Opinion
AC 44033
07-26-2022
Cheryl Abbott OLSON v. Brian Matthew OLSON
Alexander J. Cuda, Westport, for the appellant (defendant). Thomas M. Shanley, Greenwich, for the appellee (plaintiff).
Alexander J. Cuda, Westport, for the appellant (defendant).
Thomas M. Shanley, Greenwich, for the appellee (plaintiff).
Elgo, Clark and Bishop, Js.
BISHOP, J.
The defendant, Brian Matthew Olson, appeals from the judgment of the trial court granting a motion to dismiss filed by the plaintiff, Cheryl Abbott Olson, in which the court concluded that it lacked subject matter jurisdiction to modify the parties’ spousal support order that had been issued by a court of the United Kingdom. On appeal, the defendant claims that the trial court erred in dismissing his motion for modification of alimony on the basis that it lacked subject matter jurisdiction, and argues that (1) the court misapplied the Uniform Interstate Family Support Act, General Statutes § 46b-301 et seq., in determining that the United Kingdom had continuing, exclusive jurisdiction over the spousal support order; (2) the United Kingdom could not have continuing, exclusive jurisdiction because it lost its exclusiveness when the trial court, S. Richards, J. , decided motions to modify alimony in 2013; (3) the application of the doctrine of comity demonstrates that Connecticut courts have jurisdiction to modify the foreign country order in this case; (4) the trial court erred in its reliance on this court's decision in Hornblower v. Hornblower , 151 Conn. App. 332, 94 A.3d 1218 (2014) ; and (5) the court erroneously relied on a United Kingdom statutory instrument, the Reciprocal Enforcement of Maintenance Orders (United States of America) Order 2007, in determining that the United Kingdom had continuing, exclusive jurisdiction to modify the support order. On the basis of our thorough review of the record and the applicable law, we agree with the defendant that the court erred in concluding that it lacked subject matter jurisdiction to modify the spousal support order at issue. Accordingly, we reverse the judgment of the trial court. The record reveals the following facts and procedural history. The parties, who are United States citizens,
were married on May 30, 1998, in Doylestown, Pennsylvania. The parties later moved to the United Kingdom and were present there in November, 2009. On December 16, 2009, a court of the United Kingdom dissolved the parties’ marriage and incorporated the parties’ November 19, 2009 consent order into its final judgment. The consent order was a separation agreement, which provided for the distribution of the parties’ property and assets and for the payment of spousal and child support.
In or around 2010, the parties moved back to the United States. The plaintiff relocated to Connecticut and the defendant moved to New York. On April 5, 2010, the plaintiff filed the United Kingdom divorce decree with the trial court in Connecticut under principles of comity. On January 25, 2011, the plaintiff filed a motion seeking an order to enforce the parties’ foreign judgment of dissolution and approve two Qualified Domestic Relations Orders (QDROs) prepared by an attorney retained by both parties. On March 7, 2011, the court, Wenzel, J. , granted, by agreement of the parties, the plaintiff's motion for order to enforce judgment, postjudgment, and entered the two QDROs as orders of the court.
Subsequently, in May, 2011, the plaintiff sought a modification of alimony in the Superior Court for the judicial district of Stamford-Norwalk. She argued, among other things, that the parties’ marital judgment provides that "[e]ither party will remain at liberty during the continuation of the periodical payments to apply for an upward or downward variation, or termination or capitalism of such maintenance." (Internal quotation marks omitted.) Accordingly, she argued that a "substantial change of circumstances has arisen since the entry of the orders of the [United Kingdom] court on December 16, 2009, in that the defendant's income from
employment, salary, and bonus structure have significantly changed such that the plaintiff's receipt of alimony is greatly reduced based upon the present formula."
On July 5, 2012, the defendant similarly sought a modification of the spousal support order in the same court as the plaintiff's filing, alleging that the plaintiff began living with another person, resulting in a change in the circumstances contemplated in General Statutes § 46b-86 (b).
The trial court, S. Richards, J. , considered the motions for modification but ultimately denied them in a memorandum of decision dated October 4, 2013. The court did not deny the motions for modification on the basis of a want of jurisdiction; rather, the motions were denied because of a failure of supporting evidence and procedural defects in the plaintiff's motion. The court stated that the "the plaintiff requests a modification of the court-ordered alimony under paragraph 2 (d) of the parties’ separation agreement based on a substantial change in circumstances. Upon reviewing the plaintiff's pleading, the court denies the plaintiff's motion for modification on the grounds that the plaintiff failed to state the specific factual and legal basis for the claimed modification in accordance with Practice Book § 25-26 (e), failed to provide the court with the applicable substantive law of the controlling jurisdiction and failed to provide the court with currency conversion calculations." The court similarly denied the defendant's motion for modification, concluding that the "defendant did not provide the court with any evidence of the applicable substantive law of the controlling jurisdiction that would permit the modification of alimony on the basis
During oral argument before this court and in her appellate brief, the plaintiff asserted that the court in 2013 had denied the parties’ respective motions for modification on the basis that the court lacked jurisdiction. This is not an accurate portrayal of the court's memorandum of decision.
of a showing of cohabitation or a substantial change in circumstances pursuant to Connecticut law." However, the court exercised jurisdiction over the marital judgment by ordering the defendant to make specific payments in accordance with it, to wit, payments of $8552 and $184,479, which represented the plaintiff's share of certain stock owed to her.
On August 19, 2019, the defendant filed a new motion for modification of alimony asking the court to modify alimony due to the plaintiff's cohabitation. On September 11, 2019, the plaintiff also filed her own motion to modify alimony and child support seeking an increase of both. In October, 2019, the parties worked with the caseflow office of the Superior Court for the judicial district of Stamford-Norwalk to schedule the motions to be heard on January 28, 2020.
On January 23, 2020, five days before the scheduled hearing, the plaintiff filed a motion to dismiss the defendant's motion to modify alimony, arguing for the first time that the court lacked subject matter jurisdiction to modify the judgment. On January 27, 2020, the defendant filed an objection to the plaintiff's motion through which he argued, inter alia, that the court had jurisdiction to consider the motion and that "the plaintiff's position sets up a double standard that cannot possibly be sustained: that when the plaintiff sought modification of the existing alimony order in 2011, this court had jurisdiction to consider such motion but now that the defendant seeks the same relief, the court lacks jurisdiction to act." (Emphasis omitted.) He argued that the "plaintiff's sole purpose in filing the motion to dismiss is to delay the impending hearing on the defendant's motion to modify.... If the plaintiff genuinely had a question as to this court's subject matter jurisdiction, that objection would have, and should have, been raised in 2010 when the plaintiff asked this court to domesticate the judgment, in 2011 when the plaintiff
filed her first motion to modify alimony, or prior to the plaintiff filing her pending motion seeking a modification of alimony and child support, rather than five days before the scheduled hearing." (Emphasis omitted.) The defendant also noted that the plaintiff filed a motion to dismiss solely with respect to the defendant's motion for modification despite her also having filed a motion for modification.
