Opinion
No. FA 06-4025800 S
February 14, 2007
MEMORANDUM OF DECISION
The nonresident defendant wife has filed a Motion to Dismiss claiming lack of personal jurisdiction and forum non conveniens in this dissolution action.
Procedural History
By complaint dated September 22, 2006, plaintiff-husband commenced this action for dissolution of marriage and other relief. The plaintiff attempted legal service by certified mail to the defendant-wife in the State of Maryland on September 25, 2006. The defendant was notified by her local postal office that it was holding a certified package for her from a Connecticut state marshal. The defendant declined to pick up the package. Instead, the defendant hired an attorney and initiated a dissolution action against the plaintiff in Maryland. A Connecticut state marshal made personal service upon the plaintiff on October 10, 2006 at his place of work in Berlin, Connecticut. The defendant's Maryland attorney found that the plaintiff commenced the present action against the defendant in the State of Connecticut, and acquired the documents related to this action from the plaintiff's Connecticut attorney. The wife then hired counsel in Hartford, Connecticut, and filed a motion to dismiss for lack of personal jurisdiction and forum non conveniens on November 2, 2006. The defendant subsequently received actual notice of the present action by personal service from a Maryland state marshal on December 6, 2006. The husband then filed an objection to defendant's motion to dismiss on December 22, 2006. The husband's claim is that CONN. GEN. STAT. § 46b-44 allows a complaint for dissolution of marriage to be filed once either party has established residence in Connecticut. The wife then filed a response to the plaintiff's objection to the motion to dismiss on the same ground as her original motion to dismiss, lack of personal jurisdiction and forum non conveniens.
At the hearing, no witnesses testified; however, oral argument was heard and all memoranda with respect to the issues in the case were presented to the court.
Facts and Discussion
The plaintiff and defendant were married on October 2, 1982 in Ellwood City, Pennsylvania. The parties have two children, both of whom have reached the age of majority. In 1987, the parties moved to Connecticut and resided there until 2000. While in Connecticut, the plaintiff worked for Northeast Utilities, and the wife primarily stayed at home to take care of the children. In December of 2000, the parties agreed to relocate to Maryland so that the plaintiff-husband could seek new employment. In January of 2001 the family moved to Maryland. The plaintiff obtained new employment. From January 2001 until May 2001 the plaintiff and his family resided in Damascus, Maryland. From May 2001 until October 15, 2005, the plaintiff and family resided in the present marital home in New Market, Maryland. In August of 2002, the defendant obtained employment with and continues to work for Frederick Primary Care Association in Maryland. During September of 2005, the plaintiff and his wife began to discuss the possibility of moving to Connecticut so that the plaintiff could return to work at Northeast Utilities. The family discussed their options and agreed that the wife and children would remain in Maryland until the youngest daughter graduated from high school. However in October, after being rehired by Northeast Utilities, the plaintiff informed his wife that he no longer wished to remain married. He moved to Connecticut on or about October 15, 2005. To the present date, the defendant wife and children reside in the marital home in Maryland.
The defendant does not own any property in Connecticut. She has not lived in Connecticut since December 2001. Her only contacts with Connecticut have been social telephone calls, and two social visits to her girlfriends in the summers of 2001 and 2004, the latter of which lasted five days. The plaintiff contends the defendant visited Connecticut a third time on Easter Weekend in 2001. Neither the parties' children, nor the plaintiff or defendant have family members living in Connecticut. However, the family has many contacts with the State of Maryland: the marital home is located in Maryland; the defendant has made mortgage, tax and homeowners insurance payments; the defendant is employed in the state; the family worships at a church in Maryland; both children graduated from high school and now attend college in Maryland; all defendant's bank accounts are in Maryland; the wife's and childrens' cars are registered in Maryland; and all of the marital property, except for a laptop and tools that the plaintiff took when he moved, are located in Maryland.
