Opinion
No. FA 08-4039287
March 31, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#108)
The defendant has filed a motion to dismiss the plaintiff's pending motion for contempt in the above-entitled matter. The procedural and factual history recounted below is germane to the court's resolution of this controversy.
The plaintiff, Deborah Pomerantz, was divorced from the defendant, Jeffrey Pomerantz, on December 4, 2007, pursuant to a judgment of divorce that was issued on that date by the Superior Court of New Jersey Chancery Division: Family Part, Bergen County. At the time of the decree, both parties were residents of New Jersey. The divorce judgment incorporated by reference the terms of a marital settlement agreement that the parties signed and submitted to the New Jersey court on December 4, 2007. The judgment provided, inter alia, that the defendant would pay periodic spousal support of $6,250 per month to the plaintiff between January 1, 2008 and December 1, 2010. Shortly after the divorce judgment entered, the defendant moved to Connecticut.
The plaintiff subsequently remarried and is now known as Deborah Kessler.
On August 15, 2008, the plaintiff filed the New Jersey decree with this court, pursuant to the provisions of Conn. Gen. Stat. § 46b-71. That statute permits the Connecticut Superior Court to domesticate and enforce the foreign matrimonial judgments of a court ". . . of any state in the United States . . ." It also provides that a foreign judgment so filed ". . . may be enforced or satisfied in the same manner as any like judgment of a court of this state . . ."
Although the defendant initially claimed in his motion that the plaintiff had failed to comply with the statutory service requirements of the domestication statute, he abandoned those claims at hearing. The court finds that the New Jersey divorce judgment was properly registered in Connecticut.
On October 23, 2008, the plaintiff, acting pro se, filed a motion for contempt in this court. In her motion, the plaintiff alleged that the defendant was in contempt because he had allegedly failed to pay her the full alimony sum of $6,250 per month as ordered in the divorce judgment.
In a motion dated December 9, 2008, the defendant moved to dismiss the plaintiff's contempt motion on grounds that the court lacks personal jurisdiction over him. The defendant specifically contends that the domestication of foreign matrimonial judgment statutes (Conn. Gen. Stat. § 46b-70 et seq.) must be read in concert with the state's long-arm statute (Conn. Gen. Stat. § 46b-212d). He also claims that no provision of Conn. Gen. Stat. § 46b-212d vests this state with personal jurisdiction over him, and that he lacks the requisite minimal contacts with Connecticut necessary to satisfy constitutional due process requirements.
A contested evidentiary hearing concerning the defendant's motion to dismiss was held before the undersigned on February 9, 2009. The plaintiff appeared at the hearing with her counsel. The defendant did not attend the hearing, but was represented by his attorney. During the hearing, the court heard testimony which dealt primarily with the procedural history of this case, and the parties' contacts with the State of Connecticut.
The plaintiff testified at the hearing that she and the defendant both resided in New Jersey at the time the divorce was granted. The defendant, a dentist who practices in New York City, still lives in New Jersey. He has never lived in Connecticut, or done business here. The plaintiff testified that she subsequently became engaged to Mr. Kessler, who was living in Connecticut. Shortly after the divorce decree entered, she relocated to this state, and married Mr. Kessler. The parties' children had all reached the age of majority before the plaintiff moved here, although one college-aged daughter returns to Connecticut to reside with her mother and step-father during school vacations, and has registered a car in this state. The court found the plaintiff's testimony to be credible.
Lyn Kessler, the plaintiff's husband, also testified at the hearing. He related details about an encounter that he had with the defendant in December 2007, after the divorce had been granted, and prior to the plaintiff's relocation to Connecticut. On that occasion, Mr. Kessler was helping the plaintiff move her belongings. Mr. Kessler testified that he heard the defendant make a statement which indicated that Dr. Pomerantz was aware that Mr. Kessler was from Connecticut, and that the plaintiff was going to marry him. The court credited Mr. Kessler's testimony. The court infers from this evidence that the defendant had knowledge around the time of the divorce that the plaintiff would be moving to this state. However, the court does not find from this evidence that the defendant directed the plaintiff to move to Connecticut, or had any input into her decision to do so. Additionally, although the parties' divorce agreement provided that the defendant would continue to pay alimony to the plaintiff after she remarried, there was no evidence that the plaintiff's relocation to Connecticut was discussed between the parties, or consented to by the defendant, as part of the divorce settlement negotiations.
