Opinion
No. FA10-4033567 S
July 28, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS (Motion #105)
FACTS
On August 16, 2011, the plaintiff, Nadine Hage-Sleiman, filed a complaint against the defendant, Foud Hage-Sleiman for the dissolution of their marriage that was entered into on August 11, 2003 in Lebanon. In the complaint, she alleges the following facts. The plaintiff has resided in Connecticut for twelve months prior to the date of this complaint. The marriage has broken down irretrievably. There are no children from this marriage and the state is not contributing to the support or maintenance of either party. A prenuptial agreement exists which states that the plaintiff is to receive $50,000 upon the termination of the marriage. The plaintiff requests a dissolution of marriage, alimony, damages, counsel fees, a division of personal and real property, restoration of her maiden name, enforcement of the marriage contract and such other rights and remedies to which she may be entitled.
On April 1, 2011, the defendant filed a motion to dismiss for lack of subject matter jurisdiction on the ground that the parties were divorced in a court of competent jurisdiction in Lebanon. The defendant also filed a memorandum of law in support of the motion along with nine exhibits. He includes the additional following allegations. The plaintiff and defendant have resided in Fairfield, Connecticut. The parties entered into a prenuptial agreement, dated August 14, 2003, terminating any right to spousal support in case of divorce. It states: "In the event of the divorce, annulment, dissolution of marriage or separation, each party agrees to and hereby waives, relinquishes, and releases the other from any duty or obligation to support the other in any fashion or manner whatsoever, which duty or obligation to support such other party may otherwise have arisen but for this Agreement, and no claim or demand for support, maintenance or alimony shall be made, now or in the future."
He further alleges that the plaintiff brought a divorce action in Lebanon and a certificate of divorce was issued by the Lebanon Ministry of Interior and Municipalities on January 27, 2010. The plaintiff and defendant were not physically present in Lebanon for the divorce nor were they required to be present under Lebanese law. The plaintiff was represented in accordance with a power of attorney that was executed on May 13, 2004 giving her representative authority to carry out her divorce proceedings. The defendant was represented by his brother, an attorney of law in Lebanon. The Shiite Sharia Court issued an order repudiating the marriage and terminating all rights the spouses had towards each other. Following this divorce, the plaintiff filed the present complaint alleging that there is a prenuptial agreement in which she is to receive $50,000 upon divorce. In the middle of August of 2010, the defendant relocated to Lebanon and, as of the beginning of 2010, he alleges that he clearly established his intention of making Lebanon his domicile by doing the following: placing his Greenwich home for sale on April 13, 2010, closing and selling his jewelry business located in White Plains, New York in January 2010, leasing an apartment in Lebanon with a start date of January 13, 2010, negotiating for retail space for his jewelry store in Lebanon in January 2010, signing a lease for one on June 25, 2010, and registering his company in Lebanon on May 6, 2010.
In response to the motion to dismiss, the plaintiff filed an objection on May 2, 2011, and adopted the defendant's exhibits, limited to the resolution of the motion to dismiss. The matter was heard on the short calendar on June 24, 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). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). "[A] motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006).
"[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., supra, 294 Conn. 213-14. "It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Id., 214.
The defendant's position is that because the parties were divorced in a court of competent jurisdiction in Lebanon, the complaint should be dismissed on the ground of a lack of subject matter jurisdiction. The defendant argues that comity requires the parties' Lebanese divorce judgment to be accorded "full force and effect" by United States courts. Specifically, he argues that, although not physically present in Lebanon at the time of the divorce action, he was domiciled in Lebanon during the pendency of the divorce action and he took clear and concise actions demonstrating his intent to return and remain there permanently. Therefore, he maintains that the Lebanese court had proper jurisdiction. Alternatively, the defendant argues that, even in the absence of his domicile in Lebanon, he satisfies the four factors required by United States courts for absentee nondomicilaries and, in addition, this court should afford the parties' Lebanese divorce decree practical recognition as a matter of equity.
"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 were 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." (Citations omitted.) In re Ma, 15 I. N. Dec. 70, 72 (1974).
Evidence submitted includes copies of the following documents:
(1) Their marriage certificate from Lebanon, certified and notarized as a true translation into English, and the original certificate.
(2) A confirmation of marriage from Lebanon, certified and notarized as a true translation into English, and the original one.
(3) A prenuptial agreement signed by both parties, and certified and notarized, on August 14, 2003.
(4) A certificate of divorce dated January 27, 2010, signed and certified as a correct translation into English.
(5) The plaintiff's power of attorney for the divorce in Lebanon, signed and certified as a correct translation into English.
(6) A divorce confirmation certified and notarized as a correct translation into English.
(7) A real estate listing contract entered into on April 13, 2010, of the Fairfield residence.
(8) The defendant's free lease contract for a place in Lebanon starting on January 13, 2010, certified as a true translation into English.
(9) The defendant's six-month commercial lease starting on July 1, 2010 for a jewelry store in Lebanon, certified and notarized as a true translation into English.
