBARA M. SCHELLENBERG (fn*)

Connecticut Bar Journal

Volume 64.

64 CBJ 455.

Connecticut Family Law Jurisdiction

455Connecticut Family Law JurisdictionBy CYNTMA C. GEORGE AND BARBARA M. SCHELLENBERG (fn*)One of the most complex areas for the matrimonial law practitioner is jurisdiction. With our mobile society, it is not infrequent that, when a couple separates, one of them becomes a resident of a different state. When a dissolution of marriage action is brought after the separation, numerous jurisdictional issues arise. How does the court get personal jurisdiction over the nonresident spouse? What is required for a court to have subject matter jurisdiction? What if actions are brought in two different states at the same time? Does the court retain jurisdiction of post dissolution matters? Is a Mexican divorce valid? This article will examine and discuss how Connecticut courts have dealt with these issues. (fn1)

1. Subject Matter Jurisdiction

   1. Dissolution of Marriage

      Before a court may hear any case, it must have jurisdiction over the subject matter involved. Subject matter jurisdiction must be considered in every dissolution case because the parties may not waive this type of jurisdiction, (fn2)A party, or the court on its own motion, may move to dismiss any action for lack of subject matter jurisdiction even after judgment is rendered. (fn3)

      456Jurisdiction over dissolution of marriage actions is governed by statute. (fn4) CONN. GEN. STAT. § 46b-42 gives the Superior Court exclusive jurisdiction of all complaints seeking a decree of dissolution of marriage. CONN. GEN. STAT. § 46b-44 further defines the court's jurisdiction by stating that a complaint may be filed after either party has established residence in the state. (fn5) Section 46b-44 also outlines the residency requirements that must be met before the court may enter a decree of dissolution: 456Decree dissolving a marriage or granting a legal separation may be entered if: (1) one of the parties of 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; or (2) one of 9-e arties was domicile 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 for the dissolution of the marriage arose after either party moved into this state. (fn6)

      Although § 46b44(c) (1) and (2) explicitly state that residency for twelve months preceding the date of the filing of the complaint or the date of the decree is all that is required before the decree may enter, the Connecticut Supreme Court has interpreted this language to mean that both "substantially continuous residence" and "domicile" are required before the decree may enter. (fn7)

      However, the Court also has found that only residence is required for awards of alimony and support pendente lite. (fn8) The Court bases the distinction between temporary and permanent orders on the fact that it is impossible to ascertain whether the trial court has jurisdiction to grant the decree based on one year's domicile and residence prior to the date of the decree. According to the Court, the legislature must have included the term, 11 residence," in § 46b44 to deal with this problem, thereby allowing the court to grant temporary relief in advance of the final residency and domicile determination.

      The Appellate Court interpreting LaBow held that subject matter jurisdiction can only be determined at the time of the final hearing. (fn9) In Sauter, the parties were married in Vermont and moved to New York where the defendant resided at the time she commenced the dissolution action. The plaintiff resided in Connecticut and commenced a dissolution action there three months later. The trial court in Connecticut dismissed the action

      457brought by the plaintiff because of the prior pending New York action and because the court lacked subject matter jurisdiction when neither party was domiciled in Connecticut. The Appellate Court reversed and remanded for further proceedings, holding that subject matter jurisdiction must be determined at the final hearing. (fn10)

      The elements of domicile are actual residence coupled with the intention of permanently remaining. (fn11) The intention must be to make a home at present, not at some time in the future. (fn12) In Adame, the plaintiff was employed in New York as a nonresident taxpayer, living in hotels and apartments. She returned to her home in Connecticut in between jobs, kept and registered her car in Connecticut and paid taxes from her address in Connecticut, although she voted in New York. She later married in Connecticut, lived in New York with her husband and returned to Connecticut prior to filing the lawsuit. Despite the plaintiffs limited connection with Connecticut, the Court found that the state had been her domicile at the time of the marriage and that she had reacquired her domicile prior to commencement of the lawsuit by returning to Connecticut with the intention of remaining permanently. (fn13)

      Facts suggesting domicile often include such things as the party's maintaining a residence and bank accounts in Connecticut, voting in Connecticut and paying taxes using a Connecticut address. (fn14) However, the court may find that a party is a Connecticut domiciliary even if many of these indicia are missing. In Cugini v. Cugini, (fn15) the plaintiff registered her car in Rhode Island, showed a Rhode Island address on that registration, registered her children in school in Massachusetts and had Western Union money orders payable to her in California, all shortly before she came to Connecticut. She testified that she resided in

      458Connecticut more than a year before filing the complaint. The Court found that one may have more than one residence and the fact that the plaintiff resided in Connecticut with the intent to remain was the foundation of jurisdiction. (fn16)

      If the party resides in Connecticut temporarily, however, such as for vacations, then the court will not find Connecticut to be his domicile. In Craig v. Craig, (fn17) the plaintiff used his parents' summer home in Connecticut for vacation visits. Upon his discharge from the service, he gave his parents' home in New York as his future mailing address and resided out of Connecticut most of the time. He did not vote in Connecticut, maintain bank accounts in the state or pay taxes from a Connecticut address. The court found he did not have the intention of remaining permanently in Connecticut at the relevant time period and consequently, that the trial court lacked jurisdiction. (fn18)

   2. Continuing Jurisdiction

      The court can reserve final judgment on financial matters to a later date if the parties' financial status is in flux. (fn19) In Walsh the parties agreed to continue living together after the dissolution and to share expenses. The stipulation was approved by the Court 11 without prejudice to either party['s]," reopening the matter in the future. The Court found that the trial court did not err when two years later it ordered the defendant to pay the plaintiff alimony.

2. Personal Jurisdiction

   1. Dissolution of Marriage

      In addition to subject matter jurisdiction, the trial court must have jurisdiction over the parties before it may proceed to hear the case or enter binding orders. Unlike subject matter jurisdiction, however, the party (usually the defendant) may waive any defect in personal jurisdiction and voluntarily submit to the court's jurisdiction. (fn20)

      459If the defendant is domiciled in Connecticut, then service of process made by manual delivery by a sheriff to the defendant personally or at the defendant's usual place of abode is sufficient to confer personal jurisdiction. (fn21)

      In Smith, service of process was left at the defendant's apartment. The Court held that abode service, even while the defendant was traveling out of state, was sufficient to confer personal jurisdiction to grant a judgment of legal separation and also for alimony and counsel fees.

      Connecticut has a long-arm statute which gives the court jurisdiction to grant a dissolution of marriage when the defendant is a nonresident. (fn22)

      The plaintiff may obtain an order of notice from the court. (fn23) However, under the statute, actual notice is not necessary for the granting of a dissolution of marriage. Furthermore, the court has the power to attach the defendant's property if it is located within the state, and to subject that property to judgment. (fn24)

      460The constitutional due process standard for determining whether the court may exercise jurisdiction over a person is the well-known "minimum contacts" standard that the U.S. Supreme Court articulated in International Shoe Co. v. Washington. (fn25) Connecticut courts specifically have adopted this rule, stating that all assertions of state court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny, and that those standards require that the defendant have certain minimum contacts with Connecticut such that the maintenance of the suit does not offend "traditional notions

      460of fair play and substantial justice." (fn26).

      In Hodge, the defendant husband was a nonresident of Connecticut, but owned real estate in the state. The wife, a Connecticut resident, brought an action to dissolve the marriage and sought a transfer of the husband's interest in the property to her...