Opinion
No. FA 06 4004870S
February 8, 2007
MEMORANDUM OF DECISION RE MOTION #102, #107
The instant matter was brought by the plaintiff, Michelle Lebejko, on September 8, 2006, with a return date of September 26, 2006. In her complaint she claims to have married the defendant, David Lebejko, on January 19, 2001, in Moosup, Connecticut; that there were two children born issue of the marriage, Carter Lebejko born August 5, 2001 and Crosby Lebejko born November 4, 2003; that the husband or wife lived in Connecticut at the time of the marriage, moved away, and then returned to Connecticut, planning to live here permanently; that the marriage has broken down irretrievably and there is no possibility of getting back together (No Fault Divorce). In her prayer for relief she requests the following:
1. A divorce
2. A fair division of the property and debts
3. Alimony
4. Child Support
5. Post majority educational support of the children ( § 46b-56c C.G.S.)
6. Joint legal custody, primary residence with the plaintiff
The defendant appeared by counsel and on September 22, 2006, filed a Motion to Dismiss, Motion for Hearing Prior to the Return Date, and Motion for Stay and Determination of Jurisdiction. While the parties disagree as to many of the facts in their various pleadings, there does not appear to be any dispute as to the fact that the plaintiff arrived in Connecticut with her two children on or about March 17, 2006. While she did return to Florida for a brief time in July of 2006, she was essentially a resident of Connecticut subsequent to March 17, 2006. The court's file reflects that the defendant was served in hand on August 30, 2006, at Uncasville, Connecticut. For purposes of this discussion the court will assume that the plaintiff and her children were residents of the State of Connecticut from March 17, 2006 until service of the complaint on August 30, 2006. That is a period of time of approximately five and one-half months. A hearing on the defendant's motions was held before the court on September 26, 2006. The plaintiff and defendant both testified at the hearing. It is the plaintiff's position that Connecticut has acquired "Home State" status for purposes of child custody jurisdiction pursuant to § 46b-115k(a)(3). The defendant contends that it is Florida which is the "Home State" pursuant to § 46b-115k(a)(2). The defendant is requesting that the court stay all proceedings relative to custody orders pending a determination of this issue by the Florida court. There is also an action pending before the Court for the 15th Judicial District of the State of Florida at Palm Beach Gardens, Florida, involving the same parties and apparently the same issues regarding custody jurisdiction.
A civil action is commenced on the date on which the writ of summons is served on the defendant. Feldman v. Sebastian, 261 Conn. 721, 729, 805 A.2d 713 (2002).
Connecticut General Statutes § 46b-115a(7) provides that "Home State" means the state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months old, the term means the state in which the child lived from birth with any such parent or person acting as a parent. A period of temporary absence of any such person is counted as part of the period.
The issue before the court therefore, at this juncture, is whether or not the State of Connecticut can exercise subject matter jurisdiction as to the custody of the parties' two minor children.
A motion to dismiss properly attacks the jurisdiction of the court to entertain subject matter jurisdiction in a family matter. PB § 25-13. "When a motion to dismiss is filed questioning subject matter jurisdiction it must be disposed of before there can be other proceedings." Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 243, 558 A.2d 986 (1989). "Jurisdiction is the power of a court to hear and to determine the cause of action presented to it." Demar v. Open Space Conservation Commission, 211 Conn. 416, 424, 559 A.2d 1103 (1989);
For subject matter jurisdiction the court must first, have cognizance of the class of cases to which the one to be adjudged belongs, second, the proper parties must be present and third, the point to be decided must be, in substance and effect, within the issue. Doublewal Corporation v. Toffolon, 195 Conn. 384, 390, 488 A.2d 444 (1985); Lobsenz v. Davidoff, supra. The Superior Court clearly has jurisdiction over actions for dissolution of marriage in general, but the source of jurisdiction over a particular dissolution action depends upon compliance with the statutory provisions which create and give the requirements for jurisdiction. Broaca v. Broaca, 181 Conn. 463, 465, 435 A.2d 1016 (1980); Kennedy v. Kennedy, 177 Conn. 47, 49-50, 411 A.2d 25 (1979); see also Demar v. Open Space Conservation Commission, supra, 425. There is no subject matter jurisdiction unless a statute provides for it. Dunham v. Dunham, 97 Conn. 440, 446, 117 A. 504 (1922). Even though a dissolution action is equitable in nature; Gluck v. Gluck, 181 Conn. 225, 228, 435 A.2d 35 (1980); it is a cause of action created by statute. Steele v. Steele, 35 Conn. 48, 54 (1968).
In ruling on a motion to dismiss, the trial court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. Ganim v. Smith Wesson Corp, 258 Conn. 313, 326, 780 A.2d 98 (2001). See also, Savage v. Aronson, 214 Conn. 256, 264, 871 A.2d 696 (1990).