In a memorandum of decision dated February 21, 2020, the trial court, McLaughlin, J. , concluded that the court did not have subject matter jurisdiction to modify the parties’ foreign country spousal support order on the basis of its belief that the United Kingdom had continuing, exclusive jurisdiction over it. In particular, the court stated that, "under the United Kingdom's Reciprocal Enforcement of Maintenance Orders (United States of America) Order 2007 ([REMO]), the courts of the United Kingdom keep exclusive jurisdiction over all maintenance orders." In support of this conclusion, the court quoted the explanatory note to the REMO, which states in relevant part: "The principal modification effected by [the REMO] is that a maintenance order made in the United States of America may not be varied or revoked in the United Kingdom and that a maintenance order made in the United Kingdom may not be varied or revoked in the United States of America (see sections 5 and 9 in Schedule 2)." The court, however, recognized that the explanatory note is not a part of the REMO itself. The court then stated: "Neither party provided the court with evidence that the courts of the United Kingdom have released or waived their exclusive jurisdiction to modify the maintenance orders in the consent order. While the court recognizes that all parties currently reside in the United States of America, including the minor children, which may make modification of support orders more complicated, based on the clear language of [General Statutes] § 46b-321 (b),
this court lacks subject matter jurisdiction to modify the United Kingdom's spousal support orders." The defendant timely appealed.
This case requires us to interpret the Uniform Interstate Family Support Act (UIFSA) to determine whether Connecticut courts lack subject matter jurisdiction to modify spousal support orders issued by a court of the United Kingdom. See General Statutes § 46b-301 et seq. The plaintiff argues that the court properly interpreted UIFSA in reaching its conclusion that the court lacked subject jurisdiction. The defendant argues that the court's determination was erroneous. We agree with the defendant.
We begin with the standard of review governing a trial court's disposition of a motion to dismiss that challenges jurisdiction. "A determination regarding a trial court's subject matter jurisdiction is a question of law." (Internal quotation marks omitted.) Rocky Hill v. SecureCare Realty, LLC , 315 Conn. 265, 276, 105 A.3d 857 (2015). "[O]ur review of the court's ultimate legal conclusion[s] and resulting [determination] of the motion to dismiss will be de novo." (Internal quotation marks omitted.) Feehan v. Marcone , 331 Conn. 436, 446, 204 A.3d 666, cert. denied, U.S., ––– U.S. ––––, 140 S. Ct. 144, 205 L. Ed. 2d 35 (2019). "In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Markley v. State Elections Enforcement Commission , 339 Conn. 96, 106, 259 A.3d 1064 (2021). "[T]he Superior Court of this state as a court of law is a court of general jurisdiction. It has jurisdiction of all matters expressly committed to it and of all others cognizable by any law court of which the exclusive jurisdiction is not given to some other court. The fact that no other court has exclusive
jurisdiction in any matter is sufficient to give the Superior Court jurisdiction over that matter." (Internal quotation marks omitted.) In re Joshua S. , 260 Conn. 182, 215, 796 A.2d 1141 (2002). "[T]he general rule of jurisdiction ... is that nothing shall be intended to be out of the jurisdiction of a Superior Court but that which specially appears to be so; and ... nothing shall be intended to be within the jurisdiction of an inferior court but that which is expressly so alleged.... [N]o court is to be ousted of its jurisdiction by implication." (Internal quotation marks omitted.) Raftopol v. Ramey , 299 Conn. 681, 695, 12 A.3d 783 (2011).
"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 ... [we] first ... consider the text of the statute itself and its relationship to other statutes. If, after examining such text 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.... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter...." (Internal quotation marks omitted.) Kinsey v. Pacific Employers Ins. Co. , 277 Conn. 398, 405, 891 A.2d 959 (2006).
As background, UIFSA is one of numerous uniform acts drafted by the National Conference of Commissioners on Uniform State Laws in the United States. "UIFSA,
which has been adopted by all states, including Connecticut, governs the procedures for establishing, enforcing and modifying child and spousal support, or alimony, orders, as well as for determining parentage when more than one state is involved in such proceedings." (Footnote added; footnote omitted.) Hornblower v. Hornblower , supra, 151 Conn. App. at 333, 94 A.3d 1218 ; see also General Statutes § 46b-301 et seq. ; Studer v. Studer , 320 Conn. 483, 487, 131 A.3d 240 (2016).
In 1996, Congress mandated the enactment of UIFSA as a precondition to states’ eligibility for obtaining federal grant money to fund child and spousal support programs. See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, § 321, 110 Stat. 2105, 2221, codified as amended at 42 U.S.C. § 666 (f). Congress later passed the Preventing Sex Trafficking and Strengthening Families Act, Pub. L. No. 113-183, § 301 (f), 128 Stat. 1919, 1944–95 (2014), requiring states to adopt amendments to UIFSA, again as a precondition to certain federal funding. Connecticut adopted these amendments pursuant to No. 15-71 of the 2015 Public Acts, titled "An Act Adopting the Uniform Interstate Family Support Act of 2008."
In this appeal, we are asked to determine whether § 46b-321 (b) divested the court of subject matter jurisdiction to modify the United Kingdom spousal support order that is at the heart of this dispute. Section 46b-321 (b) provides: "A tribunal of this state may not modify a spousal support order issued by a tribunal of another state or a foreign country having continuing, exclusive jurisdiction over that order under the law of that state or foreign country." From this text, it is clear that, although Connecticut courts do not have subject matter jurisdiction over a spousal support order issued by a court of another state or a foreign country having continuing, exclusive jurisdiction over that order, a Connecticut court does have subject matter jurisdiction to modify a spousal support order issued in another state or a foreign country if that state or foreign country
We note that the jurisdictional rules under UIFSA differ for child support orders. See General Statutes § 46b-393 ; see also General Statutes §§ 46b-315 and 46b-388.
does not, by the terms of its laws, maintain continuing, exclusive jurisdiction over the spousal support order at issue. Accordingly, we must determine whether the United Kingdom, under its laws, has continuing, exclusive jurisdiction to modify the spousal support order in question.
