Opinion
No. FST FA 11 4019900
September 8, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS #104
The issue presented is whether the court should grant the defendant's motion to dismiss the plaintiff's complaint on the ground that this court will give full force and effect to the Lithuanian divorce decree under the principle of comity, thereby depriving this court of subject matter jurisdiction.
FACTS
On December 8, 2010, the plaintiff, Birute Zitkene, filed a complaint against the defendant, Romualdas Zitkus, and makes the following allegations. The plaintiff and the defendant married in Lithuania on August 4, 1963. The marriage has broken down irretrievably. On May 3, 2006, the defendant obtained an ex parte judgment of divorce in New York. Moreover, on June 2, 2009, the plaintiff and the defendant entered into an agreement dissolving their marriage, and the agreement was accepted by the Lithuanian court. The plaintiff alleges that the agreement violates Connecticut public policy and is invalid in that it was obtained by gross misrepresentations and duress by the defendant and by mistakes in interpreting United States law by the Lithuanian court. The plaintiff seeks a dissolution of the marriage, otherwise a declaratory judgment that the dissolution of the marriage issued by the Lithuanian court is invalid. Moreover, the plaintiff seeks equitable division of the property as well as temporary and permanent alimony. For at least twelve months prior to the filing of the complaint, the defendant has resided in Connecticut.
On April 4, 2011, the defendant filed a motion to dismiss the plaintiff's complaint on the grounds that she has not complied with the provisions of General Statutes §§ 46b-70 et seq. by not filing the Lithuanian judgment of divorce with this court, thereby depriving the court of subject matter jurisdiction, and that the proper method for the plaintiff to challenge the validity of that judgment is before the Lithuanian court. The defendant filed a memorandum of law in support of his motion. On May 5, 2011, the plaintiff filed a memorandum of law in opposition to the motion, to which the defendant filed a memorandum in reply on June 9, 2011.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . ." (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). "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). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "[I]t is the burden of 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.) Wilcox v. Webster Ins. Co., 294 Conn. 206, 213-14, 982 A.2d 1053 (2009).
The defendant argues that this court lacks subject matter jurisdiction to grant the relief sought by the plaintiff because the plaintiff never filed the New York State Judgment of Divorce or the Lithuanian judgment with this court in accordance with General Statutes § 46b-71. The defendant further argues that the Lithuanian courts have jurisdiction over their judgments and the parties' agreement and that these courts are the proper venue to challenge orders issued by them.
Whether the plaintiff filed the New York State Judgment of Divorce with this court is irrelevant since this court cannot grant full faith and credit to that judgment to the extent that the plaintiff did not enter an appearance in that action. See Colby v. Colby, 33 Conn.App. 417, 420-21, 635 A.2d 1241 (1994) (in construing General Statutes § 46b-70, holding that "[t]he requirement of the entry of an appearance by both parties is a threshold requirement for enforcement of a foreign matrimonial judgment . . . The language of § 46b-70 . . . reflects the intent of the legislature to ensure that both parties have actual notice of an out-of-state proceeding, and to preclude adoption of foreign judgments obtained by a default in appearance") (citations omitted; emphasis in original; internal quotation marks omitted).
Further, the plaintiff was not required to file the Lithuanian divorce decree with this court since "foreign matrimonial judgment" as used in § 46b-71 refers only to a foreign judgment obtained in a sister state, not in a foreign nation. See § 46b-70 (defining "foreign matrimonial judgment").
In opposition to the motion, the plaintiff makes the following arguments. First, the Lithuanian judgment should not be afforded comity because it was obtained by the defendant through fraud and in violation of due process and because it offends public policy. The plaintiff supports this argument by alleging that she was forced into the divorce agreement with the defendant inasmuch as the defendant otherwise would not personally appear before the court, and under Lithuanian law, the defendant's appearance was necessary for the court to enter a divorce judgment. Moreover, the plaintiff was not required to file a copy of the New York judgment with this court to the extent that the plaintiff never entered an appearance in that action and, therefore, that judgment is not a "foreign matrimonial judgment" within the meaning of General Statutes § 46b-70. Furthermore, the plaintiff was not required to file a copy of the Lithuanian judgment with this court because she is not seeking enforcement of that judgment pursuant to § 46b-71(a) and, in fact, is maintaining that the judgment should not be recognized in Connecticut courts. The plaintiff also argues that General Statutes § 46b-42 provides the courts with exclusive jurisdiction of all complaints seeking a dissolution of marriage and that, accordingly, this court has subject matter jurisdiction pursuant to that statute. Finally, the plaintiff argues that at a minimum, this court should allow for limited discovery or an evidentiary hearing to determine whether this court has subject matter jurisdiction.
