Opinion
No. FA 08-4010513-S
July 23, 2010
RULING ON MOTION TO DIMISS #118
I. Procedural Background
On September 16, 2008, the plaintiff filed a Complaint in this court for the dissolution of her marriage to the defendant. The Return Date was September 23, 2008. The defendant appeared through counsel on September 19, 2008. The parties filed numerous pendente lite motions and orders were entered thereon by the court. No Answer or Cross-Complaint was filed by the defendant. On June 11, 2009, the defendant moved to dismiss this action. He alleged that the court lacked subject matter jurisdiction because there is no valid marriage since they were previously divorced in Ecuador.
The Motion to Dismiss was assigned to this trial court for hearing. The plaintiff appeared with counsel who represented her throughout. The defendant appeared with counsel who represented him throughout. The hearing commenced on March 10, 2010, and continued to April 22, May 21, and on June 16th, June 23, June 29, June 30 and thence to July 20, whereupon it concluded. Each of the parties was assisted by a Spanish speaking interpreter. Both the plaintiff and the defendant testified. The defendant called one other witness, Robert Chase who qualified as an expert in Spanish and English translations. The plaintiff called one other witness, Hilda Santana, who qualified as an expert in Spanish and English translations. No other witness was called by either of the parties. Numerous exhibits were introduced by each of the parties.
II. Issues Presented
Whether a purported divorce obtained in Ecuador was valid; whether this court should recognize the Ecuadorian decree under the principle of comity; and whether the Ecuadorian decree should be accorded recognition under the doctrine of practical recognition.
III. Facts CT Page 15203
The plaintiff, Gladys Suarez, and the defendant, Carlos Arias, are both Ecuadorian citizens. They were married in Ecuador on April 1, 1986. On the following day, April 2nd, the defendant left Ecuador and immigrated to the United States in hope of finding employment and housing to support his new wife and future family. He entered the US and took residence in the state of Connecticut as an undocumented alien. He has resided continuously in Connecticut since April 2, 1986, as an undocumented alien. Approximately one year later, the plaintiff joined the defendant in Connecticut. She entered the United States legally on either a student or traveler's visa, but concededly remained illegally in the United States after her visa expired. Neither of the parties has ever returned to Ecuador. They established a home and had two children together, over the course of the next few years.The parties subsequently experienced marital discord, and believed that they stood a better chance of legalizing their respective immigration status if they divorced. They agreed to an uncontested divorce. The parties either did not believe they could avail themselves of the United States' judicial system, or feared doing so because they believed they were in the US illegally. The parties executed a power of attorney in New York which granted general powers of attorney to the plaintiff's father, who was still in Ecuador. The plaintiff's father hired an attorney in Ecuador for each of the parties to procure an uncontested divorce. The plan went forward, and, on August 28, 1996, a divorce decree was obtained from an Ecuadorian court.
Thereafter, the parties lived separately and apart from each other for a brief period of time. At some time during 1997, they reconciled and resumed residing together. Several more separations and reconciliations ensued, until, in January 2008, the parties had a final falling out. She believed that he was being unfaithful to her and that he was cheating on her with another woman; at that time he moved out of the home they shared. The plaintiff thereafter, commenced this action to dissolve their marriage. The defendant has moved to dismiss the Complaint. He contends that the court is without subject matter jurisdiction because they were previously divorced by virtue of the Ecuadorian decree in 1996 and have not married. In the alternative, he argues that even if the foreign divorce was invalid, this court should afford practical recognition to the Ecuadorian divorce and dismiss this action on that basis.
IV. Whether Legal Recognition of the Ecuadorian Divorce Decree Should Be Given as a Matter of Comity CT Page 15204
The defendant contends that the parties were divorced in 1996 by an Ecuadorian court; this court must recognize the effect of the divorce decree issued by the Ecuadorian court; and therefore, this court lacks subject matter jurisdiction and must dismiss this action. Simply put, he argues that there is no marriage to be dissolved, and, consequently, this court cannot award the plaintiff the relief.While "[t]he full faith and credit clause of the constitution of the United States does not apply to a divorce obtained in a foreign country," it is now well established that "judgments of courts of foreign countries are recognized in the United States because of the comity due to the courts and judgments of one nation from another." Litvaitis v. Litvaitis, 162 Conn. 540, 544, 295 A.2d 519 (1972). "This principle is frequently applied in divorce cases; a decree of divorce granted in one country by a court having jurisdiction to do so will be given full force and effect in another country by comity, not only as a decree determining status, but also with respect to an award of alimony and child support." Id., 544-45.