Although not material to the question before us, it appears that all the states of the United States, by adopting UIFSA, maintain continuing, exclusive jurisdiction to modify spousal support orders originally issued in each respective state. See Thomson Reuters, Alimony, Maintenance, and other Spousal Support, 50 STATE STATUTORY SURVEYS: Family Law: Divorce and Dissolution (May 2021); see also General Statutes § 46b-321 (a) ("[a] tribunal of this state issuing a spousal support order consistent with the law of this state has continuing, exclusive jurisdiction to modify the spousal support order throughout the existence of the support obligation").
Both before the trial court and this court, the plaintiff argued that the REMO makes clear that the United Kingdom retains continuing, exclusive jurisdiction to modify the spousal support order at issue and that the trial court correctly so held. The defendant argues that the United Kingdom does not have continuing, exclusive jurisdiction to modify the spousal support order, and argues that the REMO does not preclude a Connecticut court from modifying the United Kingdom support order at issue.
REMO is a United Kingdom order, which, among other things, designates the United States of America as a reciprocating country with the United Kingdom for the purposes of the Maintenance Orders (Reciprocal Enforcement) Act, 1972, c. 18 (U.K.).
The trial court, in determining that the United Kingdom maintained exclusive jurisdiction over the present spousal support order, stated: "[U]nder the United Kingdom's Reciprocal Enforcement of Maintenance Orders (United States of America) Order 2007 ... the courts of the United Kingdom keep exclusive jurisdiction over all maintenance orders. There is no distinction in the [REMO] of spousal support [versus] child support. The term ‘maintenance orders’ appears to apply to both.
Moreover, the court found the explanatory notes of this order instructive. The explanatory notes state in pertinent part ‘[t]he principal modification effected by [the REMO] is that a maintenance order made in the United States of America may not be varied or revoked in the United Kingdom and that a maintenance order made in the United Kingdom may not be varied or revoked in the United States of America (see sections 5 and 9 in Schedule 2).’ " (Emphasis in original; footnote omitted.)
Our review of the REMO mandates a different conclusion. First, there is a serious question as to whether the provision in the REMO relied on by the plaintiff for her contention that the United Kingdom retains exclusive jurisdiction to modify the order is even applicable to the circumstances presented. Section 5 of Schedule 2 of the REMO, titled "Variation and revocation of maintenance order made in United Kingdom," begins: "(1) This section applies to a maintenance order certified copies of which have been sent in pursuance of section 2 to the United States of America for enforcement. " (Emphasis added.) Reciprocal Enforcement of Maintenance Orders (United States of America) Order, 2007, S.I. 2007/2005, schedule 2, § 5 (U.K.). Section 2 of Schedule 2 details the process by which a party may obtain and send certified copies to the United States. It thus
Section 2 of Schedule 2 provides: "(1) Subject to subsection (2) below, where the payer under a maintenance order made, whether before, on or after 1st October 2007, by a court in the United Kingdom is residing or has assets in the United States of America, the payee under the order may apply for the order to be sent to the United States of America for enforcement.
"(2) Subsection (1) above shall not have effect in relation to an order made by virtue of a provision of Part II of this Act.
"(3) Every application under this section shall be made in the prescribed manner to the prescribed officer of the court which made the maintenance order to which the application relates.
"(4) If, on an application duly made under this section to the prescribed officer of a court in the United Kingdom, that officer is satisfied that the payer under the maintenance order to which the application relates is residing or has assets in the United States of America, the following documents, that is to say—
"(a) three certified copies of the maintenance order;
"(b) a certificate signed by that officer certifying that the order is enforceable in the United Kingdom;
"(c) a certificate of arrears so signed or, in Scotland, signed by the applicant or his solicitor;
"(d) a sworn statement signed by the payee giving the following information—
"(i) the address of the payee;
"(ii) such information as is known as to the whereabouts of the payer; and
"(iii) a description, so far as is known, of the nature and location of any assets of the payer available for execution;
"(e) a statement giving such information as the officer possesses for facilitating the identification of the payer; and
"(f) where available, a photograph of the payer; shall be sent by that officer, in the case of a court in England and Wales or Northern Ireland, to the Lord Chancellor, or, in the case of a court in Scotland, to the Scottish Ministers, with a view to their being transmitted by him to the responsible authority in the United States of America if he is (or they are) satisfied that the statement relating to the whereabouts of the payer and the nature and location of his assets gives sufficient information to justify that being done.
"(5) Nothing in this section shall be taken as affecting any jurisdiction of a court in the United Kingdom with respect to a maintenance order to which this section applies, and, subject to section 5 below, any such order may be enforced, varied or revoked accordingly." Reciprocal Enforcement of Maintenance Orders (United States of America) Order, 2007, S.I. 2007/ 2005, schedule 2, § 2 (U.K.).
appears that fulfillment of the requirements under section 2 is a condition precedent to section 5's application. None of those conditions was fulfilled in this case because, as noted, the United Kingdom judgment was simply registered in Connecticut pursuant to commonlaw notions of comity.
Second, even if we were to assume that the provisions in the REMO relied on by the plaintiff are applicable to the circumstances presented here, nowhere in the context of the REMO is it manifest that the United Kingdom retains exclusive jurisdiction to modify the spousal support order at issue. Section 5 of Schedule 2 of the REMO further provides: "(2) The jurisdiction of a court in the United Kingdom to revoke, revive or vary a maintenance order shall be exercisable notwithstanding that the proceedings for the revocation, revival
or variation, as the case may be, of the order are brought by or against a person residing in the United States of America." Section 5 then sets forth certain conditions related to notice that a court of the United Kingdom must undergo before it makes any variation or revocation to an order originally made in the United Kingdom.
Although it appears from these provisions that the United Kingdom maintains continuing jurisdiction to modify a spousal support order initiated in the United Kingdom, as noted, we have not found any language in the REMO that demonstrates that the United Kingdom keeps exclusive , rather than concurrent , jurisdiction to modify the spousal support order in this case. To import language into the REMO that is not present would, in our view, not only be legally incorrect, but it would work an unreasonable burden on the parties in this case—two citizens of the United States who have returned home to the United States with no indication that they intend to return to the United Kingdom. While the states of the United States have made explicit in their laws that their jurisdiction over such orders is "exclusive," the United Kingdom's REMO is conspicuously devoid of similar limiting language.