(10) The defendant's company registration certificate for his jewelry store in Lebanon dated May 6, 2010, certified and notarized as a true translation into English.
In response the plaintiff counters that the motion to dismiss should be "denied as it fails to comport with state and federal law regarding marriage." In particular, the plaintiff argues the following: comity due a foreign divorce is only granted if that country had proper jurisdiction which requires that one person must be a domiciliary of that nation for that judgment to receive full force and effect; at the time of the divorce, the defendant was neither present nor domiciled in Lebanon; the defendant's reliance on the four factors for the recognition of foreign divorces, in the absence of nondomiciliaries, constitutes a marriage for purposes of an immigration and naturalization proceeding, not a divorce proceeding and is not precedent for this state; her position is not inconsistent with her prior actions by having applied for a religious divorce from the foreign country; and even if a divorce without domicile may be valid in another country, it is not valid in the state of Connecticut.
Comity
"The full faith and credit clause of the constitution of the United States does not apply to a divorce obtained in a foreign country. 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. The principle of comity, however, 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." (Citations omitted.) Litvaitis v. Litvaitis, 162 Conn. 540, 544-45, 295 A.2d 519 (1972). In the context of divorce proceedings, "an internationally foreign decree will be accorded treatment similar to a judgment of one of our sister states, unless it is found to be repugnant to some basic public policy of the state." Yoder v. Yoder, 31 Conn.Sup. 344, 347, 330 A.2d 825 (1974).
"A divorce judgment is a judgment in rem . . . 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 . . . The traditional requisite for subject-matter jurisdiction in matrimonial proceedings has been domicil. Under our system of law, judicial power to grant a divorce . . . is founded on 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; internal quotation marks omitted.) Litvaitis v. Litvaitis, supra, 162 Conn. 545-46.
Domicile is "[a] person's legal home." (Internal quotation marks omitted.) Nirookh v. Aburabei, Superior Court, judicial district of New Haven at Meriden, Docket No. FA 09 4012235 (May 25, 2010, Burke, J.) ( 49 Conn. L. Rptr. 877, 878). "To constitute domicil, the residence at the place chosen for the domicil must be actual, and to the fact of residence there must be added the intention of remaining permanently; and that place is the domicil 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.
For this court to recognize the Lebanon divorce by virtue of comity, one of the parties must have been domiciled there at the time of the divorce. "Domicil and residence are not interchangeable terms and both are essential to jurisdiction of an action for divorce." Price v. Price, 15 Conn.Sup. 1, 2 (1947). "An `address,' [however], is not a domicil, and a person may have simultaneously two or more residence addresses but only one domicil at any one time." Smith v. Smith, 174 Conn. 434, 439, 389 A.2d 456 (1978); Taylor v. Taylor, 168 Conn. 619, 621, 362 A.2d 795 (1975). "[E]very person has a domicil somewhere . . . and that a domicil once acquired continues until another is established." (Internal quotation marks omitted.) McDonald v. Hartford Trust Co., 104 Conn. 169, 177, 132 A. 902 (1926). "[A] former domicil persists until a new one is acquired . . . Therefore proof of the acquisition of a new domicil of choice is not complete without evidence of an abandonment of the old." (Citations omitted; internal quotation marks omitted.) Rice v. Rice, 134 Conn. 440, 446, 58 A.2d 563 (1948), aff'd, 336 U.S. 674, 69 S.Ct. 751, 93 L.Ed. 957 (1949). It is well established that in order "to effect a change of one's legal domicil, two things are indispensable: First, residence in a new domicil; and, second, the intention to remain there. The change cannot be made, except facto et animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change." Sun Printing Publishing Assn. v. Edwards, 194 U.S. 377, 383, 24 S.Ct. 696, 48 L.Ed. 1027 (1904); see also Linardos v. Fortuna, 157 F.3d 945, 948 (2d Cir. 1998) (in an appeal from the federal District of Connecticut, the court stated that domicile does not change until the person is physically present in the new place).
While it is true that the plaintiff and defendant were married in Lebanon in 2003, both have resided in Connecticut for a period of time. The defendant in his memorandum of law states: "Following their marriage, the plaintiff and defendant remained in Lebanon for a certain period of time until [the] plaintiff's U.S. immigration process was complete based on the marriage to [the] defendant, following which they came to the United States a few months after their marriage in Lebanon. The couple resided together in Fairfield, Connecticut in a marital residence located at 1663 Stratfield Road . . ." The plaintiff brought the divorce action in Lebanon and received a certificate of divorce dated January 14, 2010. Neither party appeared for the divorce, but both were represented in accordance with a power of attorney. Since the defendant can have only one domicile at a time and had not abandoned his Connecticut residence until he physically resided in Lebanon in August 2010, he was not a domiciliary of Lebanon at the time of the divorce. Consequently, this court cannot recognize the Lebanon divorce decree under the principle of comity.