Power of the court regarding custody is controlled by § 46b-56. With regard to the issue of custodial orders involving the minor children, the court's ability to consider and rule upon these issues is governed by the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") ch. 815p Conn. Gen. Statutes. Section 46b-115k of the Connecticut General Statutes specifies when and how a court may do so. Section 46b-115k(1) provides that such authority is conferred only when Connecticut is the child's "home state" as of the date of the "commencement" of the child custody proceeding. "Home state" status is defined in § 46b-115a(7) of the Connecticut General Statutes. When this action was "commenced" on September 8, 2006 the parties' children had not lived here for the requisite 6-month period as required by § 46b-115a(7); subsection (1) of § 46b-115k is, therefore, inapplicable. The court will consider the "commencement" date as that dictated by § 46b-115a(5) for custodial issues rather than that previously cited for civil action.
Sec. 46b-115k. Initial Child custody jurisdiction. (a) Except as otherwise provided in section 46b-115n, a court of this state has jurisdiction to make an initial child custody determination if: (1) This state is the home state of the child on the date of the commencement of the child custody proceeding: (2) This state was the home state of the child within six months of the commencement of the child custody proceeding, the child is absent from the state, and a parent or a person acting as a parent continues to reside in this state; (3) A court of another state does not have jurisdiction under subdivisions (1) or (2) of this subsection, the child and at least one parent or person acting as a parent have a significant connection with this state other than mere physical presence, and there is substantial evidence available in this state concerning the child's care, protection, training and personal relationships; (4) A court of another state which is the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under a provision substantially similar to section 46b-115q or section 46b-115r, the child and at least one parent or person acting as a parent have a significant connection with this state other than mere physical presence, and there is substantial evidence available in this state concerning the child's case, protection, training and personal relationships; (5) All courts having jurisdiction under subdivisions (1) to (4), inclusive, of this subsection have declined jurisdiction on the ground that a court of this state is the more appropriate forum to determine custody under a provision substantially similar to section 46b-115q or section 46b-115r; or (6) No court of any other state would have jurisdiction under subdivisions (1) to (5), inclusive, of this subsection.
(b) Subsection (a) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.
§ 46b-115a(5). "Commencement" means the filing of the first pleading in a proceeding. The first pleading in the instant matter was the writ, summons and complaint filed with the court on September 8, 2006.
Sec. 46b-115a(7). "Home state" means the state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months old, the term means the state in which the child lived from birth with any such parent or person acting as a parent. A period of temporary absence of any such person is counted as part of the period.
The defendant is of the opinion that subsection (2), which creates a "look back" provision would provide that Florida has jurisdiction inasmuch as the minor children had resided there within the six months before the commencement of the proceedings. This section is codified in Florida as Fla. Stat. ch. 61.514(1)(a).
The state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.
The plaintiff argues, however, that Florida does not have jurisdiction under subsection (2) because the statutory requirement that Florida must have been the "home state" within the six months before this case commenced means that the children must have resided in Florida for the entire six months prior to the filing or commencement of this case. Her argument would seem to be supported by a literal reading of the definition of "home state" as previously set forth in footnote 1 which requires that the child must have "lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding . . ."
The plaintiff argues that neither forum meets the requirement that the children live with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. Based upon this reading of the statutes, the plaintiff posits that no state meets the definition of "home state" under subsection (1) or (2) and that the court must then look to subsection (3) of § 46b-115k(a). The plaintiff asserts that under subsection (3) the court must examine the evidence regarding "whether Connecticut would have jurisdiction to enter custody orders" by showing that "the child and at least one parent . . . have a significant connection with the state . . . and there is substantial evidence available in this state concerning the child's care, protection, training and personal relationships." The court should then employ the "significant connections" test under subsection (3) and examine the facts to see what ties the children have to the competing states. The plaintiff then goes on to provide a cogent and extensive factual analysis which would serve to demonstrate that under this test Connecticut should assert jurisdiction, that as a matter of equity the defendant should be estopped from choosing Florida for child custody purposes. In her conclusion, the plaintiff states that "the most significant connections for plaintiff are in Connecticut, where her family support, her living arrangements, her support with child care, her health care and her recovery treatment is." Therefore, Connecticut meets the legal requirements for home state jurisdiction under UCCJEA § 46b-115k(a)(3).
A court of another state does not have jurisdiction under subdivisions (1) or (2) of this subsection, the child and at least one parent or person acting as a parent have a significant connection with this state other than mere physical presence, and there is substantial evidence available in this state concerning the child's care, protection, training and personal relationships.
Historically the issue of conflicting jurisdiction created unnecessary conflict and confusion for both the parties and the courts involved in this area of the law, not to mention a lack of consistent results.