It has been observed that "[a]s a practical matter, the distinction between comity and the constitutional mandate of full faith and credit has become almost imperceptible." Deering v. Deering, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA 90 0112348 (October 4, 1991, Mottolese, J.) ( 5 Conn. L. Rptr. 117, 118).
"The principle of comity, however, has several important exceptions and qualifications." Id., 545. "An important exception . . . is where the foreign court lacked jurisdiction." Bruneau v. Bruneau, 3 Conn.App. 453, 455, 489 A.2d 1049 (1985). "If a divorce judgment is pronounced by a tribunal which does not have jurisdiction to do so, it may be attacked collaterally on that ground in this country; comity will not demand its recognition. Ordinarily, our courts will not recognize a divorce obtained in a foreign country if neither spouse had a domicile in that country. That at least one of the parties was domiciled in the foreign country is essential to give the court jurisdiction to grant a divorce. The rule applies to decrees of foreign nations as well as to decrees entered within the United States, even though a domicile is not required by the laws of the jurisdiction which grants the divorce . . . The traditional requisite for subject-matter jurisdiction in matrimonial proceedings has been domicile . . . Under our system of law, judicial power to grant a divorce . . . is founded on domicile . . . Regardless of its validity in the nation awarding it, the courts of this country will not generally recognize a judgment of divorce rendered by the courts of a foreign nation as valid to terminate the existence of a marriage unless, by the standards of the jurisdiction in which recognition is sought, at least one of the spouses was a good faith domiciliary in the foreign nation at the time the decree was rendered." (Citations omitted; emphasis added; internal quotation marks omitted.) Litvaitis v. Litvaitis, supra, 162 Conn. 545-46.
"[A] person may have . . . only one domicile at any one time." Taylor v. Taylor, 168 Conn. 619, 621, 362 A.2d 795 (1975). "To constitute domicile, the residence at the place chosen for the domicile must be actual, and to the fact of residence there must be added the intention of remaining permanently; and that place is the domicile of the person in which he has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with the present intention of making it his home." (Internal quotation marks omitted.) Litvaitis v. Litvaitis, supra, 162 Conn. 546. In other words, domicile is established when an individual has not only physically taken up a residence in a particular place, but where the individual also has a present intention to stay in that place and make it his or her home. Id. It is clear that neither the plaintiff nor the defendant was domiciled in Ecuador when the divorce decree was obtained by a court of that country. Rather, both parties were and continue to be, residents of the United States, with no intention of returning to Ecuador. Thus, because the parties were not domiciled in Ecuador, the Ecuadorian court did not have jurisdiction to issue a judgment of dissolution. Therefore, this court does not afford the divorce decree comity. Id.
It is irrelevant that both parties agreed to obtain the divorce in Ecuador. Their consent could not have empowered the courts of Ecuador with the jurisdiction necessary to dissolve their marriage. "Parties cannot confer subject matter jurisdiction on a court by consent, waiver, silence or agreement." Hayes v. Beresford, 184 Conn. 558, 562, 440 A.2d 224 (1981).
The majority of decisions rendered by Connecticut courts, assessing the validity of a foreign divorce decree, have involved situations in which the parties (1) were American citizens who were (2) married in the United States, (3) remained domiciled in the US after marrying, and then (4) obtained a foreign divorce by traveling abroad for the sole purpose of procuring the divorce. There are some decisions with a fact pattern more akin to the one before this court, wherein the American court is presented with a situation in which citizens of another nation were married in their home country before coming to the United States and establishing domicile. The parties, still domiciled in the United States, then, obtained a divorce decree from a court within their home country. Some courts have found that, where these and additional circumstances hold true, the foreign divorce decree should be upheld despite the lack of domicile. See generally annot., 13 A.L.R.3d 1419 § 7, and cases cited therein.