The defendant argues the following in reply. The plaintiff filed an appeal of the Lithuanian court's decision approving the agreement on the ground that she should be provided a substantial amount of additional time to meet her obligation to pay the defendant because her financial situation had worsened; the ground for the appeal was not a denial of due process, fraud or undue influence. The Lithuanian Court of Appeals ruled in the defendant's favor and held that the agreement between the parties was reached by common agreement and that there was no evidence that the plaintiff reached the agreement against her will. The defendant further maintains that the plaintiff brought the present action alleging that the Lithuanian decree was obtained by fraud and violates public policy only after the Lithuanian Court of Appeals ruled that the plaintiff was not going to be relieved from satisfying her obligations pursuant to the agreement.
The Connecticut Supreme Court "has recognize[d] the need for finality between parties in a divorce proceeding . . . A valid divorce judgment is a judgment in rem and is binding on all the world as to the existence of a status which is the subject of the action, that is, the status of being unmarried upon the adjudication of divorce." (Citations omitted; internal quotation marks omitted.) Loughlin v. Loughlin, 280 Conn. 632, 645, 910 A.2d 963 (2006). "Courts of the United States are not required by federal law to give full force and effect to a judgment granted in a foreign nation . . . On the other hand, 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. Such recognition is granted to foreign judgments with due regard to international duty and convenience, on the one hand, and to rights of citizens of the United States and others under the protection of its laws, on the other hand. 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." (Citations omitted.) Litvaitis v. Litvaitis, 162 Conn. 540, 544-45, 295 A.2d 519 (1972). See also Bruneau v. Bruneau, 3 Conn.App. 453, 459, 489 A.2d 1049 (1985) (granting the defendant's motion to dismiss the plaintiff's dissolution of marriage action on the ground that the court lacked subject matter jurisdiction because the parties already were divorced pursuant to a Mexican divorce decree, which the court recognized under the principle of comity).
At the same time, "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." Litvaitis v. Litvaitis, supra, 162 Conn. 545.
With regard to the issue of whether a foreign court had jurisdiction over a divorce proceeding, the basic rule is that "ordinarily, our courts will not recognize a divorce obtained in a foreign country if neither spouse had a domicil in that country . . . The traditional requisite for subject-matter jurisdiction in matrimonial proceedings has been domicil . . . 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.) Id., 545-46.
In the present case, the plaintiff and the defendant entered into a divorce settlement in Lithuania that was accepted by a Lithuanian court and affirmed by the Lithuanian Court of Appeals. The plaintiff was domiciled in Lithuania at the time of the proceedings, and both parties were served and appeared in the matter. Moreover, both parties agreed to the settlement. Thus, the Lithuanian courts had jurisdiction to enter the divorce decree. Accordingly, the jurisdictional requirement for granting comity to a foreign divorce decree has been satisfied and, therefore, this court will give full force and effect to that judgment. Since there is no valid marriage between the plaintiff and the defendant, this court lacks subject matter jurisdiction over the plaintiff's dissolution of marriage action. Accordingly, the defendant's motion to dismiss should be granted.
Notwithstanding the fact that this court will give full force and effect to the Lithuanian divorce decree, the plaintiff still has two options: (1) appear in Lithuanian court and file a motion to open and vacate the divorce decree in accordance with Lithuanian law; or (2) move to open and vacate the Lithuanian decree in this court pursuant to the rules of practice and statutes.
CONCLUSION
For the foregoing reasons, the court grants the defendant's motion to dismiss the plaintiff's complaint on the ground that this court will give full force and effect to the Lithuanian divorce decree under the principle of comity, thereby depriving this court of subject matter jurisdiction.