Opinion
No. CV07-4006847 S
November 6, 2007
MEMORANDUM OF LAW RE: MOTION TO DISMISS #104 PROCEDURAL BACKGROUND
This action arises out of the termination of a sixteen-year, monogamous and cohabitational relationship between the plaintiff, Joseph Carhuff, and the defendant, Dorothy Gezurian. The plaintiff filed a nine-count complaint on January 18, 2007. The complaint contains six counts based on the breach of an oral contract, implied contract and quantum meruit claims. Also, the complaint includes three claims brought by the plaintiff as the guardian of his minor children, which include count five, based on the negligent infliction of emotional distress, count six based on a breach of a statutory duty to support the family pursuant to General Statutes § 46b-37 and count nine, based on wanton and reckless conduct.
It is unclear from the pleadings as to what cause of action on which each count is based. At oral argument, however, the plaintiff stated that count one is based on a breach of an oral contract, count three is based on quantum meruit and counts four, seven and eight are based on the theory of an implied contract.
In general, the plaintiff alleges the following: that the parties cohabited for sixteen years but were never legally married. During the relationship, they conceived and raised together two children, John Carhuff, born on October 28, 1990, and Ashley Carhuff, born January 28, 1994. On September 9, 1999, the defendant received title to a ten-acre parcel of undeveloped real estate in the town of Sherman. Shortly after the acquisition of the property, the parties began construction of a home and the plaintiff was "engaged in all phases" of the construction project. The defendant made representations that the home was to be jointly owned by the plaintiff and the defendant and that a one-half interest in the home was to be conveyed to the plaintiff at an indefinite future date. In turn, the plaintiff relied on the defendant's representations that the plaintiff held a one-half interest in the home. Additionally, the parties had an agreement that the plaintiff would care for the children and the home, while working a modest job at night, and the defendant would pursue a professional career to support the family. As a result of this arrangement, the plaintiff was prevented from advancing his professional career.
The family resided in the newly constructed home from September 1999 until September 2005, at which point, the defendant ended her relationship with the plaintiff and initiated eviction proceedings against the plaintiff and their children. The plaintiff alleges that the minor children suffered severe emotional harm throughout the eviction proceedings and the period of time in which they were forced to seek an alternative residence and, further, that the severity of the emotional harm resulting therefrom requires the children to seek psychological treatment. In effect, the plaintiff alleges the defendant violated her statutory obligation to support the family and the actions of the defendant amount to wanton and reckless behavior towards the children.
Also, the issue of custody was previously determined in the matter of Gezurian v. Carhuff, Superior Court, judicial district of Danbury, Docket No. FA 06-4005858 (July 31, 2006, Frankel, J.). Motions for modification of the visitation orders are currently pending in the custody action. During the custody action, the minor children were represented by independent counsel, Attorney Sharon Wicks Dornfeld, who is also representing the children in this action. Moreover, in a separate child support action, the defendant was ordered to pay support in the amount of $414.00 per week effective as of February 1, 2007. See Carhuff v. Gezurian, Superior Court, judicial district of Danbury, Docket No. FA 06 4005492 (July 18, 2007, Wihbey, FSM.).
On April 2, 2007, the defendant filed a motion to dismiss counts one, three, four, five, six, seven, eight and nine of the original complaint, which was accompanied by a memorandum in support of the motion to dismiss. The plaintiff filed a pleading opposing the motion to dismiss on July 31, 2007. In conjunction with the plaintiff's opposition brief, the plaintiff also submitted a motion for leave to amend the complaint and a proposed amended complaint. The defendant filed an objection to the plaintiff's motion for leave to amend the complaint. The court heard oral argument on the motion to dismiss and the objection thereto on August 6, 2007.
The plaintiff's memorandum in opposition to the motion to dismiss addresses the allegations in the amended complaint, which was not the operative complaint at the time the motion to dismiss was filed. Therefore, the court will address the counts only as they were alleged in the original complaint. The court notes that a motion to dismiss for lack of subject matter jurisdiction may be raised at any time and must be resolved prior to ruling on any other motions pending before the court. Golden Hill Paugussett Tribe of Indians v. Southbury, 231 Conn. 563, 570, 651 A.2d 1246 (1995); see Felletter v. Thompson, 133 Conn. 277, 280, 50 A.2d 81 (1946) ("if the question whether there is a lack of jurisdiction of the subject matter of an action comes to the attention of the court, it can proceed no further until the matter is determined"). For this reason, it is improper for the court to consider a motion to amend prior to ruling on a motion to dismiss for lack of subject matter jurisdiction. Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991) ("[b]y considering the motion to amend prior to ruling on the challenge to the court's subject matter jurisdiction, the court acted inconsistently with the rule that, as soon as the jurisdiction of the court to decide an issue is called into question, all other action in the case must come to a halt until such a determination is made").