See, e.g., General Statutes § 46b-321 (a) ("[a] tribunal of this state issuing a spousal support order consistent with the law of this state has continuing, exclusive jurisdiction to modify the spousal support order throughout the existence of the support obligation" (emphasis added)); Mass. Gen. Laws c. 209D, § 2-211 (a) (Cum. Supp. 2021) ("[a] tribunal of the commonwealth issuing a spousal support order consistent with the law of the commonwealth has continuing, exclusive jurisdiction to modify the spousal support order throughout the existence of the support obligation" (emphasis added)); N.Y. Jud. Ct. Acts § 580-211 (a) (McKinney Cum. Supp. 2021) ("[a] tribunal of this state issuing a spousal-support order consistent with the law of this state has continuing, exclusive jurisdiction to modify the spousal-support order throughout the existence of the support obligation" (emphasis added)).
We note, in particular, that in rendering its decision, the trial court did not cite to any particular provisions of the REMO to support its conclusion that it lacked
jurisdiction. Rather, it cited to an "Explanatory Note" published at the end of the order, which states in no uncertain terms: "This note is not part of the Order." See Rubie's Costume Co. v. United States, 337 F.3d 1350, 1359 (Fed. Cir. 2003) (explanatory notes not legally binding in international tariff dispute). Connecticut courts "cannot, by judicial construction, read into legislation provisions that clearly are not contained therein." (Internal quotation marks omitted.) Regan v. Regan , 143 Conn. App. 113, 121, 68 A.3d 172, cert. granted, 310 Conn. 923, 77 A.3d 140 (2013) (appeal dismissed October 15, 2014). Because the order was clear and unambiguous as written, it was inappropriate for the court to go beyond the text of the law. See Apple, Inc. v. United States , 964 F.3d 1087, 1095–96 (Fed. Cir. 2020) (explanatory notes "cannot be used to ... create ambiguity").
Although the dissent has found some United Kingdom case law to suggest that some United Kingdom courts in some contexts have used explanatory notes as aids to statutory construction in the United Kingdom, it is far from clear that this practice is commonplace there, and, even if so, whether judges in the United States should yield their well trodden methods of statutory construction to the preferences of a foreign legislative body and judiciary.
In addition to our review of the REMO, we similarly have found no other United Kingdom authority that makes clear to this court that the United Kingdom retains exclusive jurisdiction over the spousal support order at issue. We note that the plaintiff provided very little to both this court and the trial court about the foreign law and how it demonstrates the United Kingdom's exclusivity to modify the order. Other than providing a brief history of UIFSA and a copy of the REMO, it provided little or no context, cases, or analysis of how the REMO, a 2007 United Kingdom order, is interpreted by United Kingdom courts; how it was affected, if at all, by the ratification of the Hague Convention on the International Recovery of Child Support and Other
Forms of Family Maintenance by the European Union in 2014; or if there was any impact on the REMO in light of the United Kingdom's withdrawal (or rather the then anticipated withdrawal) from membership in the European Union.
At bottom, "[i]t is not the court's duty, unaided by the [plaintiff], to scour the annals of the law of the ... United Kingdom in an effort to locate or to fashion a hook upon which [her motion] can be hung." Heath v. American Sail Training Assn. , 644 F. Supp. 1459, 1471 (D.R.I. 1986). In light of the foregoing, and in light of the well-known maxim that "every presumption favoring jurisdiction should be indulged"; (internal quotation marks omitted) Financial Consulting, LLC v. Commissioner of Ins. , 315 Conn. 196, 226, 105 A.3d 210 (2014) ; we conclude that the trial court did not lack subject matter jurisdiction to entertain the defendant's motion to modify alimony. The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
The defendant makes various other arguments in support of his claim that the court erred in determining that it lacked subject matter jurisdiction. Among these arguments is his contention that the plaintiff should be precluded, under the rationale employed in Sousa v. Sousa , 322 Conn. 757, 143 A.3d 578 (2016), from challenging subject matter at this late juncture because it amounts to an impermissible collateral attack. See id., at 771–72, 143 A.3d 578 ("[A]lthough challenges to subject matter jurisdiction may be raised at any time, it is well settled that [f]inal judgments are ... presumptively valid ... and collateral attacks on their validity are disfavored.... A collateral attack on a judgment is a procedurally impermissible substitute for an appeal.... [A]t least where the lack of jurisdiction is not entirely obvious, the critical considerations are whether the complaining party had the opportunity to litigate the question of jurisdiction in the original action, and, if [she] did have such an opportunity, whether there are strong policy reasons for giving [her] a second opportunity to do so." (Citations omitted; emphasis omitted; internal quotation marks omitted.)). The defendant argues that raising subject matter jurisdiction at this late stage, especially when the plaintiff herself previously has filed multiple motions for modification, results in an impermissible attack of Judge Richards’ 2013 judgment deciding the parties’ motions to modify alimony.
In light of our resolution of this case, we need not reach this very interesting question (or the other arguments proffered by the defendant), and we leave for another day the question of whether finality considerations should preclude a plaintiff, like the plaintiff in this case, from challenging a court's subject matter jurisdiction to modify an alimony order when the trial court previously exercised jurisdiction over the plaintiff's own motion to modify that same alimony order, even in a case, such as this, in which the court did not modify the original order.
In this opinion CLARK, J., concurred.
ELGO, J., dissenting.
The issue presented in this appeal is whether the Superior Court lacked subject matter jurisdiction over a motion to modify a spousal support decree that was issued in the United Kingdom. In resolving that issue, I believe that the trial court properly considered the explanatory note to the statutory instrument in question, the Reciprocal Enforcement of Maintenance Orders (United States of America) Order 2007 of the United Kingdom (order). Reciprocal Enforcement of Maintenance Orders (United States of America) Order, 2007, S.I. 2007/2005, (U.K.). The explanatory note provides necessary context to the enactment of that order and convinces me that the trial court properly determined that it lacked subject matter jurisdiction over the spousal support decree due to the continuing, exclusive jurisdiction of the United Kingdom. Accordingly, I respectfully dissent.
The underlying facts are largely undisputed and are aptly set forth in the majority opinion. The jurisdictional challenge presented in this appeal involves a question of statutory construction, over which our review is plenary. See Nelson v. Dettmer , 305 Conn. 654, 662, 46 A.3d 916 (2012).
I
In Connecticut, our courts are guided by the familiar maxim that "[w]hen 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 .... In seeking to determine that meaning ... [a reviewing court must] first ... consider the text of the statute itself and its relationship to other statutes. If, after examining such text 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." (Citation omitted; internal quotation marks omitted.) State v. Kalil, 314 Conn. 529, 557–58, 107 A.3d 343 (2014). Statutory language is ambiguous when, read in context, it is susceptible to more than one reasonable interpretation. See Foisie v. Foisie, 335 Conn. 525, 531–32, 239 A.3d 1198 (2020). In such instances, our courts "may consult extratextual sources" to resolve the issue. State v. Fernando A. , 294 Conn. 1, 17, 981 A.2d 427 (2009).