"In the few American cases in which state courts have recognized foreign divorces obtained by absentee non-domiciliaries of the divorcing jurisdiction . . . certain . . . important contacts with the divorcing jurisdiction were established. They are: (1) the parties were married in the jurisdiction where they subsequently divorced; (2) they lived in that jurisdiction as husband and wife for a period of time; (3) although they were not personally before the divorcing court or even within [its] jurisdiction at the time of the divorce, both parties had notice of the action and either appeared by counsel or consented to personal jurisdiction; and (4) . . . both parties to the divorce were citizens of the country granting the divorce." (Emphasis added.) Matter of Ma, 15 I. N. Dec. 70, 72 (1974). In the Matter of Ma, the board of immigration appeals was required to review the marital status of the petitioner's son. It ultimately determined that the Korean divorce at issue (which was consensual and obtained by Korean citizens who had previously been married in Korea) was nevertheless invalid because the record demonstrated that "they were never domiciled together as husband and wife in Korea." Id. The board explained that it could find "no American cases recognizing foreign divorces where neither party was either domiciled or physically present in the divorcing jurisdiction when the action was commenced and where the couple never lived as husband and wife in the divorcing jurisdiction." Id. As a result, it determined that "no state would give extraterritorial effect to the . . . divorce, and therefore . . . [did] not recognize [the] divorce as valid for immigration purposes." Id.
The reasoning articulated in Matter of Ma was recently followed by the United States Court of Appeals for the Fourth Circuit in Jahed v. Acri, 468 F.3d 230, 235-36 (4th Cir. 2006). There, a foreign divorce decree was again examined for immigration purposes, and the four factors established in Matter of Ma were articulated with approval. Id., 235.
The plaintiff and defendant are citizens of Ecuador; they married in Ecuador; they obtained a consensual divorce in Ecuador; however, neither party was domiciled in Ecuador when the divorce was obtained in Ecuador. Consequently, this court cannot recognize the divorce by the Ecuadorian by virtue of comity.
V. Whether Practical Recognition of the Ecuadorian Divorce Decree Should be Granted as a Matter of Equity
The defendant contends that even if the Ecuadorian divorce decree is invalid, this court should nevertheless, afford it practical recognition and dismiss the plaintiff's complaint. He asserts it would be inequitable to allow her to now challenge its validity having previously participated in and consented to the Ecuadorian divorce many years ago.
"[A]lthough the majority of states refuse to recognize the validity of a foreign divorce decree when their own jurisdictional requirements with respect to domicile are absent, most courts, when equities mandate, will give practical recognition to the foreign decree. Consequently, a party attacking the validity of a foreign decree may be effectively barred from securing a judgment of its invalidity." Baker v. Baker, 39 Conn.Sup. 66, 71, 468 A.2d 944 (1983). "The concept of `practical' recognition of a divorce decree rendered in a foreign nation where neither spouse is domiciled has been recognized by a number of courts . . . [P]ractical 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 . . . Thus, a party may be precluded from attacking a foreign divorce decree if such an attack would be inequitable under the circumstances . . . Moreover, in a case involving a Mexican divorce, our Supreme Court . . . recognized that out-of-state divorces are [now] both less likely and less opprobrious, and that, therefore, such divorces should not lightly be overturned where the parties had intended to channel the dissolution of their marriage in a legitimate rather than in an illegitimate fashion. Hayes v. Beresford, 184 Conn. 558, 567, 440 A.2d 224 (1981); see also Lavigne v. Lavigne, 3 Conn.App. 423, 488 A.2d 1290 (1985)." (Citations omitted; internal quotation marks omitted.) Bruneau v. Bruneau, supra, 3 Conn.App. 456-57.
When faced with an invalid foreign divorce, Connecticut courts and courts of other jurisdictions take into consideration all relevant circumstances and analyze whether equity demands that the foreign divorce nevertheless be recognized. See generally annot., 13 A.L.R.3d 1419 § 8, and cases cited therein. There appears to be no hard-and-fast rule as to what showing necessitates practical recognition of an invalid divorce. Courts generally focus on the party that wishes to invalidate the foreign decree and whether one or more equitable principles of estoppel, laches, unclean hands, etc, should preclude that party from doing so.