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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134 (2007). "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.) Mercer v. Rodriquez, 83 Conn.App. 251, 255 (2004). Connecticut case law is clear that when a non-resident challenges the jurisdiction of a court of this state to hear a legal controversy, the plaintiff has the burden of proving the court's jurisdiction. Solano v. Calegari, 108 Conn.App. 731, 737-38, cert. denied, 289 Conn. 943 (2008). Furthermore," [w]hen a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515 (2007).
In the present case, the defendant asserts that the court lacks personal jurisdiction over him because: (1) the plaintiff has not established that the defendant has sufficient contacts with this state as required under common-law standards of constitutional due process; and (2) because no provision of Conn. Gen. Stat. § 46b-212d applies to him. Conversely, the plaintiff argues that this court has personal jurisdiction over the defendant because Dr. Pomerantz had knowledge that the plaintiff would be moving to Connecticut, and could reasonably expect that he would be brought into court here if he violated the provisions of the parties' divorce judgment.
As a threshold matter, the court must first determine whether or not the statutes governing the enforcement of foreign matrimonial judgments in Connecticut (Conn. Gen. Stat. § 46b-70 et seq.) must be read in conjunction with the long-arm provisions set forth in Conn. Gen. Stat. § 212d. Connecticut's appellate courts have not directly addressed this specific issue. However, several Superior Court judges have ruled that Conn. Gen. Stat. § 46b-70 is not a longarm statute conferring jurisdiction, and that a court being asked to enforce a domesticated foreign judgment under that statute must also find that it has personal jurisdiction over the nonresident party. Wieduwilt v. Wieduwilt, Superior Court, judicial district of Waterbury, Docket No. FA 99-0156678 (February 22, 2000, Doherty, J.) [ 26 Conn. L. Rptr. 559]; St. Hilaire v. St. Hilaire, 41 Conn.Sup. 429 (1990) [ 2 Conn. L. Rptr. 326]; Pugliese v. Pugliese, Superior Court, judicial district of Waterbury, Docket No. P.A. 01-0169003 (May 17, 2004, Cutsumpas, J.T.R.) [ 37 Conn. L. Rptr. 54]. "[P]ersonal jurisdiction must be obtained or be obtainable in Connecticut notwithstanding that registration under the statute requires Connecticut Courts to treat the foreign divorce decree as a Connecticut decree." St. Hilaire v. St. Hilaire, supra, 434.
Connecticut General Statutes § 46b-212 is entitled the "Uniform Interstate Family Support Act." Under Conn. Gen. Stat § 46b-212a(3), the act's definitions statute, "[d]uty of support" includes "an obligation imposed or imposable by law to provide support for a . . . spouse or former spouse . . ." Per Conn. Gen. Stat § 46b-212a(21), the act encompasses the enforcement of spousal support orders.
Wieduwilt v. Wieduwilt, supra, is a case that is factually similar to the one at bar. In that case, the trial court declined to issue an order of contempt for the non-payment of alimony, despite having found that defendant had properly registered an Arizona divorce decree in Connecticut. The court found that the non-resident defendant did not have sufficient minimum contacts with this state, and concluded for that reason that it lacked personal jurisdiction over the defendant to enforce the Arizona decree.
This court is persuaded by the reasoning set forth in the trial court decisions cited above that Conn. Gen. Stat. § 46b-70 is not a longarm statute, that Conn. Gen. Stat. § 46b-212d applies in the case at bar, and that the plaintiff must prove that Connecticut has personal jurisdiction over the defendant.
"When a defendant challenges personal jurisdiction in a motion to dismiss, the court must undertake a two-part inquiry to determine the propriety of its exercising such jurisdiction over the defendant. The trial court must first determine whether the applicable state long arm statute authorizes the assertion of jurisdiction over the [defendant]. If the statutory requirements [are] met, its second obligation [is] to decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process . . . Thus, based on the facts in the record, this court must determine: first, whether [the long arm statute] properly applies to the defendant; and, second, if the statutory threshold is met, whether the defendant has the requisite minimal contacts with this state sufficient to satisfy constitutional due process concerns." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., supra, p. 514-15.