As this court has observed, the Uniform Interstate Family Support Act (UIFSA), General Statutes § 46b-301 et seq., "has been adopted by all states, including Connecticut ... [and] governs the procedures for establishing, enforcing and modifying child and spousal support, or alimony, orders, as well as for determining parentage when more than one state is involved in such proceedings." (Footnote omitted.) Hornblower v. Hornblower , 151 Conn. App. 332, 333, 94 A.3d 1218 (2014). Relevant to this appeal is General Statutes § 46b-321 (b), which provides: "A tribunal of this state may not modify a spousal support order issued by a tribunal of another state or a foreign country having continuing, exclusive jurisdiction over that order under the law of that state or foreign country." The plaintiff, Cheryl
General Statutes § 46b-302 (5) defines " ‘[f]oreign country’ " in relevant part as "a country ... other than the United States, that authorizes the issuance of support orders and (A) which has been declared under the law of the United States to be a foreign reciprocating country ... or (D) in which the [Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, concluded at The Hague on November 23, 2007 (convention); see General Statutes § 46b-302 (3) ] is in force with respect to the United States." The United States Secretary of State has declared the United Kingdom to be a "foreign reciprocating country" for the purpose of family support obligations. See 42 U.S.C. § 659a (2018) ; Notice of Declaration of Foreign Countries as Reciprocating Countries for the Enforcement of Family Support (Maintenance) Obligations, 73 Fed. Reg. 72,555 (November 28, 2008). Moreover, as the North Carolina Court of Appeals has noted, "[r]eciprocity currently exists under UIFSA between all American states and the following foreign jurisdictions: Australia, Austria, Bermuda ... United Kingdom (England, Wales, Scotland, Northern Ireland)." (Internal quotation marks omitted.) Foreman v. Foreman , 144 N.C. App. 582, 585, 550 S.E.2d 792, review denied, 354 N.C. 68, 553 S.E.2d 38 (2001). In addition, the convention has been ratified by both the United States and the United Kingdom.
Abbott Olson, submits, and the trial court agreed, that the order establishes the continuing, exclusive jurisdiction over spousal support decrees that are issued in the United Kingdom.
The critical issue, then, concerns the proper construction of the order. The order is a "statutory instrument" that was issued pursuant to the powers conferred by §§ 40 and 45 (1) of the Maintenance Orders (Reciprocal Enforcement) Act, 1972 (act), a legislative enactment
Section 40 of the act provides: "Where Her Majesty is satisfied—
"(a) that arrangements have been or will be made in a country or territory outside the United Kingdom to ensure that maintenance orders made by courts in the United Kingdom against persons in that country or territory can be enforced in that country or territory or that applications by persons in the United Kingdom for the recovery of maintenance from persons in that country or territory can be entertained by courts in that country or territory; and
"(b) that in the interest of reciprocity it is desirable to ensure that maintenance orders made by courts in that country or territory against persons in the United Kingdom can be enforced in the United Kingdom or, as the case may be, that applications by persons in that country or territory for the recovery of maintenance from persons in the United Kingdom can be entertained by courts in the United Kingdom,
"Her Majesty may by Order in Council make provision for applying the provisions of this Act, with such exceptions, adaptations and modifications as may be specified in the Order, to such orders or applications as are referred to in paragraphs (a) and (b) above and to maintenance and other orders made in connection with such applications by courts in the United Kingdom or in that country or territory." Maintenance Orders (Reciprocal Enforcement) Act, 1972, c. 18, § 40 (U.K.), available at https://www.legislation.gov.uk/ukpga/1972/18/section/40/enacted (last visited July 20, 2022).
Section 45 (1) of the act provides: "An Order in Council under section 1, section 25 or section 40 of this Act may be varied or revoked by a subsequent Order in Council thereunder, and an Order made by virtue of this section may contain such incidental, consequential and transitional provisions as Her Majesty considers expedient for the purposes of that section." Maintenance Orders (Reciprocal Enforcement) Act, 1972, c. 18, § 45 (1) (U.K.).
of Parliament that specifically pertains to the reciprocal enforcement of maintenance orders in the United Kingdom or a reciprocating country. In the United Kingdom, statutory instruments are used to "fill in the details of Acts" and, when so authorized by Parliament, "to amend existing laws." See UK Parliament, "What Is Secondary Legislation?," available at https://www.parliament.uk/about/how/laws/secondary-legislation/ (last visited July 20, 2022). They "are published with an explanatory memorandum, which outlines the purpose of the [statutory instrument] and why the change is necessary." Id.
The order was issued on July 25, 2007, at which time UIFSA had been adopted in every state in the United States. See, e.g., O'Donnell v. Abbott , 393 F. Supp. 2d 508, 514 n.14 (W.D. Tex. 2005) (noting that "[e]very state has adopted either the 1996 or 2001 version of [UIFSA]"), aff'd, 481 F.3d 280 (5th Cir. 2007) ; Bouquety v. Bouquety , 933 So. 2d 610, 611 n.1 (Fla. App. 2006) (noting that "Congress required all states to enact UIFSA by January 1, 1998," and that "[b]y the year 2000, UIFSA was in effect in all states"). The order begins by stating that "Her Majesty is ... satisfied that arrangements have been made in the United States of America to ensure that maintenance orders made by courts in the United Kingdom can be enforced in the United States of America. Her Majesty is also satisfied that in the interests of reciprocity it is desirable to ensure that maintenance orders made by courts in the United States of America can be enforced in the United
Kingdom...." Schedule 2, § 1 (1), of the order similarly provides in relevant part that "Her Majesty, if satisfied that, in the event of the benefits conferred by the Part of the Act being applied to ... maintenance orders made by the courts of any country or territory outside the United Kingdom, similar benefits will in that country or territory will be applied to ... maintenance orders made by the courts of the United Kingdom ...."
