Summary
holding that court did not abuse discretion in granting plaintiffs' oral motion to amend complaint
Summary of this case from Burton v. City of StamfordOpinion
(4457)
The plaintiff, alleging that she had been domiciled in this state prior to her marriage and had returned with the intention of remaining, sought, one month following her return, to dissolve her marriage to the defendant. One year later, at trial, she was permitted to amend her complaint to allege that she had resided in the state for at least one year. The trial court rendered judgment dissolving the marriage, and the defendant appealed to this court. Held: 1. The defendant's claim that the trial court lacked jurisdiction because the allegations of residency in the plaintiffs original complaint could not be proved was unavailing; that court was authorized by statute ( 46b-44 [c] [1]) to render the dissolution decree because the plaintiff had been a resident of the state for at least one year prior to its issuance. 2. The trial court did not abuse its discretion in allowing the plaintiff to amend her complaint; that amendment merely expanded upon the facts alleged in order to support that court's final jurisdiction to grant the decree.
Argued February 11, 1987
Decision released April 28, 1987
Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Litchfield and tried to the court Pickett, J.; judgment dissolving the marriage and granting certain other relief, from which the defendant appealed to this court. No error.
Patrick J. Wall, for the appellant (defendant).
Susan Dixon, with whom was Robert G. Girard, assistant attorney general, for the appellee (plaintiff).
The issues of this dissolution action are whether the trial court erred in failing to dismiss the cause of action for lack of subject matter jurisdiction and in subsequently allowing an oral amendment on the day of trial to allege that the plaintiff had been residing in this state for one year since the date of the filing of her complaint. The defendant's argument is that even though the plaintiff had established and maintained residency in this state, her action should have been dismissed prior to the elapse of one year because the jurisdictional allegations of her original complaint as earlier amended could not be proved. Those allegations tracked the statutory language of General Statutes 46b-44 (c) (2) and (3).
The parties were married in Cardiff, Wales, in 1974. They were domiciled with their five minor children in the Republic of Ireland before the plaintiff's return to this country. After returning to this country, the plaintiff, along with her five children, established their residence in Connecticut in June, 1984. In July, 1984, the plaintiff commenced this action by filing a complaint seeking a dissolution of the marriage, alleging that she was domiciled in this state prior to her marriage and returned to this state, with the intention of permanently residing in it. An amended complaint of October, 1984, added the allegation that the cause for the action arose subsequent to her removal to this state.
The attorney general was a party to the action and adopted the plaintiff's brief.
The defendant answered, and thereafter filed various motions, as well as a counterclaim. The counter-claim was subsequently withdrawn, a motion to dismiss for lack of personal jurisdiction was not acted on, and an amended motion to dismiss grounded on the alleged failure to satisfy General Statutes 46b-44 was denied without prejudice on November 9, 1984, and denied on March 11, 1985. The complaint was further amended orally on the day of trial with the permission of the court, to allege that the plaintiff had been residing in this state for one year prior to the date of the decree of dissolution. The court thereafter rendered its final judgment on July 17, 1985.
The defendant claims that the plaintiff's initial factual allegation which invoked the court's jurisdiction, that she was domiciled in this state at the time of the marriage and returned with the intention of residing here permanently, was not supported by the evidence. The trial court agreed that this allegation was unsupportable. See General Statutes 46b-44 (c) (2).
The trial court did not specifically rule in its memorandum of decision as to whether the plaintiff's amended complaint which alleged that the cause for the dissolution of the marriage arose after either party moved into the state was supported by the evidence. See General Statutes 46b-44 (c)(3). It need not have. By the time the hearing on the dissolution was held, the plaintiff had satisfied General Statutes 46b-44 (c)(1) because she had been a resident of this state for at least twelve months since the filing of her action.
The defendant's jurisdictional argument appears to rest on his belief that the "plaintiff had entered the court based on jurisdictional allegations that were not true." The plaintiff entered the jurisdictional door of the court because she had established a residence in this state. See General Statutes 46b-44 (a); Sauter v. Sauter, 4 Conn. App. 581, 582-83, 495 A.2d 1116 (1985). She left the courthouse door with a judgment of dissolution because she had complied with General Statutes 46b-44 (c)(1).
The defendant's second claim is that it was error for the court to permit the plaintiff to amend her complaint to allege that the court had subject matter jurisdiction sufficient to grant the decree of dissolution. The amendment to the complaint was made in accordance with Practice Book 176 which allows a party to amend a complaint with leave of the court. The power to order such amendments in dissolution actions to ensure the pleading of facts necessary to give the court jurisdiction is specifically accorded by Practice Book 454.
To reverse a ruling of the trial court allowing an amendment to the pleadings requires that the defendant make a "clear showing of abuse of discretion." Saphir v. Neustadt, 177 Conn. 191, 206, 413 A.2d 843 (1979). The court here had subject matter jurisdiction over the action because the plaintiff was a resident of Connecticut at the time she instituted the action. General Statutes 46b-44 (a). Jurisdiction to grant a decree of dissolution cannot be determined, however, until the date of the decree. Sauter v. Sauter, supra, 583. The amendment permitted by the court, alleging that the plaintiff had resided in this state for one year prior to the date of dissolution, was not an allegation of a new cause of action. That amendment merely expanded upon the facts alleged in order to support the court's final jurisdiction to grant the decree: See Saphir v. Neustadt, supra, 206-207; Sauter v. Sauter, supra. We cannot find any abuse of discretion by the court.