Opinion
No. FA 06-4020114S
September 29, 2006
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS (#110)
The defendant in this dissolution action has filed a motion to dismiss claiming lack of subject matter jurisdiction and alleging that the marriage of the parties has already been legally terminated by a divorce decree from the Dominican Republic in 1990. The plaintiff filed a written objection to the motion, and both parties appeared with counsel for hearing on August 16, 2006 and filed memoranda of law. The matter is now ready for decision. For the reasons stated below, the motion is denied.
The parties were married in the Dominican Republic in 1988 and have two minor children, ages 14 and 15 years old. The plaintiff brought this action with a return date of May 8, 2006. Served with the complaint were motions for pendente lite alimony (#101), exclusive use of the marital home (#102), maintenance of household expenses (#103), child support and custody (#104). The defendant appeared through counsel and filed an answer and cross-complaint on May 24, 2006. The plaintiff then filed a motion for declaratory judgment seeking to determine the parties' marital status and averring that the defendant had brought and obtained a divorce in the Dominican Republic "unbeknownst to plaintiff." Defendant thereafter filed the present motion to dismiss and accompanying documentation, including a copy of what purported to be a certified copy of that foreign divorce in Spanish.
A motion to dismiss is the proper method to raise lack of personal or subject matter jurisdiction in a family matter. LaBow v. LaBow, 171 Conn. 433, 436-37 (1976). Subject matter jurisdiction is the power of a court to hear and determine the cause of action presented to it. Zizka v. Water Pollution Control Authority, 195 Conn. 682 (1985). "[I]n ruling on a motion to dismiss, the trial court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Ganim v. Smith Wesson Corp., 258 Conn. 313, 326, 780 A.2d 98 (2001). "[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004).
The defendant claims that this court should, under the principles of comity, recognize a divorce judgment he obtained in the Dominican Republic in 1990. The plaintiff, on the other hand, contends that the court should not extend comity to the Dominican Republic's certification of divorce for three reasons: because (i) the divorce was obtained through procedures that denied the plaintiff due process of law, (ii) the defendant was not domiciled in the Dominican Republic at the time he obtained the divorce, and (iii) recognizing the divorce decree will offend public policy of the State of Connecticut. Based on the evidence presented at hearing on the defendant's motion to dismiss, the court finds for the plaintiff and the motion to dismiss is denied.
The law governing the recognition of divorce decrees from foreign courts is well-established. In Litvaitis v. Litvaitis, 162 Conn. 540 (1972), Our Supreme Court held that, while the full faith and credit clause of the United States constitution does not apply to judgments of foreign nations, such judgments are entitled to recognition in this state under the principle of comity. Id., 544. Although noting the respect due the decisions of foreign courts, the court held that the principle of comity "has several important exceptions and qualifications. A decree of divorce will not be recognized by comity where it was obtained by a procedure which denies due process of law in the real sense of the term, or was obtained by fraud, or where the divorce offends the public policy of the state in which recognition is sought, or where the foreign court lacked jurisdiction." Id., 545.
Evidence offered at hearing before this court established that the defendant brought a divorce action in the Dominican Republic in 1990. In addition to a certified copy of the Dominican Republic divorce decree, each party placed English-language translations of the decree into evidence. Those translations show that the plaintiff here never appeared in that action. At the time, she was living in the town of Bonao, where the parties had married and lived together before they had separated and Mr. Jimenez had moved to the United States. He then retained an attorney, who brought the divorce action in the City of Santo Domingo, 42 miles from the town where his wife lived, although there was a court in Bonao that could have granted a divorce. The court finds credible her testimony that she never knew about the divorce action while it was pending and only learned about it some years later. Mr. Jimenez testified here that notice of the divorce proceeding "was published in the newspaper," but he offered no evidence as to what newspaper or when. From his testimony to that effect, the court finds that he did not attempt to accomplish personal service or actual notice to her of the pendency of the proceedings, despite the fact that he knew where she lived. The English translations of the Dominican judgment state that a "constable" had either "summoned" (Ex. 2) or "scheduled" (Ex. 3) the wife to appear for a divorce hearing, but do not further explicate how or when.