The order then outlines procedures for two distinct scenarios. The first involves the "[t]ransmission of [a] maintenance order made in the United Kingdom for enforcement in the United States of America." Schedule 2, § 2 (1), of the order provides in relevant part: "[W]here the payer under a maintenance order made ... by a court in the United Kingdom is residing or has assets in the United States of America, the payee under the order may apply for the order to be sent to the United States of America for enforcement ." (Emphasis added.) The order then addresses the "[v]ariation and revocation of [a] maintenance order made in the United Kingdom" and Schedule 2, § 5 (1), of the order specifically indicates that "[t]his section applies to a maintenance order certified copies of which have been sent in pursuance of [§] 2 to the United States of America for enforcement." Section 5 (2) of the order further provides that "[t]he jurisdiction of a court in the United Kingdom to revoke, revive or vary a maintenance order shall be exercisable notwithstanding that the proceedings for the revocation, revival or variation, as the case may be, of the order are brought by or against a person residing in the United States of America." (Emphasis added.) Schedule 2, § 5, of the order then addresses various situations in which a modification order is varied or revoked by a court in the United Kingdom. By its plain language, the order contemplates only the enforcement of a maintenance order made in the United Kingdom
by a court in the United States. It does not contemplate the revocation or variance of such an order by a United States court.
The second scenario addressed by the order involves the "[r]egistration in [a] United Kingdom court of [a] maintenance order made in the United States of America." Schedule 2, § 6, of the order provides that "a maintenance order made ... by a court in the United States of America" shall be registered in a United Kingdom court upon receipt of a certified copy thereof. Schedule 2, § 8, of the order then addresses the enforcement of such a maintenance order registered in the United Kingdom and § 9 addresses the "[v]ariation and revocation of [a] maintenance order registered in [a] United Kingdom [c]ourt," stating in relevant part: "(1) Where a registered order has been varied by a court in the United States of America , the registered order shall ... have effect as varied by that order. ... (2) Where a registered order has been revoked by a court in the United States of America , the registered order shall ... be deemed to have ceased to have effect." (Emphasis added.) The order thus expressly contemplates a United States court revoking or varying a maintenance order that originally was made by a United States court.
Because the order by its plain terms is amendatory in nature, in that it expressly sets forth numerous "modifications" to the act with respect to the United States and orders the amendment or substitution of various sections, I believe it is necessary to also consider the relevant provisions of the act, as originally enacted in 1972. See 1A N. Singer & J. Singer, Sutherland Statutory Construction (7th Ed. 2009) § 22:29, p. 349 ("[t]o ascertain the meaning of amendatory language, courts must look to prior law"); id., § 22:32, p. 377 ("[t]he original act must be compared with the amendment to determine what defect or defects in the original act the legislature intended to remedy"); see also
State v. AFSCME, Council 4, Local 1565 , 249 Conn. 474, 478–80, 732 A.2d 762 (1999) (comparing text of statute and recent amendment to that statute to construe its meaning); Turner v. Turner , 219 Conn. 703, 717, 595 A.2d 297 (1991) ("[a]ccording to well established principles of statutory construction, an amendment that construes and clarifies a prior statute operates as the legislature's declaration of the meaning of the original act"). Significantly, § 9 of the act, as enacted in 1972, authorized a United Kingdom court to vary or revoke a maintenance order that originally was made in a reciprocating country and registered in a United Kingdom court. The order, however, eliminates the authority of a United Kingdom court to vary or revoke a maintenance order made by a United States court.
Section 9 (1) of the act previously provided in relevant part that a court of the United Kingdom in which a maintenance order made in a reciprocating country was registered "(a) shall have the ... power, on an application made by the payer or payee under a registered order, to vary or revoke the order as if it had been made by the registering court and as if that court had had jurisdiction to make it; and (b) shall have power to vary or revoke a registered order by a provisional order." Maintenance Orders (Reciprocal Enforcement) Act, 1972, c. 18, § 9 (1) (U.K.).
In both the act and the order, § 9 is titled "Variation and revocation of maintenance order registered in United Kingdom Court."
Section 5 of the act, as originally enacted in 1972, likewise permitted "a competent court in a reciprocating country" to vary or revoke a maintenance order made by a United Kingdom court. By contrast, § 5 of the order, which is titled "Variation and revocation of maintenance order made in United Kingdom," omits all such references to "a competent court in a reciprocating country" and recognizes only the authority of "a court in the United Kingdom" to vary or revoke a maintenance order made by a United Kingdom court.
See Maintenance Orders (Reciprocal Enforcement) Act, 1972, c. 18, § 5 (7) and (8) (U.K.).
It is axiomatic that statutory provisions are not to be read in isolation, but must be read in light of their
"relationship to the broader statutory scheme." Foisie v. Foisie , supra, 335 Conn. at 531, 239 A.3d 1198 ; see also Norris v. Trumbull , 187 Conn. App. 201, 219, 201 A.3d 1137 (2019) ("[w]e do not read statutory language in isolation, but rather must consider it within the context of the statute as a whole and in harmony with surrounding text"). Schedule 2, § 5 (2), of the order specifically provides that "[t]he jurisdiction of a court in the United Kingdom to revoke, revive or vary a maintenance order shall be exercisable notwithstanding that the proceedings for the revocation, revival or variation, as the case may be, of the order are brought by or against a person residing in the United States of America." (Emphasis added.) When viewed in relation to the broader statutory scheme set forth in the order and the act—which both provide for the reciprocal enforcement of domestic maintenance orders as a matter of international law—I would conclude that Schedule 2, § 5, of the order is susceptible to more than one reasonable interpretation as to whether it recognizes the "continuing, exclusive jurisdiction"; see General Statutes § 46b-321 (b) ; of United Kingdom courts over maintenance orders that were made in the United Kingdom and subject to enforcement in the United States. For that reason, I believe that Schedule 2, § 5, is ambiguous, and thus resort to extratextual materials is warranted. See Foisie v. Foisie , supra, at 531, 239 A.3d 1198 ; State v. Fernando A. , supra, 294 Conn. at 17, 981 A.2d 427.
Appended to the order is an "Explanatory Note" (note) that states in relevant part: "The principal modification effected by this Order is that a maintenance order made in the United States of America may not be varied or revoked in the United Kingdom and that a maintenance order made in the United Kingdom may not be varied or revoked in the United States of America ...." In addition, the United Kingdom's Ministry of Justice prepared an "Explanatory Memorandum" to the order
(memorandum) that was "laid before Parliament by Command of Her Majesty." That memorandum similarly explains that the order "remove[s] the power of courts in the United Kingdom to vary or revoke incoming orders which makes the application consistent as the competent authorities in the United States do not have a power to vary orders from the United Kingdom ." (Emphasis added.) See Explanatory Memorandum to the Reciprocal Enforcement of Maintenance Orders (United States of America) Order 2007 and the Recovery of Maintenance (United States of America) Order 2007, available at https://www.legislation.gov.uk/uksi/2007/2005/pdfs/uksiem_20072005_en.pdf (last visited July 20, 2022). In opposing the motion to dismiss, the defendant, Brian Matthew Olson, provided no extratextual material to rebut the proposition set forth in the note and the memorandum.
