Opinion
No. FA 06 4005919 S
June 1, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS #107
ISSUES
Whether the defendant's motion to dismiss the plaintiff's child custody application should be granted on the ground that the court lacks subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act because the children who are the subject of the present proceeding were the subject of a previous proceeding initiated in another state.
Alternatively, whether the court should grant the defendant's motion to dismiss the application and decline to exercise its jurisdiction because the plaintiff has engaged in unjustifiable conduct.
FACTS
On October 3, 2006, the plaintiff mother, Marie Guirlene Rufini, filed an application in the Superior Court, judicial district of Tolland, for custody of the minor children Sharina Sade Komen and Jane Axelle Komen. The defendant father is Jan Komen. The plaintiff indicates on the application form that Connecticut has the authority to decide this case and should decide it because: (1) Connecticut is the home state of the children at the time of the filing of this case; (2) the children have lived in Connecticut for the past six months; and (3) the children and at least one parent have a significant connection to Connecticut and there is substantial evidence in Connecticut concerning the children's present or future care, protection, training and personal relationships. The plaintiff asks the court for sole custody, child support, an order for the post majority educational support of the children, an order of supervised access by the defendant with the children, health insurance coverage, "unreimbursed expenses" and life insurance. The plaintiff indicates on another form that a Hague Convention proceeding between the parties in the federal District Court; Komen v. Emile, United States District Court, Docket No. 3:06-CV-00863 (D.Conn. October 13, 2006); could affect the current proceeding.
Sharina was born on March 12, 1994 and Jane was born on March 12, 1996.
On February 28, 2007, the defendant filed a motion to dismiss the child custody application on the ground that the court lacks subject matter jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), General Statutes § 46b-115 et seq., because at the time of the commencement of the present action, a proceeding concerning the custody of the children had already been commenced in another court. Alternatively, the defendant moves to dismiss on the ground that the court should decline to exercise jurisdiction under § 46b-115r(a) because of the plaintiff's unjustifiable conduct. The defendant has submitted a memorandum of law in support of the motion. On April 4, 2007, the plaintiff filed a memorandum of law in opposition.
Specifically, General Statutes § 46b-115p(a) provides: "Except as otherwise provided in section 46b-115n, if at the time of the commencement of the proceeding in this state a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction pursuant to a provision substantially similar to section 46b-115k, 46b-115l or 46b-115m, a court of this state shall not exercise jurisdiction. A court of this state may exercise jurisdiction if the proceeding in the other state has been terminated or is stayed by the court of the other state because such court has determined pursuant to a provision substantially similar to section 46b-115q, that a court in this state is a more convenient forum."
General Statutes § 46b-115r(a) provides in relevant part: "Except as otherwise provided in section 46b-115n, if a court of this state has jurisdiction under this chapter because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction . . ."
The matter was heard on the short calendar on April 16, 2007.
DISCUSSION
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted.) Missionary Society of Connecticut v. Board of Pardons and Paroles, 278 Conn. 197, 201, 896 A.2d 809 (2006). "The burden rests with the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004).
"The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001). "When issues of fact are disputed, due process requires that an evidentiary hearing be held with the opportunity to present evidence and to cross-examine adverse witnesses . . . Moreover, a court cannot make a critical factual finding based on memoranda and documents submitted by the parties." (Citation omitted.) Coughlin v. Waterbury, 61 Conn.App. 310, 315, 763 A.2d 1058 (2001).
In his memorandum of law in support of the motion to dismiss, the defendant argues that the court lacks subject matter jurisdiction under § 46b-115p(a) because in 2001, the plaintiff initiated a child custody proceeding in the court of the first instance in Tarragona, Spain, prior to the commencement of the present action. The defendant contends that by initiating the Spanish proceeding, the plaintiff submitted herself to the jurisdiction of the Spanish court and had proper notice and an opportunity to be heard. According to the defendant, the parties were married in 1996, in the Dominican Republic and the family moved to Spain in June, 1999. The defendant asserts that on February 2, 2001, the Spanish court issued a provisional order of custody to him and that on April 19, 2002, it entered a final award to him, referenced as exhibits 2 and 4 to his memorandum. As a result of these orders, the defendant claims that the Spanish court has retained jurisdiction, and occasionally, has entered enforcement orders. The defendant further claims that since the family resided in Spain, the Spanish court properly exercised jurisdiction over the child custody proceeding.
In the plaintiff's memorandum in opposition to the motion to dismiss, the plaintiff states that the parties were married on October 29, 1996 in Haiti, subsequent to the children's births.