A. Estoppel
"The rule precluding a person from attacking the validity of a foreign divorce if, under the circumstances, it would be inequitable to do so, is not limited to where one party induces another to rely to his damage upon certain representations as to the facts of the case . . . [I]f the person attacking the divorce is, in doing so, taking a position inconsistent with his past conduct, or if the parties to the action have relied upon the divorce, and if, in addition, holding the divorce invalid will unset relationships or expectations formed in reliance upon the divorce, then estoppel will preclude calling the divorce in question . . . Thus, if one party has accepted benefits under the original decree or waited an unreasonably long time before attacking it, an invalid decree will be held immune from attack, particularly if the other party has remarried in the meantime . . . Consequently, even if a divorce decree rendered in a foreign country is jurisdictionally invalid under the general rule set forth in Litvaitis, the judgment may be permitted practical recognition." (Citations omitted; internal quotation marks omitted.) Bruneau v. Bruneau, supra, 3 Conn.App. 457-58.
Upon first look, it appears that the plaintiff has taken a position that is inconsistent with that indicated by her past conduct. Given that she consented to the Ecuadorian divorce and that she participated in its procurement by signing a power of attorney authorizing her father to hire counsel in Ecuador to effectuate the divorce proceedings, this court could conclude that she previously acknowledged the validity of that divorce. Additionally, subsequent to their divorce, the parties filed separate tax returns and, after purchasing a home, the defendant quitclaimed one-half of his interest in it to the plaintiff, who accepted the transfer, evidencing their understanding that she otherwise possessed no interest in the property due to the foreign divorce. Upon second look, the evidence also indicates that for most of the time between the foreign judgment of dissolution and the commencement of this action, the parties continued to live together and continued to hold themselves out to others as being married.
There is no evidence before this court that "holding the divorce to be invalid [would] unset relationships or expectations formed in reliance upon the divorce." Id., 457. Often, a court's decision to estop one spouse from challenging a foreign divorce obtained without jurisdiction is greatly influenced by the remarriage of one or both parties, and the inequities that would necessarily follow should the foreign divorce not be accorded practical recognition. See id., 458 (wife was estopped from challenging Mexican divorce where husband remarried in reliance thereof); Abad v. Ochoa, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA 020192124 (July 1, 2003, Shay, J.) ( 35 Conn. L. Rptr. 48, 48) (affording practical recognition to otherwise invalid foreign divorce where both parties remarried); Baker v. Baker, supra, 39 Conn.Sup.73-74 (wife estopped from challenging Mexican divorce where she consented to divorce, remarried, divorced second husband, then filed for dissolution of her first marriage).
It is undisputed that neither the plaintiff nor defendant in the present case has remarried in reliance on the Ecuadorian divorce. Nor does it appear that the plaintiff received any "benefits" of the invalid Ecuadorian divorce, the acceptance of which would estop her from now challenging that dissolution. Connecticut courts recognize two forms of benefits that may flow from an invalid foreign divorce. First, courts often characterize the ability to remarry following such a divorce as a benefit. See, e.g., Minoli v. Minoli, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA 02 0188156 (November 7, 2003, Novack, J.T.R.) ( 36 Conn. L. Rptr. 10, 11) (Second husband was estopped from challenging Dominican divorce obtained by wife and her first husband because he was fully aware of it "and in effect benefitted from it" in that "[h]e enjoyed the companionship of [his new wife] for several years, and raised a family with her"). Second, support payments and other financial awards that are incidental to or made part of an invalid foreign divorce are considered to be a form of benefit to the recipient. See, e.g., Bruneau v. Bruneau, supra, 3 Conn.App. 458 (wife estopped from challenging Mexican divorce decree after accepting benefit of support payments for nineteen years); Rogers v. Rogers, Superior Court, judicial district of New Britain, Docket No. FA 04 4001078 (April 22, 2005, Graham, J.) ( 39 Conn. L. Rptr. 241, 243) (Acceptance of support payments constituted a benefit of defective foreign divorce decree). Neither party has remarried, and there is no evidence that the plaintiff received a financial benefit as a result of the foreign divorce. Nor does it appear that she received any other benefit.
Estoppel, and like equitable doctrines, may be generally available to allow practical recognition of a jurisdictionally defective foreign divorce decree. However, "such equitable doctrines will not be applied so as to aid a party motivated primarily by financial considerations rather than a desire to seek a determination respecting his marital status." Annot., 13 A.L.R. 1419, 1460. The court does not find the plaintiff's intentions in challenging the foreign divorce decree to be motivated primarily by the prospect of financial gain. Moreover, such consideration will generally support an estoppel theory only where the challenge is made by virtue of a non-dissolution action, or where the challenging party's financial motives are otherwise apparent.