The plaintiff rents an apartment, has registered his car and has a bank account in Connecticut. He is employed by Northeast Utilities in the town of Berlin. Furthermore, the plaintiff sends money to the defendant to pay the bills for the marital home in New Market, Maryland.
According to Connecticut's long-arm statute, C.G.S. § 46b-46(b), the plaintiff must meet two requirements in order to file a dissolution action within the state: (1) the non-resident party must receive actual notice of the action; and (2) the plaintiff must meet the residency requirements of C.G.S. § 46b-44. The plaintiff contends that he has satisfied both requirements of the long-arm statute: the defendant received actual notice through her attorney in Maryland and on December 6, 2006, was served by a Maryland State Marshal; and the plaintiff has lived in Connecticut one year prior to the filing of this dissolution action. The plaintiff has met these requirements.
However, a dissolution action may be dismissed on due process grounds even when the two requirements of the long-arm statute have been met. Jepson v. Jepson, 22 Conn. L. Rptr. 171 (Stamford 1988). In Jepson, the dispositive issue was whether compliance with the state long-arm statute would violate the nonresident defendant-wife's federal due process rights, despite the husband's compliance with the long-arm statute, § 46b-46(b). The husband filed a dissolution action in Connecticut, satisfying the requirements of the long-arm statute. Prior to moving to Connecticut, the husband lived with the wife and their two minor children in Rochester, NY. The wife then filed a motion to dismiss for lack of personal jurisdiction, as did the defendant in the present case. The court relying on Pennoyer v. Neff, 95 U.S. 714 (1878), and its line of cases identified two factors that must be present to satisfy due process. "The existence of personal jurisdiction depends upon the presence of reasonable notice to the defendant that an action has been brought, and sufficient client connection between the defendant and the action in the forum state." Id. The court determined the first requirement of due process, notice, had been met, pursuant to the first prong of the long-arm statute. This factor is also met in the present case.
The Jepson court then moved to the second requirement, which is whether there is a sufficient connection between the defendant-wife and Connecticut. It noted a court may exercise personal jurisdiction over a nonresident who has "certain minimum contacts" with that state; CT Page 2761 Pinder v. Pinder, 42 Conn.App. 254, 259 (1996) citing International Shoe Co. v. Washington, 326 U.S. 10, 16 (1945) and so long as continuation of the suit does not "offend traditional notions of fair play and substantial justice." Jepson, 22 Conn. L. Rptr. 171 citing International Shoe, 326 U.S. at 16. The court determined the wife did not have minimum contacts with Connecticut, as she had never been to the state; the parties were not married in Connecticut; and the parties did not agree their minor children would live in the state. This court notes that in the present case the parties and their children had lived in Connecticut for 13 years, however, they relinquished all substantial contacts when the family moved to Maryland. All of the family's substantial contacts have been in Maryland since 2001.
The plaintiff further contends that it is reasonable for the defendant to expect to be compelled into Connecticut for the purpose of dissolving their marriage. He cites the following case law: "The twin touchstones of due process analysis under the minimum contacts doctrine are foreseeability and fairness. The foreseeability that is critical to due process analysis . . . is that the defendant's conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there . . ." Jepson citing Phoenix Leasing v. Kosinski, 47 Conn.App. 650, 654 (1998). He goes on further to state that: "It is the totality of the defendant's conduct and connection with this state that must be considered . . . to determine whether the defendant could reasonably have anticipated being haled into court here." Id., citing Frazer v. McGowan, 198 Conn. 243, 249 (1986). The husband lists several reasons the wife should have expected to appear in the Connecticut to dissolve their marriage: (1) the wife's continued Connecticut residency through her social trips to the state; (2) the wife knew the plaintiff wanted her to move to Connecticut after their last child graduated from college in June 2006, before he expressed his wish to end the marriage; (3) the wife hired a Maryland attorney to file a dissolution action in Maryland; (4) the Maryland attorney took 10 months to file the action, assuming that the husband would file an action in Connecticut; (5) the wife resided in Connecticut for 13 years, the husband sends her money to Maryland, and that she continually communicated with the plaintiff in Connecticut; and (6) the wife hired a Connecticut attorney to represent her in the motion to dismiss filed in response to the plaintiff's dissolution action.