Explanatory memoranda are prepared by government officials to supplement an explanatory note. J. Caird, Public Legal Information and Law-Making in Parliament, Parliament and the Law (A. Horne & G. Drewry eds., 2d Ed. 2018) p. 158.
I also observe that, in Hornblower v. Hornblower , supra, 151 Conn. App. at 333, 94 A.3d 1218, this court "examine[d] the provisions" of UIFSA. At issue in that appeal was the proper interpretation of General Statutes § 46b-212d (c). Id., at 336, 94 A.3d 1218. Although this court did not find any provision of that statute ambiguous, it did not confine its review to the text of the statute itself and its relationship to other statutes. Rather, the court discussed the "historical and statutory notes" to that statute; id., at 337, 94 A.3d 1218 ; and then extensively detailed certain comments to the uniform code on which UIFSA was modeled. See id., at 337–38, 94 A.3d 1218. Given this court's reliance on those "statutory notes" and the comments to a model code in interpreting a provision of our General Statutes, I fail to see how the trial court's reliance on the note in the present case was improper.
To my mind, those explanatory materials resolve any issue as to the intent of the order and persuade me that the trial court properly determined that it lacked subject matter jurisdiction over the spousal support decree in question due to the continuing, exclusive jurisdiction of the United Kingdom.
II
The foregoing analysis is predicated on the assumption that the analytical framework for statutory interpretation under Connecticut law governs the present
dispute. I respectfully submit that this assumption may be flawed and that a reviewing court tasked with construing a statutory enactment of a foreign country instead must apply the precepts applicable in that foreign jurisdiction.
As one noted treatise has observed, "[o]ne question that arises [when construing a foreign statute] is whether to follow the forum state's or the state of origin's rules of construction. Some courts look to their own ... rules of statutory interpretation to resolve the issue. But probably the better approach invokes the state of origin's interpretive rules .... Courts are more likely to achieve uniform application of statute law and avoid some of the uncertainties entailed by foreign suits if they apply the interpretive rules to which a foreign statute ordinarily is subject." (Footnotes omitted.) 2 S. Singer, Statutes and Statutory Construction (8th Ed. 2022) § 38:5, pp. 124–25; see also Magee v. Huppin-Fleck , 279 Ill. App. 3d 81, 88, 215 Ill.Dec. 849, 664 N.E.2d 246 (1996) (in case involving interpretation of foreign statute, court applied "principles of statutory construction adhered to" by courts of that foreign jurisdiction); Alropa Corp. v. Smith , 240 Mo. App. 376, 381, 199 S.W.2d 866 (1947) ("[i]n ascertaining the effect of ... the foreign statutes, courts of the forum will construe the statutes of the [foreign] state as construed by its courts and follow the rules of law of the [foreign] state" (internal quotation marks omitted)).
In ( Carbone v. Nxegen Holdings, Inc. , Superior Court, judicial district of Hartford, Docket No. CV-13-6039761-S (October 3, 2013) 57 Conn. L. Rptr. 36, 2013 WL 5781103 ), the Superior Court noted that it "could find no Connecticut authority concerning what rules of construction should apply in
interpreting the meaning of another state's statute. As a matter of first impression, the court believes it would be illogical for a Connecticut statute to determine how a [foreign] statute should be interpreted. It is presumed that each set of legislators had their own rules of statutory interpretation in mind when drafting their respective statutes, so [that foreign jurisdiction's] rules of statutory interpretation should be applied to best implement the intended meaning of the [foreign] statute." Id., at 42 n.4. I concur with that assessment, particularly in a case such as this, which involves foreign relations and international agreements. See ESAB Group, Inc. v. Zurich Ins. PLC , 685 F.3d 376, 388 (4th Cir. 2012) ("[w]here a statute touches upon foreign relations and the United States’ treaty obligations, we must proceed with particular care in undertaking this interpretive task"); see also United States v. Curtiss-Wright Export Corp. , 299 U.S. 304, 319, 57 S. Ct. 216, 220, 81 L. Ed. 255 (1936) (foreign relations is "vast external realm" that presents "important, complicated, delicate and manifold problems"); de Fontbrune v. Wofsy , 838 F.3d 992, 994 (9th Cir. 2016) ("this appeal illustrates the difficulty that can arise in determining foreign law and the confusion surrounding the role of foreign law in domestic proceedings"); Al-Bihani v. Obama , 619 F.3d 1, 39 (D.C. Cir. 2010) (Kavanaugh, J., concurring) ("[c]ourts are ... rightly hesitant to construe foreign affairs statutes more narrowly than the text indicates").
When construing a statutory enactment, Connecticut's courts are guided by "considerations of the constitutional separation of powers [and] respect for the authority of a coordinate branch of government ...." Mueller v. Tepler , 312 Conn. 631, 661, 95 A.3d 1011 (2014). Principles of judicial restraint, as well as the legislative mandate of General Statutes § 1-2z, preclude our courts from considering extratextual evidence when no ambiguity exists. See, e.g.,
Marciano v. Jimenez , 324 Conn. 70, 75–76, 151 A.3d 1280 (2016) ("we ... will not consider extratextual evidence of the meaning of a statute unless the text is ambiguous or would yield an absurd or unworkable result"); State v. Cayo , 143 Conn. App. 194, 202, 66 A.3d 887 (2013) ("[i]f the meaning is clear and workable, we do not consider extratextual evidence").
The legislative process in the United Kingdom is altogether different, as the legislative and executive branches of government frequently work in tandem to craft and amend legislative acts. For that reason, the analytical framework that governs statutory interpretation in Connecticut is inapposite when construing statutory instruments. Indeed, statutory instruments in the United Kingdom are akin to executive orders issued by our governor pursuant to authority conferred by the General Assembly. The statutory instrument at issue here was promulgated not by Parliament, but rather by the executive branch pursuant to the authority granted under §§ 40 and 45 (1) of the act. See footnote 2 of this dissenting opinion.