In 1968 the National Conference of Commissioners of Uniform State Laws proposed the Uniform Child Custody Jurisdiction Act ("UCCJA"). "The stated purpose of the UCCJA was to avoid jurisdictional competition and conflict, promote cooperation between states, discourage the use of the interstate system to continue custody controversies, deter abductions, avoid litigation in different states, and facilitate enforcement of custody decrees between states. All fifty states and the District of Columbia and the Virgin Islands adopted the UCCJA. However, many states departed from its original text, and subsequent litigation produced substantial inconsistencies in interpretation among state courts — defeating the goals of a uniform interstate jurisdictional act.
In 1981 a significant federal statute was passed by the United States Congress. That statute, the Parental Kidnapping Prevention Act ("PKPA"), 28 U.S.C. § 1738A, was aimed at interstate custody problems that continued to exist after the adoption of the UCCJA. All mandated states to apply full faith and credit to interstate custody decisions." Welch-Rosen v. Roberts, 202 Ariz. 201-206-208 (App. 2002) 42 P.3d 1166 (2002). Internal quotations and citations omitted.
The purpose behind the PKPA was to eliminate the four "bases" or "factors" in the original UCCJA which had resulted in all of the conflicts and resulting inconsistencies which had created an unworkable and non-uniform interstate act. Instead, enforceability under the PKPA was to be based on the priority of home state jurisdiction. That provision of the uniform act was adopted in Connecticut as Conn. Gen. Stat. § 46b-115k.
Unfortunately a conundrum exists in reaching a determination of "home state" when one applies the dictates of the Act to the facts in this case. For UCCJEA purposes the proceeding here in Connecticut was "commenced" upon the filing of the divorce complaint in court — September 8, 2006. As of that date the minor children and their mother had only resided in Connecticut for a period of five and one-half months. The plaintiff thus fails to comply with § 46b-115k(a)(1); that "this state is the home state of the child on the date of the commencement of the child custody proceeding"; while a literal reading of subsection (2) that "this state was the home state of the child within six months of the commencement of the child custody proceedings, the child is absent from the state, and a parent or person acting as a parent continues to reside in this state" would seem to indicate that Connecticut could exercise custody jurisdiction the language of § 46b-115a(7) requiring a six-month look-back period, sets up a conflict between the two sections.
Taking a look at the Florida proceeding, the case there was "commenced" on September 6, 2006, the date of filing there. As of that date it had been five months and twenty days since the children had resided in Florida. Therefore, subsection (1) would not appear to apply, nor, upon a literal reading of subsection (2) in conjunction with § 46b-115a(7), would subsection (2). Under this analysis neither state would have jurisdiction under subsections (1) or (2). This is essentially the position taken by the plaintiff who would then ask the court to look to subsection (3) and its "significant connections" test. To do so would be to violate the intent of the UCCJEA and force a return to the analysis that had created nationwide problems under the UCCJA.
This court's research has revealed that this conundrum has been found to exist before. It is certainly not a matter of "first impression" here in Connecticut. An analysis of statutory construction must be undertaken in order to resolve the conflicts and to advance the purpose behind the legislation.
When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. (Internal quotation marks omitted.) State v. Tabone, 279 Conn. 527, 534-35, 902 A.2d 1058 (2006). "We construe each sentence, clause or phrase to have a purpose behind it . . . In addition, we presume that the legislature intends sensible results from the statutes it enacts . . . Therefore, we read each statute in a manner that will not thwart its intended purpose or lead to absurd results . . . Words in a statute must be given their plain and ordinary meaning . . . unless the context indicates that a different meaning was intended . . . No word or phrase in a statute is to be rendered mere surplusage . . . In applying those principles, we keep in mind that the legislature, is presumed to have intended a reasonable, just and constitutional result." (Citation omitted; internal quotation marks omitted.) Hibner v. Bruening, 78 Conn.App. 456, 459, 828 A.2d 150 (2003). "If, after examining such test and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . .
Fine Homebuilders, Inc. v. Perrone, 98 Conn.App. 852, 857 (2006). Because the UCCJEA sought to avoid the multi-jurisdictional conflicts, competition and inconsistent results which existed under the UCCJA the conflict should be resolved with an eye towards strengthening rather than diluting the intent behind the act. In this regard the court has reviewed the compelling analysis provided by Judge Frazzini in Veecock-Little v. Little, 2006 Ct.Sup. 15201 (DN FA 06 402040, Judicial District of New Haven at New Haven, August 18, 2006) [ 42 Conn. L. Rptr. 75] which in large measure accepted the reasoning of the Court of Appeals of Arizona, Division One, in Welch-Doden v. Roberts, 202 Ariz. 201 (App. 2002). The essence of that analysis construed "home state" for purposes of initial jurisdiction as not limited to the six-month period immediately preceding the commencement of the action but to refine the applicable period to be "within six months before the commencement of the child custody proceeding." This interpretation would serve to
reconcile the two conflicting provisions, implement the primary purpose of the UCCJEA, and avoid the result of rendering subsection two of General Statutes § 46b-115k(a) meaningless . . . subsection two appears specifically intended to address the present situation of the parties that when children move with a parent from a state with home state status to another state the former state does not lose its home state status if the other parent resides there until the children have lived in the new state for six months, at which point that state has acquired home state status.