STATEMENT OF LAW
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006); see also Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005); Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993).
"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). "[A] subject matter jurisdictional defect may not be waived . . . [or jurisdiction] conferred by the parties, explicitly or implicitly . . . [T]he question of subject matter jurisdiction is a question of law . . . and, once raised, either by a party or by the court itself, the question must be answered before the court may decide the case. . ." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007).
Moreover, "[t]he issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." St. George v. Gordon, 264 Conn. 538, 544, 825 A.2d 90 (2003). "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) Missionary Society of Connecticut v. Board of Pardons and Paroles, 278 Conn. 197, 201, 896 A.2d 809 (2006); McBurney v. Cirillo, 276 Conn. 782, 820, 889 A.2d 759 (2006).
The Court, however, has held that "[r]es judicata is not included among the permissible grounds on which to base a motion to dismiss. Res judicata with respect to a jurisdictional issue does not itself raise a jurisdictional question . . . and therefore must be asserted as a special defense." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985).
The defendant argues in support of the motion to dismiss that the plaintiff is relying upon claims of common law marriage in counts one, three, four, seven and eight which are issues that are not within the subject matter jurisdiction of the court because the state of Connecticut does not recognize common-law marriages. The defendant further argues that counts five, six and nine should be dismissed because the plaintiff lacks standing to bring these claims on behalf of his minor children due to the fact that the court appointed a legal representative in a pending custody action to represent the interests of the children. The defendant also claims that count six should be dismissed based on res judicata because the claim for child support was resolved in a previous child support action between the same parties.
The plaintiff argues that the defendant confuses counts one, three, four, seven and eight with claims solely based on common law marriage and wholly ignores the alleged breach of contract claims and prayers for equitable relief. The plaintiff further responds that the motion to dismiss is the improper vehicle for attacking the sufficiency of the claims and the defendant should have moved to strike the individual counts pursuant to Practice Book § 10-39. In regard to the children's claims, the plaintiff only addresses count five and asserts that counts six and nine have been removed in the proposed amended complaint. The plaintiff argues that a claim may be brought by a child against their parent and the parent-child immunity doctrine does not apply to this case.
DISCUSSION I
The defendant argues that the plaintiff's pleading of common law marriage precludes the court from asserting subject matter jurisdiction over counts one, three, four, seven and eight. In support of this argument, the defendant cites case law holding that common-law marriage is not recognized in Connecticut and that cohabitation is insufficient to imply marital status upon the parties. See Loughlin v. Loughlin, 280 Conn. 632, 643-44, 910 A.2d 693 (2006). In the plaintiff's memorandum in opposition to the motion to dismiss, the plaintiff claims that the present action is not a petition for the dissolution of marriage, but is based on principles of contract law and equity.
"Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it . . . A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action." (Citations omitted; internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 727-28, 724 A.2d 1084 (1999). Although this court is cognizant that common-law marriage is not recognized in Connecticut, our law recognizes that a cohabitational relationship may create valid claims based on contractual and equitable principles. For example, the Appellate Court held that "where the parties have established an unmarried, cohabiting relationship, it is the specific conduct of the parties within that relationship that determines their respective rights and obligations, including the treatment of their individual property." Herring v. Daniels, 70 Conn.App. 649, 656, 805 A.2d 718 (2002). Also, "[i]n the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties." Id., 660-61.
Given the inartful language of plaintiff's complaint, it is not difficult for the defendant to have misconstrued the plaintiff's claim as an action for the dissolution of marriage, rather than claims based on a breach of contract and other equitable relief. Upon a liberal review of the allegations in the complaint read in a light most favorable to the plaintiff, it appears the plaintiff has alleged breach of an oral contract in count one, unjust enrichment in count three, and breach of an implied contract in counts four, seven and eight based on the sixteen year, monogamous and cohabitational relationship of the plaintiff and the defendant. Thus, the court retains subject matter jurisdiction over the claims in those counts.