Alternatively, the defendant argues that the court should decline to exercise jurisdiction in light of the plaintiff's unjustifiable conduct in abducting the children from Spain prior to the conclusion of the Spanish child custody proceeding that she had initiated and fleeing to the United States in February 2001. The defendant asserts that the plaintiff's conduct was unjustifiable under § 46b-115r(a) because she employed efforts to avoid detection and knew that fleeing was in derogation of the pending child custody proceeding in Spain.
Exhibit 3 purports to be a Spanish police report in response to a possible kidnapping and is dated February 2, 2001. The report indicates that upon being asked whether he could facilitate information on the address where the minors might be, the defendant supplied a Boston, Massachusetts, address and phone number. The plaintiff was telephoned and answered the call from the number where the defendant thought she might be reached. The report states: "During the telephone call she was asked about the reason she left Spain and her answer was that her permit was about to expire and was feeling insecure about her husband taking her children away from her; she also said that if it were to solve the issue of her children, she would come back to Spain."
The plaintiff counters that § 46b-115p(a) does not apply because no child custody proceeding in Spain or elsewhere was pending at the time of the commencement of the present action in October 2006. The plaintiff argues that the defendant has not offered any proof of a pending action in Spain and that the only documents that he has produced are orders that are dated 2001 and 2002, respectively. The plaintiff questions Spain's jurisdiction and claims that: (1) the defendant is a Dutch citizen who lives in the Dominican Republic; (2) the plaintiff is a Haitian citizen who lives in Connecticut; and (3) the children have dual Dutch and Dominican Republic citizenship and live in Connecticut. The plaintiff also notes that Spain is not included in the definition of "state" under § 46b-115a(15) and that Spain is not a signatory to the UCCJEA.
Section 46b-115a(15) provides: "'State' means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or possession subject to the jurisdiction of the United States."
In addition, the plaintiff argues that she has not engaged in unjustifiable conduct and that even if she has, the "best interests of the children" standard should be the controlling principle. The plaintiff claims that in August 2000, the family traveled to Boston, Massachusetts, and during that visit, on October 3, 2000, the defendant removed the children from Massachusetts to Holland without her knowledge or consent. Attached to the plaintiff's memorandum is what purports to be a Boston police department incident report wherein the officer notes that he responded to a call of kidnapping and that the plaintiff stated that the defendant had taken their two daughters out of the country. The plaintiff has also submitted what she claims to be a Massachusetts restraining order that grants her custody of the children. Therein, the Dorchester district court in Massachusetts issued a temporary abuse prevention order that awarded custody of the children to the plaintiff on November 16, 2000. The Massachusetts court then extended the order on November 30, 2000, before making it permanent on November 30, 2001. The plaintiff asserts that at some point after the defendant had left the country with the children, he removed them from Holland to Spain.
The defendant claims that the Spanish child custody order, dated April 19, 2002, indicates to the contrary: "There is evidence, in fact, that the family was living in Salou, from March though June 2000, and that in the latter date the family went on vacations, first to Holland and then to Boston. Nevertheless, the four airplane tickets . . . showing August 24th as the departure date and September 7th as the arrival date demonstrate that the spouses and their daughters were willing to return to Holland. Apparently, Mrs Guirlene had some health problems and preferred to stay in Boston for treatment, thus delaying her return trip, which was made by Mr. Komen and the two girls only. Therefore, the assertion that Mr. Komen 'kidnapped' or illegally held the custody of the minors should be discarded, as it was a planned trip and agreed by the spouses as it can be concluded from the fact that the minors were already registered in school in Salau for the school year 2000-2001."
The plaintiff explains that on January 8, 2001, she traveled to Spain for the return of her children, as evidenced by her application to the court of the first instance in Tarragona, Spain, which subsequently granted provisional custody to her on January 20, 2001. She claims that on February 1, 2001, she relied on the "court order and the advice of Spanish counsel" by leaving Spain with the children and returning to Boston. The plaintiff maintains that securing her children by enforcing a valid Spanish court order was not unjustifiable conduct by her because the defendant had wrongfully removed the children on October 3, 2000. The plaintiff further asserts that she and the children never went into hiding and that they lived openly with the plaintiff's relatives, who the defendant knew and frequently contacted by telephone. The plaintiff argues that she did not kidnap or wrongfully remove the children, but even if she did, it is in the children's best interests to remain in Connecticut and for the court to exercise jurisdiction in the present matter.