If this court were to apply the four factors from In re Ma, as the defendant argues it should, the result would be the same. "In [ In re 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.' [ In re Ma, supra, 15 I. N. Dec. 72.] 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 . . . [it] [did] not recognize [the] divorce as valid for immigration purposes.' Id." (Internal quotation marks omitted.) Suarez v. Arias, Superior Court, judicial district of Ansonia-Milford, Docket No. FA 08 4010313 (July 23, 2010, Turner, J.) ( 50 Conn. L. Rptr. 347, 349).
Research has revealed that the Suarez case is the only one in Connecticut to cite In re Ma as part of its discussion to resolve whether to give comity to the Ecuadorian divorce decree obtained between the plaintiff, Gladys Suarez, and the defendant, Carlos Arias. The court in Suarez concluded that it could not "recognize the divorce by the Ecuadorian [court] by virtue of comity" because neither party was domiciled there when the divorce was obtained in Ecuador notwithstanding the parties were citizens of Ecuador, married in Ecuador, and had obtained a consensual divorce in Ecuador. Suarez v. Arias, supra, 50 Conn. L. Rptr. 349.
Practical Recognition
Since neither the plaintiff nor the defendant was a good faith domiciliary of Lebanon at the time of the divorce, the question now becomes whether, as the defendant argues, it is appropriate to grant practical recognition to that judgment. The defendant maintains that "it would be inequitable to allow the [p]laintiff to challenge the validity of the Lebanese divorce decree [as] [she] previously participated in and consented to the Lebanese divorce."
Whether both parties agreed to obtain the divorce in Lebanon is a nonissue. Their consent could not empower the courts in Lebanon with the jurisdiction necessary to dissolve their marriage. "[P]arties 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).
"[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, the 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) . . . Bruneau v. Bruneau,[ 3 Conn.App. 453, 456-57, 489 A.2d 1049 (1983)].
"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 . . . 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." (Citation omitted; internal quotation marks omitted.) Suarez v. Arias, supra, 50 Conn. L. Rptr. 349.
The defendant argues that the principle of estoppel should prevent the plaintiff from attacking the validity of the Lebanese divorce decree since "she brought the Lebanese divorce action, participated in the action by authorizing a power of attorney to act on her behalf, and based on the Lebanese divorce decree, the parties relied on the finality of the foreign divorce decree." Thus, the defendant maintains, the plaintiff is taking a position inconsistent with her past conduct. In addition, the defendant points out that the parties had signed a prenuptial agreement on August 14, 2003, which precluded any right to spousal support and never mentioned a payment of $50,000 to the plaintiff upon termination of the marriage, and, in the divorce confirmation from Lebanon, the plaintiff "consented to and knowingly waived her right to any claims against [him]." In response, the plaintiff asserts that in no manner did she rely on the finality of the Lebanon divorce action — that is, she did not remarry, start living with another man, take any money from the defendant or in anyway benefit from it. Further, she argues that the existence and validity of a prenuptial agreement is not the subject of a motion to dismiss and, therefore cannot be determined by this court.
The defendant argues that the $50,000 the plaintiff is claiming is not mentioned in the prenuptial agreement but is the deferred dowry payment referenced in the Marriage Confirmation that he should not be required to pay to the plaintiff.
"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.
As the court stated in Suarez, "[t]here is no evidence before this court that holding the divorce to be invalid [would] unset relationships or expectations formed in reliance upon the divorce . . . 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." (Citations omitted; internal quotation marks omitted.) Suarez v. Arias, supra, 50 Conn. L. Rptr. 350.
In the present case, neither the plaintiff nor the defendant has remarried. Further, there is no evidence of the plaintiff receiving any benefits from the invalid divorce which should estop her from now challenging the dissolution in this state. "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 . . . 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." (Citations omitted.) Suarez v. Arias, supra, 50 Conn. L. Rptr. 350.
"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 . . . Moreover, [this] 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." (Citation omitted; internal quotation marks omitted.) Suarez v. Arias, supra, 50 Conn. L. Rptr. 350-51. In the present case, it does not appear that the plaintiff's intentions in challenging the foreign divorce decree are motivated primarily by the prospect of financial gain.
"[T]he court may also consider how long the malcontented party waited before making the legal challenge" in its determination as to "whether a party should be estopped from attacking a foreign divorce . . . 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) ([w]ife 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." Suarez v. Arias, supra, 50 Conn. L. Rptr. 351.
In the present case, the plaintiff filed the dissolution in the state of Connecticut seven months after the divorce confirmation. She is still a resident of Connecticut and has not remarried. While the defendant has moved back to Lebanon, he also has not remarried. As in Suarez, the parties "have not substantially change[d] their positions in reliance on the divorce through marriage or otherwise, and the plaintiff has not accepted any benefits that flowed from it." This court will not give practical recognition to the Lebanese divorce decree. Therefore, it is not inequitable for this court to allow the dissolution action to go forward. The defendant's motion to dismiss for a lack of subject matter jurisdiction is denied.