In determining whether a party should be estopped from attacking a foreign divorce, the court may also consider how long the malcontented party waited before making the legal challenge. Compare Bruneau v. Bruneau, supra, 457-59 (wife estopped from challenging foreign divorce because she waited nineteen years and husband remarried) and Deering v. Deering, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA 90 0112348 (October 4, 1991, Mottolese, J.) ( 5 Conn. L. Rptr. 117, 118) (twenty-three year delay in challenging invalid foreign divorce coupled with husband's reliance on divorce estopped wife from challenging it) with Maklad v. Maklad, Superior Court, judicial district of New Haven, Docket No. FA 00 0443796 (January 3, 2001, Alander, J.) ( 28 Conn. L. Rptr. 593, 595) (Wife not estopped from challenging Egyptian divorce where she did not consent to divorce and challenged it immediately through Connecticut dissolution action). Here, the plaintiff waited approximately twelve years to challenge the divorce, after having consented to it. The parties in this case did not substantially change their positions in reliance on the divorce through remarriage or otherwise, and the plaintiff has not accepted any benefits that flowed from it. Therefore, this court concludes that it is equitable to allow this action to move forward.
B. Laches
The delay in challenging the Ecuadorian divorce is also relevant to determining whether laches preclude the plaintiff from pursing this action. "Laches is an equitable defense that consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant . . . The mere lapse of time does not constitute laches . . . unless it results in prejudice to the defendant . . . as where, for example, the defendant is led to change his position with respect to the matter in question . . . Thus, prejudicial delay is the principal element in establishing the defense of laches." (Citation omitted; internal quotation marks omitted.) Cifaldi v. Cifaldi, 118 Conn.App. 325, 334-35, 983 A.2d 293 (2009).
Although the twelve years that the plaintiff waited to bring this action may qualify as an inexcusable delay, it does not appear that the defendant has been harmed by the delay. He has not remarried. There is no evidence that he has altered his financial planning due to the divorce. Laches does not prevent the plaintiff from proceeding with this action for dissolution.
C. Unclean Hands
"It is a fundamental principle of equity jurisprudence that for a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with clean hands . . . The clean hands doctrine is applied not for the protection of the parties but for the protection of the court . . . It is applied not by way of punishment but on considerations that make for the advancement of right and justice . . . The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue . . . Unless the plaintiff's conduct is of such a character as to be condemned and pronounced wrongful by honest and fair-minded people, the doctrine of unclean hands does not apply." Thompson v. Orcutt, 257 Conn. 301, 310, 777 A.2d 670 (2001). "The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in willful misconduct with regard to the matter in litigation." Monetary Funding Group, Inc. v. Pluchino, 87 Conn.App. 401, 407, 867 A.2d 841 (2005).
In the present case, it cannot be said that the plaintiff engaged in "willful misconduct" that honest and fair-minded people would condemn. In Bruneau, the Appellate Court did use strong language in finding that the wife, who sought to invalidate a Mexican divorce decree to which she had previously consented, was estopped from doing so: "Under the circumstances, to permit the plaintiff to challenge the validity of the decree would amount to allowing her to take advantage of a fraud in which she participated by being one of the parties to the Mexican proceeding." Bruneau v. Bruneau, supra, 3 Conn.App. 458. In the Bruneau case, the wife acknowledged that she had "fabricate[d] jurisdiction by agreement" in order to obtain the Mexican divorce. Id., 458 n. 3. Here, on the other hand, it appears that both parties believed that Ecuador was the proper jurisdiction to dissolve their marriage. As such, the doctrine of unclean hands does not prevent the plaintiff from pursuing this action.
IV. Conclusion
The Ecuadorian divorce obtained by the parties in 1996 was not legally valid because neither party was domiciled in that country therefore, this court does not recognize it as a matter of comity. After taking into consideration that neither party has remarried or drastically altered their circumstances in reliance on the validity of the Ecuadorian divorce; their apparent belief that Ecuador was the appropriate jurisdiction to dissolve their marriage; the lack of evidence that the plaintiff accepted benefits flowing from the invalid divorce; and that the plaintiff, in seeking a dissolution of the marriage from this court and in challenging the validity of the foreign divorce, is not motivated primarily by financial considerations; practical recognition of the foreign divorce decree, as a matter of equity, is not accorded.
Ordered:
The defendant's motion to dismiss is denied.