The plaintiff also argues that the parties have submitted to the court's jurisdiction pursuant to § 46b-115r(a) since they agreed in the federal district court Hague Convention proceeding that they would resolve the issues pertaining to the custody of the children in state court. Finally, the plaintiff asserts that the court should exercise jurisdiction because there are several conflicting custody orders regarding the children, all of which were issued prior to the divorce and none of which concern an access schedule, child support, post majority educational support, health insurance, life insurance or reimbursement expenses. Inasmuch as the Haitian divorce decree makes no mention of the children and is dated April 25, 2002, the plaintiff maintains that no court has heard from both parties as to the merits of their claims for custody.
Section 46b-115r(a) provides in relevant part: "[I]f a court of this state has jurisdiction . . . because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct the court shall decline to exercise its jurisdiction unless . . . [t]he parents . . . have acquiesced in the exercise of jurisdiction . . ."
This argument is without merit because subject matter jurisdiction cannot be waived by the defendant's actions.
In his memorandum in support of his motion to dismiss, the defendant does not mention a divorce between the parties.
Regardless of the existence of a divorce or the chronology of any custody orders, General Statutes § 46b-61 provides in relevant part: "In all cases in which the parents of a minor child live separately, the . . . court . . . may . . . make any order as to the custody, care, education, visitation and support of any minor child of the parties . . ." The state of Connecticut does not consider divorce as a prerequisite to a valid child custody determination and § 46b-61 "applies equally to controversies involving married or divorced parents living separately and parents who were never married." (Emphasis added.) Moll v. Gianetti, 8 Conn.App. 50, 51, 510 A.2d 1009 (1986).
The court must conduct an evidentiary hearing to determine whether it has subject matter jurisdiction. In Temlock v. Temlock, 95 Conn.App. 505, 507, 898 A.2d 209, cert. denied, 279 Conn. 910, 902 A.2d 1070 (2006), the plaintiff claimed that the trial court had improperly determined, without first conducting an evidentiary hearing, that it lacked subject matter jurisdiction to consider her post dissolution motion for modification of the parties' parenting plan. The Appellate Court reversed the judgment of the trial court and concluded "that the court improperly determined that it lacked jurisdiction because it failed to afford the plaintiff a trial-like hearing." Id., 523. The court reasoned that whether the trial court had jurisdiction depended on "certain issues of fact, including, whether Connecticut qualified as the 'home state' of the children at the time the motion for modification was filed and whether the plaintiff has a 'significant connection with this state.'" Id., 522. Similarly, in the present case, the court must resolve necessary issues of fact, such as, whether a court of another state had commenced a child custody proceeding regarding the children prior to the filing of the present custody application.
Section 46b-115p has been construed as providing that "when a Connecticut court learns that a custody proceeding is pending in the court of another state, it shall communicate with the court of that [state] to resolve which court shall have jurisdiction. If the court determines that a court of the other state has jurisdiction, the Connecticut court is required to stay its proceeding while the court of the other state determines whether the court of this state is the more appropriate forum." (Emphasis added; internal quotation marks omitted.) Veecock-Little v. Little, Superior Court, judicial district of New Haven, Docket No. FA 06 4020140 (August 18, 2006, Frazzini, J.) (42 Conn. L. Rptr. 75, 79). In support of his argument that the court lacks subject matter jurisdiction pursuant to § 46b-115p(a), the defendant states on the face of the motion that the plaintiff initiated a Spanish child custody proceeding in 2001 and that custody was awarded to him. Moreover, he also has alleged that Spain has entered "enforcement orders."
Although it does not appear in the pleadings that a child custody proceeding is presently pending in Spain or elsewhere, issues of fact remain to be resolved, for example, whether a Spanish child custody order exists and all parties were given reasonable notice and an opportunity to be heard. Notwithstanding the plaintiff's contention that Spain cannot be considered a state, § 46b-115d of the UCCJEA explicitly provides: "For purposes of this chapter, any child custody order of a foreign country shall be treated in the manner provided in section 46b-115hh." Section 46b-115hh provides in relevant part: "As used in [section] 46b-115ii . . .'Foreign child custody determination' means any judgment, decree or other order of a court or tribunal of competent jurisdiction of a foreign state providing for legal custody, physical custody or visitation with respect to a child. The term includes a permanent, temporary, initial and modification order." Finally, § 46b-115ii provides: "A court of this state shall treat a foreign child custody determination made under factual circumstances in substantial conformity with the jurisdictional standards of this chapter, including reasonable notice and opportunity to be heard to all affected persons, as a child custody determination of another state under sections 46b-115 to 46b-115t, inclusive, unless such determination was rendered under child custody law which violates fundamental principles of human rights or unless such determination is repugnant to the public policy of this state." (Emphasis added.) If the court finds that a Spanish child custody determination exists and that it was properly rendered pursuant to § 46b-115ii, it would treat the determination as it would that of a sister state.
