Opinion
WWMFA134015577S
09-26-2017
Gordon Merkel v. Marlene Hill
UNPUBLISHED OPINION
RULING ON MOTION TO DISMISS RE Motion #144
Angelo L. dos Santos, Senior Judge.
The issue presented by the defendant, Marlene Hill, is whether the court should grant her motion to dismiss the plaintiff's motion for modification of custody orders on the ground that the plaintiff has failed to allege a material and substantial change in circumstances. The court heard the motion on June 28, 2017 where the defendant was represented by counsel and the plaintiff was self-represented. For the reasons indicated, the defendant's motion to dismiss is denied.
PROCEDURAL HISTORY
On January 27, 2017, the defendant filed a motion to dismiss; (Docket Entry no. 144); the plaintiff's December 16, 2015 motion for modification of custody orders; (Docket Entry no. 108); on the ground that the plaintiff failed to allege a material and substantial change in circumstances. The motion was accompanied by a supporting memorandum of law. (Docket Entry no. 144.5). On March 31, 2017, the plaintiff filed a memorandum in support of the motion for modification and an objection to the defendant's motion to dismiss. (Docket Entry nos. 146, 147).
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.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).
The custody and visitation orders that the plaintiff seeks to modify were entered by a Massachusetts court and thereafter the judgment was filed in the state of Connecticut pursuant to General Statutes § 46b-71. Section 46b-71 provides that a foreign matrimonial judgment filed pursuant to the statute " shall become a judgment of the court of this state where it is filed and shall be enforced and otherwise treated in the same manner as a judgment of a court in this state; provided such foreign matrimonial judgment does not contravene the public policy of the state of Connecticut. A foreign matrimonial judgment so filed shall have the same effect and may be enforced or satisfied in the same manner as any like judgment of a court of this state and is subject to the same procedures for modifying, altering, amending, vacating, setting aside, staying or suspending said judgment as a judgment of a court of this state; provided, in modifying, altering, amending, setting aside, vacating, staying or suspending any such foreign matrimonial judgment in this state the substantive law of the foreign jurisdiction shall be controlling."
The defendant alleges that, under § 46b-71, the controlling substantive law is that of Massachusetts and the controlling procedural law is that of Connecticut. Under Massachusetts law, the defendant contends that a party moving for a modification must first demonstrate that a " material and substantial change in circumstances of the parties has occurred." Mass. Gen. Laws Ann. ch. 208, § 28 (" Upon a complaint after a divorce, filed by either parent or by a next friend on behalf of the children after notice to both parents, the court may make a judgment modifying its earlier judgment as to the care and custody of the minor children of the parties provided that the court finds that a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children"). The defendant argues that the father has failed to allege such a change in circumstances, and that this is a necessary prerequisite for a modification, without which, the court is deprived of subject matter jurisdiction.
The pro se father conceded as much at the June 28, 2017 hearing on the motion at issue.
The defendant's motion to dismiss is brought under Connecticut procedural law, specifically Practice Book § § 10-30, 25-12, and 15-8. Practice Book § 15-8 pertains to a judgment of dismissal for failure to make a prima facie case at trial, and as such, is plainly inapplicable to the present stage of the case. Practice Book § § 10-30 and 25-12 govern motions to dismiss in civil and family court, respectively. Neither of these sections of the Practice Book, however, provide for dismissal for a failure to allege a necessary element of a claim. Furthermore, none of the Massachusetts cases cited by the defendant implicate subject matter jurisdiction. On the contrary, they were resolved based on factual findings regarding a lack of change in circumstances. See, e.g., Della Corte v. Ramirez, 81 Mass.App.Ct. 906, 961 N.E.2d 601 (2012). The court notes further that both parties agreed, and the defendant admitted, at a February 3, 2017 hearing on a separate motion to dismiss of the mother under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), General Statutes § 46b-115 et seq., that Connecticut has subject matter jurisdiction. (See Pl.'s Ex. 1; Docket Entry no. 118).
This undercuts the mother's argument that an evidentiary hearing is not required.
After the court's careful consideration of the defendant's motion, the court denies the motion to dismiss.
The court, therefore, need not determine: (i) whether there has occurred a sufficient change in circumstances; (ii) whether Massachusetts law precludes modification without a substantial change in circumstances notwithstanding it being in the best interests of the child; (iii) whether General Statutes § 46b-56 provides the court with the authority to modify the orders based solely on the best interests of the child; or (iv) whether, under § 46b-71, a custody order made without a hearing on the best interests of the child would contravene this state's public policy.