Veecock-Little, supra, 15210. See also, Stephens v. Fourth Judicial District Court, 331 Mont. 40, 128 P.3d 1026 (2006); Thomas v. Arkansas Dept. Of Human Services, 2005 Ark.App. Lexis 305.
It would appear, therefore, that Florida would be the appropriate venue for custodial orders regarding the parties two minor children, Carter, age 6 and Crosby, age 3. The UCCJEA does not mandate automatic dismissal of the action but rather provides that, as here, when there are simultaneous actions pending, § 46b-115j requires that the two courts should communicate and if it is determined by the Connecticut court that the other state has jurisdiction then the Connecticut court is required to stay its proceedings while the court of the other state (Florida) determines whether it is the more appropriate forum. This court has communicated with the clerk of the 15th Judicial District of Palm Beach, Florida and has provided that court with the status of the proceedings here. That court will be provided with a copy of this decision and, if necessary, will be contacted regarding the custodial jurisdiction issue. This court is mindful that Florida could refer the matter back to Connecticut in spite of this court's decision, however, under the UCCJEA should that court determine that it is an inconvenient forum under the act. The matter is, therefore, STAYED until such time as the Florida court makes a determination with regard to custodial jurisdiction for the minor children.
Sec. 46b-115j. Cooperation between courts; preservation of records. (a) A court of this state may request the appropriate court of another state to: (1) Hold an evidentiary hearing; (2) order a person to produce or give evidence pursuant to procedures of that state; (3) order that an evaluation be made with respect to the custody of a child involved in a pending proceeding; (4) forward to the court of this state a certified copy of the transcript of the record of the hearing, the evidence otherwise presented, and any evaluation prepared in compliance with the request; and (5) order a party to a child custody proceeding or any person having physical custody of the child to appear in the proceeding with or without the child.
(b) Upon request of a court of another state, a court of this state may hold a hearing or enter an order described in subsection (a) of this section.
(c) Travel and other necessary and reasonable expenses incurred under subsections (a) and (b) of this section may be assessed against the parties.
(d) A court of this state shall preserve the pleadings, orders, decrees, records of hearings, evaluations and other pertinent records with respect to a child custody proceeding until the child attains eighteen years of age. Upon appropriate request by a court or law enforcement official or another state, the court shall forward a certified copy of those records.
Fla. Stat. Ch. 61.519 Simultaneous proceedings. (1) Except as otherwise provided in s. 61.517, a court of this state may not exercise its jurisdiction under ss. 61.514-61.524 if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child had been commenced in a court of another state having jurisdiction substantially in conformity with this part, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under § 61.520. (2) Except as other provided in § 61.517, a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to § 61.522. If the court determines that a child custody proceeding was previously commenced in a court in another state having jurisdiction substantially in accordance with this part, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this part does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding. (3) In a proceeding to modify a child custody determination, a court of this state shall determine whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child custody determination has been commenced in another state, the court may: (a) Stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement; (b) Enjoin the parties from continuing with the proceeding for enforcement; or (c) Proceed with the modification under conditions it considers appropriate.
Sec. 46b-115k(4) provides: A court of another state which is the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under a provision substantially similar to section 46b-115q or section 46b-115r, the child and at least one parent or person acting as a parent have a significant connection with this state other than mere physical presence, and there is substantial evidence available in this state concerning the child's care, protection, training and personal relationships.
Fla. Stat. Ch. 61.514 Initial child custody jurisdiction. (1) Except as other provided in s. 61.517, a court of this state has jurisdiction to make an initial child custody determination only if: (a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state; (b) A court of another state does not have jurisdiction under paragraph (a), or a court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum under s. 61.520 or s. 61.521, and: 1. The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and 2. Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships; (c) All courts having jurisdiction under paragraph (a) or paragraph (b) have declined to exercise jurisdiction on the grounds that a court of this state is the more appropriate forum to determine the custody of the child under s. 61.520 or s. 61.521; or (d) No court of any other state would have jurisdiction under the criteria specified in paragraph (a), paragraph (b), or paragraph (c). (2) Subsection (1) is the exclusive jurisdictional basis for making a child custody determination by a court of this state. (3) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.
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