The court would then construe the plaintiff's application as one seeking modification of the Spanish child custody determination, rather than one seeking an initial determination. Section 46b-115m(a) is helpful for that analysis. The statute provides: "Except as otherwise provided in section 46b-115n, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under subdivisions (1) to (4), inclusive, of subsection (a) of section 46b-115k and one of the following occurs: (1) The court of the other state determines that it no longer has exclusive, continuing jurisdiction under a provision substantially similar to section 46b-115l; (2) a court of another state determines that a court of this state would be a more convenient forum under a provision substantially similar to section 46b-115q; or (3) a court of this state or another state determines that the child, the child's parents and any person acting as a parent do not presently reside in the other state." Accordingly, the court may have to address certain issues of fact, including whether Connecticut qualified as the "home state" of the children at the time the present custody application was filed and whether the plaintiff has a "significant connection with this state." At an evidentiary hearing, the court may also have to resolve the issue of whether the defendant presently resides in Spain. Although the plaintiff indicates on one of the pleading forms that the defendant's address is in the Dominican Republic, service of process was made on the defendant's attorney in Connecticut. The defendant neither contests that he resides in the Dominican Republic nor mentions where he resides.
In turn, § 46b-115k(a) provides in relevant part: "Except as otherwise provided in section 46b-115n, a court of this state has jurisdiction to make an initial child custody determination if: (1) This state is the home state of the child on the date of the commencement of the child custody proceeding; [or] . . . (3) A court of another state does not have jurisdiction under subdivisions (1) or (2) of this subsection, the child and at least one parent or person acting as a parent have a significant connection with this state other than mere physical presence, and there is substantial evidence available in this state concerning the child's care, protection, training and personal relationships . . ."
Issues of fact also exist surrounding the plaintiff's contention that a Dorchester, Massachusetts court issued a temporary abuse prevention order on November 16, 2000 that awarded custody of the children to her. The order, attached to the plaintiff's memorandum, indicates that it was issued without advance notice because the Massachusetts court determined that there was a substantial likelihood of immediate danger or abuse. On November 30, 2000, it appears that the Massachusetts court extended the order until November 30, 2001. The plaintiff commenced the Spanish child custody proceeding in January 2001, before the Massachusetts order had expired.
Massachusetts General Law ch. 209B, § 2, provides in relevant part: "(a) Any court which is competent to decide child custody matters has jurisdiction to make a custody determination by initial . . . judgment if . . . (3) the child is physically present in the commonwealth and . . . it is necessary in an emergency to protect the child from abuse or neglect or for other good cause shown, provided that in the event that jurisdictional prerequisites are not established pursuant to any other paragraph of this subsection and a court of another state shall be entitled to assert jurisdiction under any other subparagraph of this paragraph then a court exercising jurisdiction pursuant to this clause of paragraph (3) may do so only by entering such temporary order or orders as it deems necessary unless the court of the other state has declined to exercise jurisdiction, has stayed its proceedings or has otherwise deferred to the jurisdiction of a court of the commonwealth . . ."
After the Spanish child custody proceeding had commenced, the Massachusetts court made its temporary order permanent on November 30, 2001, without modification. Although the plaintiff does not seek to enforce the Massachusetts order, pursuant to G.L.c. 209B, § 2, the Massachusetts court was without jurisdiction to render the order permanent because Spain was entitled to assert its jurisdiction. It does not appear that Spain declined to exercise its jurisdiction, stayed its proceedings, or otherwise deferred to the Massachusetts court. The court must clarify all of these issues at an evidentiary hearing.
If the court determines it has subject matter jurisdiction over the present child custody application, it must decide whether it should decline to exercise its jurisdiction because of the plaintiff's unjustifiable conduct. Both parties have provided the court with different accounts of the events leading up to the present custody dispute. It is submitted that issues of fact require the court to hold an evidentiary hearing to examine the conduct of the plaintiff and determine whether it should decline to exercise jurisdiction under § 46b-115r(a).
The parties are ordered to secure trial dates from the caseflow coordinator forthwith.