Opinion
No. KNO FA 11-4115413S
February 15, 2011
Memorandum of Decision re Plaintiff's Motion to Strike (106)
A review of the record reveals that the plaintiff wife initiated these proceedings for dissolution of marriage with a complaint dated January 10, 2011 alleging that the marriage has broken down irretrievably. The defendant appeared and filed an answer admitting all of the allegations of the plaintiff's complaint, including the allegation that the marriage had broken down irretrievably. The defendant's cross complaint alleged in Count one, irretrievable breakdown, in Count two, abandonment and in count three, adultery.
The plaintiff filed a motion to strike counts two and three of the defendant's cross complaint alleging that they are legally insufficient to state a claim upon which relief can be granted as the defendant has admitted that the marriage has irretrievably broken down. The plaintiff argued further that those additional grounds are immaterial, unnecessary, scandalous, and impertinent. While the plaintiff admits that these facts may be relevant when the court ultimately determines issues of alimony and property distribution, they are unnecessary as pleadings. The parties appeared for oral argument on February 14, 2011. Practice Book § 25-16 states:
(a) Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint or cross complaint, or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any claim for relief in any such complaint or cross complaint, or (3) the legal sufficiency of any such complaint or cross complaint, or any count thereof, because of the absence of any necessary party, or (4) the joining of two or more causes of action which cannot properly be united in one complaint or cross complaint, whether the same be stated in one or more counts, or (5) the legal sufficiency of any answer to any complaint or cross complaint, or any part of that answer contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
"A motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court." Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).
[A] plaintiff can [move to strike] a . . . counterclaim." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978). "[A] counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action . . . A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim." Fairfield Lease Corp. v. Romano's Auto Service, 4 Conn.App. 495, 496, 495 A.2d 286 (1985).
The plaintiff cited two cases in support of its position. In Christoni v. Christoni, 156 Conn. 628 (1968), the court held that there was no error when the trial court, hearing consolidated actions between the spouses (one seeking a divorce and the other seeking an order of indemnification) entered judgment for the plaintiff without making a specific finding as to whether the dissolution was entered on the grounds of intolerable cruelty or adultery. The court held that where more than one ground for a divorce is claimed and one ground is proven, it is immaterial whether or not an additional ground may also exist.
In Hollingsworth v. Hollingsworth, 180 Conn. 212 (1980), the court granted dissolution finding that the marriage had broken down irretrievably but not on the grounds of intolerable cruelty. The court does not believe that either case supports the plaintiff's position.
In denying the motion to strike, the court envisions a possible scenario wherein the plaintiff fails to proceed to dissolution and the defendant goes forward on his cross complaint. He may very well need or desire alternative theories upon which to proceed to dissolution and his three-count complaint would serve that purpose. Moreover, by pleading the alternative theories, the plaintiff is more than on notice of the defendant's allegations.
For the foregoing reasons a motion to strike is denied.