The plaintiff further contends that the defendant's motion to dismiss is not the appropriate vehicle to address the allegations and the defendant should have filed a motion to strike. The court agrees that the motion to dismiss is the improper vehicle to challenge the sufficiency of counts one, three, four, seven and eight. In this case, the appropriate pleading would have been a motion to strike or a request to revise to remedy the references to common-law marriage in the plaintiff's complaint. As noted above in Pratt v. Old Saybrook, supra, "a motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action."
Practice Book § 10-35 states in relevant part that "[w]henever a party desires to obtain . . . the deletion of any unnecessary, repetitious, scandalous, impertinent, immaterial, or otherwise improper allegations in an adverse party's pleading . . . the party desiring any such amendment in an adverse party's pleading may file a timely request to revise."
II
The plaintiff has also brought three claims on behalf of the minor children: count five, sounding in emotional distress; count six, based on a violation of the duty to support pursuant to General Statutes § 46b-37; and count nine, based on the defendant's recklessness in evicting the children from the home.
The defendant provides two reasons for dismissing counts five, six and nine: the father's lack of standing to bring all three claims on behalf of the minor children and that count five and count six are also barred by the doctrine of res judicata.
In support of the standing argument, the defendant relies on Carrubba v. Moskowitz, 274 Conn. 533, 551-52, 877 A.2d 773 (2005) (a parent lacked standing to bring a legal malpractice claim on behalf of his children against a court-appointed attorney). For a person to establish third party standing over another's claims the person "(1) must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate . . . and must have some significant relationship with the party in interest . . . and (2) must provide an adequate explanation — such as inaccessibility, mental incompetence, or other disability — why the real party in interest cannot appear on his own behalf to prosecute the action." (Internal quotation marks omitted.) Carrubba v. Moskowitz, supra, 274 Conn. 552. The Carrubba court held that "[u]uder normal circumstances, parents of a minor child satisfy both prongs of this test because they are presumed to act in the best interests of the minor child. We agree with the Appellate Court, however, that, in a custody dispute, parents lack the necessary professional and emotional judgment to further the best interests of their children. Neither parent could be relied on to communicate to the court the children's interests where those interests differed from his or her own . . . A parent's judgment is or may be clouded with emotion and prejudice due to the estrangement of husband and wife." (Internal quotation marks omitted.) Id.
In reviewing the malpractice claim brought by the father against the attorney appointed for his minor children in a dissolution action, the Carrubba court specifically noted that a parent lacks the necessary professional and emotional judgment to pursue the best interests of the child in a custody dispute. Though the instant action is not a custody dispute, the father is bringing claims on behalf of the children against their mother. The high degree of emotion involved in a parental dispute, which includes claims brought by a father on behalf of his children against their mother as alleged within this complaint, falls within the penumbra of the Carrubba decision. It is apparent that the present allegations involve similar issues that would arise in a custody action in regard to the parental capacity to exercise the necessary professional and emotional judgment to pursue the best interests of the children. Given the deterioration of his relationship with their mother and the highly charged nature of the allegations of counts 5, 6, and 9, the father's capacity to truly make decisions in the best interests of his children could easily be called into question. This is underscored by the fact that the children are represented by a court-appointed attorney both in this matter and in a separate, pending custody action. In Carrubba, the court noted "that the proper test for determining whether a person is the proper party to bring an action on behalf of a minor child as a guardian or next friend is whether that person's interests are adverse to those of the child. . ." (Citations omitted; internal quotations marks omitted.) Carrubba v. Moskowitz, supra, 550. Reading the complaint most favorably to the plaintiff and in light of the fact there is independent counsel to represent the children in this matter, and a related pending custody matter, the court finds that the plaintiff's interests in pursuing the claims under counts five, six and nine are adverse to those of the children and that the plaintiff is not the proper person to bring this action. Therefore, the plaintiff lacks standing to bring these claims on behalf of his children and the court lacks subject matter jurisdiction over counts five, six and nine. Missionary Society of Connecticut v. Board of Pardons and Paroles, supra.
Plaintiff's argument that count five, count six and count nine are permissible because a child has a right to sue their parent is irrelevant because it fails to address the issue raised by the defendant in the motion to dismiss, which is whether the plaintiff has standing to bring the claim on behalf of the children.
Finally, as noted, the defendant has also moved to dismiss count five and count six on the ground that the claims are barred on the basis of res judicata. The defense of res judicata is not properly raised in a motion to dismiss and therefore does not provide a basis for the court's ruling. See Zizka v. Water Pollution Control Authority, supra, 195 Conn. 687.
CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss is granted as to counts five, six and nine, and is denied as to counts one, three, four, seven and eight.