The briefs filed by defendant's attorney argue that the plaintiff, as the one seeking to avoid comity, should have the burden of proof "to demonstrate why comity should not be accorded." (Def.'s Sup. Mem. of Law, at 2.) Neither of the cases cited for that proposition, however, support its application here. In Cresenzi v. Cresenzi, Superior Court, Family Support Magistrate Division, Judicial District of Tolland at Rockville, No. 647-04-13 (October, 26, 2004, Lifshitz, F.S.M.) ( 38 Conn. L. Rptr. 151), for example, the magistrate's written decision did make such a statement, but the magistrate also decided not to give comity to a foreign decree when the person seeking to enforce that decree did not show proper service on the other party. The case of Bruneau v. Bruneau, 3 Conn.App. 453, 455, 489 A.2d 1049 (1985) has no discussion regarding burden of proof issues.
This court finds that the plaintiff here received no actual notice of the Dominican Republic divorce proceeding. The defendant's testimony that notice was published in a newspaper does not suffice to show that she had constructive notice. It is a fundamental tenet of due process that a party be afforded notice, either actual or constructive, before a court may adjudicate that person's rights or interests. Due process requires notice and an opportunity to be heard. Fishbein v. Kozlowski, 252 Conn. 38, 50, 743 A.2d 1110 (1999) The plaintiff here had neither. The defendant is the one who brought the Dominican Republic divorce proceeding. He is the one who claims that notice was given to his wife of the proceeding by publication in a newspaper. While publication might be sufficient to show constructive notice sufficient for due process purposes to afford comity, the defendant is the only party here with knowledge about any such publication and the burden should rest on him to establish the sufficiency of that notice. Whether so holding amounts to placing the burden of proof on him, or merely shifts to him that burden after this court's finding that plaintiff had no actual notice, is no consequence. Our courts have consistently required that one claiming jurisdiction by virtue of constructive service has the burden of proof. See Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 53-54, 459 A.2d 503 (1983). Moreover, service by constructive notice is appropriate and constitutionally sufficient only where actual notice cannot be affected or where reasonable efforts to provide actual service have failed.
The court therefore finds that it should not recognize the divorce decree from the Dominican Republic because it was obtained without affording notice, an opportunity to be heard, or due process to the wife. The motion to dismiss is therefore denied.
The plaintiff's second argument for not affording comity to the decree is that defendant was not domiciled in the Dominican Republic at the time. But the plaintiff did live there, and she has cited no authority requiring both parties to reside in the jurisdiction dissolving a marriage. Under Connecticut law, residency of either party is sufficient. See, e.g., Section 46b-44(a) of the General Statutes, which provides as follows: "A complaint for dissolution of a marriage or for legal separation may filed at any time after either party has established residence in this state." Finally, the plaintiff argues that recognizing the divorce decree will offend public policy of the State of Connecticut. More specifically, she claims that the defendant should not be allowed to challenge the validity of a marriage because, two years after the Dominican decree he applied to US immigration authorities for plaintiff to come to the United States as his wife: "It cannot stand that a naturalized US citizen can bring a woman to the United States, swear to be his lawful wife, live with her as man and wife for sixteen years, and then turn around and try to absolve responsibility to her by way of some secret and ancient divorce decree." (Pl.'s Supp. Mem. of Law, at 6.) The plaintiff appears to be asking this court to invoke an analogue to the doctrine affording "practical recognition" of certain invalid foreign divorce decrees. ("Practical recognition may be accorded such decrees by estoppel, laches, unclean hands, or similar equitable doctrine under which the party attacking the decree may be effectively barred from securing a judgment of invalidity." Bruneau v. Bruneau, 3 Conn.App. 453, 456-57, 489 A.2d 1049 (1985).) In effect, she asks the court for "practical rejection" of the foreign decree on similar grounds — that the defendant obtained a divorce about which plaintiff knew nothing, misled the plaintiff into leaving her native land and relocating here in the belief they were still married, obtained her entry here under that deception, and lived with her as husband and wife for many years. She has cited no authority supporting the extension of the practical recognition doctrine to circumstances such as these. The bulwark of his argument, however, is his claim that the plaintiff had no knowledge of the "secret" Dominican divorce decree, an argument already accepted by this court as one of the bases for finding a lack of due process in the obtaining of that decree. The court thus finds no need to consider whether to adopt this novel argument.