The husband essentially argues that because the wife had lived in Connecticut, knew the husband moved back to Connecticut, and was going to move back to Connecticut with the husband, the Connecticut courts would not violate due process by exercising personal jurisdiction over her. This court is not persuaded. The wife's tenuous contacts with Connecticut do not satisfy the due process analysis. While it was somewhat foreseeable the plaintiff would file a dissolution action in Connecticut, the defendant's overall conduct and connections with Connecticut do not amount to a reasonable expectation that she would have to appear in Connecticut to dissolve her marriage.
Even if Connecticut were to grant the dissolution action, it would not have the authority to enter any financial awards. In Pinder, the court held that the "absence of jurisdiction over the person of the defendant in this case, under both federal constitution and § 46b-46(b), invalidates the provision of the dissolution decree that no alimony is awarded to either party." Pinder, 42 Conn.App. at 260 (internal quotation marks omitted). A dissolution judgment, erroneously ordering a nonresident defendant over whom the court had no personal jurisdiction to pay alimony, may be modified in a later proceeding by eliminating the alimony proceeding. Robertson v. Robertson, 164 Conn. 140, 144 (1972). In Pinder, the parties had been married and resided in Massachusetts for 34 years. The wife then entered the hospital in Western Massachusetts, where she resided, due to being diagnosed with multiple sclerosis. The husband subsequently sold the marital home in Springfield, Massachusetts and moved to Mystic, Connecticut. Approximately two years later, the husband filed for divorce in Connecticut and it was granted. The wife moved to set aside the dissolution judgment. Although she did not include in her claim that the dissolution court had no jurisdiction to adjudicate her right to alimony because she still resided in Massachusetts and had no contacts with Connecticut, the trial court was nevertheless obligated to consider that issue. Id. at 258. The court concluded that because Connecticut did not have in personam jurisdiction over the wife, it could not make a determination of alimony. Id. at 259-61. The same analysis applies here. The state of Connecticut can only grant a decree dissolving the marriage, and cannot enter any awards of alimony, support or custody, as it does not have sufficient jurisdiction over the person of the defendant. The parties involved in dissolution action deserve finality not a piecemeal determination of their duties and obligations.
The defendant also moves to dismiss the action on the ground that Connecticut is an inconvenient forum. The plaintiff contends that since he works in Connecticut, it would be easier for his employer to testify in the state, as opposed to Maryland and that any other financial information concerning the defendant can be submitted through financial affidavits in Connecticut. "As a common law matter, the doctrine of forum non conveniens vests discretion in the trial court to decide where trial will best serve the convenience of the parties and the ends of justice." Icahn v. Icahn, 5 Conn. Ops. 714 (Stamford 1999), citing Union Carbide Corporation v. Aetna Casualty Surety Co., 212 Conn. 311, 319 (1989). The court must assess both the private and public factors in applying the doctrine of forum non conveniens. The Connecticut Supreme Court has adopted these analytical factors from Gulf Oil Corporation v. Gilbert, 330 U.S. 501 (1947). Important public factors include the administrative difficulties of congested courts, the imposition of jury duty upon people that have no interest in the parties or litigation, and an interest in having local controversies decided at home with the state law that must govern the case. Private considerations include ease of access to sources of proof, availability of compulsory processes of unwilling witnesses, and the cost of obtaining willing witnesses, enforceability of a judgment, and all other issues that make trial of a case easy.
Connecticut does not have jurisdiction over awards of alimony, custody or support and because financial documents, the marital home, the children, personal property, the defendant's job and bank accounts are all located in the state of Maryland, these factors tip the balance in favor of trying the case in Maryland.
For these reasons the Court grants the defendant's motion to dismiss.