Whereas acts of Parliament are considered "primary legislation" in the United Kingdom, statutory instruments are considered "secondary" or "delegated" legislation that are enacted pursuant to authority conferred by an enabling act of Parliament. Statutory instruments are drafted by ministerial agencies and, depending on the authorization contained in the enabling act, are scrutinized by Parliament in a manner described as either an affirmative or negative procedure. The order here was "subject to [the] negative resolution procedure"; see Explanatory Memorandum to the Reciprocal Enforcement of Maintenance Orders (United States of America) Order 2007 and the Recovery of Maintenance (United States of America) Order 2007, supra; and was automatically approved when Parliament took no action to annul. See UK Parliament, supra. Significantly,
"Parliament can either approve or reject [a statutory instrument], but cannot amend it." Id. For that reason, explanatory notes and explanatory memoranda to statutory instruments play a major role in facilitating parliamentary scrutiny. See J. Caird, Public Legal Information and Law-Making in Parliament, Parliament and the Law (A. Horne & G. Drewry eds., 2d Ed. 2018) p. 158. Although explanatory notes routinely incorporate the caveat that they are "not part" of legislation, decisional law from the United Kingdom indicates that explanatory notes nonetheless are "admissible" as aids to statutory construction of both primary and secondary legislation. In the seminal case of Westminster City Council v. National Asylum Support Service , [2002] UKHL 38 (H.L.), Lord Steyn observed: "In 1999 a new [legislative practice] was introduced. It involves publishing [e]xplanatory [n]otes alongside the majority of public bills introduced .... The texts of such notes are prepared by the [g]overnment department responsible for the legislation. The [e]xplanatory [n]otes do not form part of the [b]ill, are not endorsed by Parliament and cannot be amended by Parliament. The notes are intended to be neutral in political tone: they aim to explain the effect of the text and not to justify it. The purpose is to help the reader to get his bearings and
As the majority correctly notes, the plaintiff in this case provided very little to the trial court and this court about the foreign law in question. At the same time, "because foreign law interpretation and determination is a question of law, independent judicial research does not implicate the judicial notice and ex parte issues spawned by independent factual research under-taken by a court." de Fontbrune v. Wofsy , supra, 838 F.3d at 999. "Independent research ... together with extracts of foreign legal materials, has been and will likely continue to be the basic mode of determining foreign law." (Internal quotation marks omitted.) Id., at 997. "Although our common law system relies heavily on advocacy by the parties, judges are free to undertake independent legal research beyond the parties’ submissions. It is no revelation that courts look to cases, statutes, regulations, treatises, scholarly articles, legislative history, treaties and other legal materials in figuring out what the law is and resolving legal issues." (Emphasis in original.) Id., at 999.
to ease the task of assimilating the law.... The [e]xplanatory [n]otes accompany the [b]ill on introduction and are updated in the light of changes to the [b]ill made in the parliamentary process. Explanatory [n]otes are usually published by the time the legislation comes into force. Unlike [legislative history] material there are no costly researches involved....
"The question is whether in aid of the interpretation of a statute the court may take into account the [e]xplanatory [n]otes and, if so, to what extent. The starting point is that language in all legal texts conveys meaning according to the circumstances in which it was used. It follows that the context must always be identified and considered before the process of construction or during it. It is therefore wrong to say that the court may only resort to evidence of the contextual scene when an ambiguity has arisen.... [I]n his important judgment in Investors Compensation Scheme Ltd. v. West Bromwich Building Society [1998] 1 WLR 896, 912–13, Lord Hoffmann made crystal clear that an ambiguity need not be established before the surrounding circumstances may be taken into account. The same applies to statutory construction ....
"Again, there is no need to establish an ambiguity before taking into account the objective circumstances to which the language relates. Applied to the subject under consideration the result is as follows. Insofar as the [e]xplanatory [n]otes cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed, such materials are therefore always admissible aids to construction. They may be admitted for what logical value they have. Used for this purpose [e]xplanatory [n]otes will sometimes be more informative and valuable than reports of the Law Commission or advisory committees, [g]overnment green or white papers, and the like. After all, the connection of [e]xplanatory [n]otes with the shape of the proposed
legislation is closer than pre-parliamentary aids which in principle are already treated as admissible ...." (Citations omitted.) Id., ¶¶ 4–5.
Following that decision, United Kingdom courts often have considered explanatory notes when construing statutory instruments. See, e.g., 9 Cornwall Crescent London Ltd. v. Kensington & Chelsea , Docket No. B2/2004/1560, 2005 WL 607512 (EWCA (Civ.) March 22, 2005) ("Courts have moved away from a purely literal approach to statutory interpretation.... By ‘context’, I mean the legislative context, and the policy context, as shown by any admissible material, such as ... explanatory notes ...."); R v. Montila , [2004] UKHL 50 35, available at https://publications.parliament.uk/pa/ld200405/ldjudgmt/jd041125/mont.pdf (last visited July 20, 2022) ("[i]t has become common practice for their Lordships to ask to be shown the [e]xplanatory [n]otes when issues are raised about the meaning of words used in an enactment"); Confederation of Passenger Transport UK v. Humber Bridge Board , 2002 WL 31422280 (EWCH (Admin.) November 1, 2002) (relying in part on explanatory note to statutory instrument to support conclusion that lower court properly supplied language inadvertently omitted from order); R. Munday, "In the Wake of ‘Good Governance’: Impact Assessments and the Politicisation of Statutory Interpretation," 71 Mod. L. Rev. 385 (2008) (noting growing willingness of United Kingdom judges to employ explanatory notes as aid to interpretation); D. Greenberg, "All Trains Stop at Crewe: The Rise and Rise of Contextual Drafting," 7 Eur. J. L. Reform 31, 37–38 (2005) (discussing use of explanatory notes as aid to statutory construction and observing that "the courts have appeared to be increasingly relaxed about the use of a wide range of material produced by the executive"). As one commentator on statutory interpretation in the
United Kingdom has observed, "[i]t is the present practice that almost every [b]ill introduced [in] ... Parliament is accompanied by a set of [e]xplanatory [n]otes, prepared by the [g]overnment, and although these [n]otes declare that they are not necessarily authoritative, the courts early on established their willingness to have regard to them ... for the purpose of determining the context within which the emerging Act is construed ...." (Footnote omitted.) 96 Halsbury's Laws of England (5th Ed. 2018) p. 483.
That authority suggests that, unlike the framework for statutory interpretation under Connecticut law, courts in the United Kingdom may consider an explanatory note to a statutory instrument irrespective of whether an ambiguity exists. In the present case, the note and memorandum both provide necessary context to the enactment of the order, and leave little doubt that it was intended to memorialize the continuing, exclusive jurisdiction of the United Kingdom courts over maintenance orders made in their courts. Accordingly, I would conclude that the trial court properly determined that it lacked subject matter jurisdiction over the spousal support decree in the present case.
For the foregoing reasons, I respectfully dissent.