The mandated two-part analysis begins with an examination of the pertinent language of Conn. Gen. Stat. § 46b-212d. It indicates that a Connecticut tribunal ". . . may exercise personal jurisdiction over a nonresident individual if (1) The individual is personally served with process within this state; (2) the individual submits to the jurisdiction of this state by consent in a record, by entering a general appearance and failing to object to jurisdiction in a timely manner, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction; (3) the individual resided with the child in this state; (4) the individual resided in this state and provided prenatal expenses or support for the child; (5) the child resides in this state as a result of the acts or directives of the individual; (6) the individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse; or (7) there is any other basis consistent with the Constitutions of this state and the United States for the exercise of personal jurisdiction."
The evidence presented at hearing established that none of the statutory scenarios set forth in subsections one through six of Conn. Gen. Stat. § 46b-212d are applicable to the present case. However, the Connecticut Supreme Court noted recently that Conn. Gen. Stat. § 46b-212d(7) is the "most open-ended" of the jurisdictional factual scenarios contained in the longarm statute, and that any disputed factual claim that jurisdiction exists thereunder should be decided only after an evidentiary hearing is conducted by the trial court. Kenny v. Banks, 289 Conn. 529, 535, (2008), Footnote 6.
As noted previously, Conn. Gen. Stat. § 46b-212d(7) states that Connecticut may exercise personal jurisdiction over a non-resident individual if ". . . there is any other basis consistent with the Constitution of this state and the United States for the exercise of personal jurisdiction."
Footnote 6 in the Kenny v. Banks decision states: "At the hearing on the defendant's motion to dismiss, the plaintiff offered to testify that the `defendant was well aware of the fact that [she] was anticipating moving to the state of Connecticut at the time of the entry of the decree . . . [and] that [the defendant] knew at the time that this decree was entered that the parties were contemplating [the plaintiff] and the children were moving to the state of Connecticut.' We cannot conclude, on the basis of this offer of proof, that the plaintiff, as a matter of law, was unable to establish sufficient facts to support the court's exercise of long arm jurisdiction over the defendant, particularly under § 46b-212d(7), the most open-ended of the factual scenarios set forth in the long arm statute. Accordingly, a genuine issue of material fact remained for the court to resolve after a hearing."
Mindful that the plaintiff in the present case has asserted a factual claim that personal jurisdiction exists over the defendant, and believing that subsection seven of Conn. Gen. Stat. § 46b-212d implies that the trial court will conduct a "sufficiency of minimum contacts" due process analysis, this court finds that the plaintiff has a legal and factual basis for bringing a claim in this case that personal jurisdiction exists over the defendant under the provisions of Conn. Gen. Stat. § 46b-212d(7).
Having determined that the applicable Connecticut longarm statute asserts the authorization of personal jurisdiction in this matter, the court must next focus on the second prong, namely, the issue of whether or not the defendant's contacts with Connecticut were sufficient enough to satisfy constitutional due process standards. "[I]n order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he must have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." (Emphasis in original; internal quotation marks omitted.) Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 52 (1983), quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). In applying the minimum contacts test, "[t]he court must look at the totality of the party's conduct and collection with this state and determine whether the party could have reasonably anticipated being haled into court in Connecticut." (Internal citations omitted.) Cashman v. Cashman, 41 Conn.App. 382, 389 (1996).
"The due process clause of the fourteenth amendment to the United States constitution operates as a limitation on the jurisdiction of state courts to enter judgments affecting rights or interests of nonresident defendants." Panganiban v. Panganiban, 54 Conn.App. 634, 638, cert. denied, 251 Conn. 920 (1999); citing Shafner v. Heitner, 433 U.S. 186, 198-200 (1977). "All assertions of state-court jurisdiction must be evaluated in accordance with the standards set forth in International Shoe and its progeny . . ." (Internal citations and brackets omitted). Shaffer v. Heitner, supra, 212.
"The United States Supreme Court has held that the test to be applied in considering the reach of personal jurisdiction is whether (1) the nonresident party has created a substantial connection to the forum state by action purposely directed toward the forum state or otherwise invoking the benefits and protections of the laws of the state, and (2) the exercise of jurisdiction based on those minimum contacts would not offend traditional notions of fair play and substantial justice." (Internal citations omitted.) Cashman v. Cashman, id. "As long as it creates a substantial connection with the forum state, even a single act can support jurisdiction." Cashman v. Cashman, id.
A trial court's determination of whether or not sufficient minimum contacts exist for the invocation of personal jurisdiction depends on the facts of each case. "Like any standard that requires a determination of `reasonableness,' `the minimum contacts' test of International Shoe is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite `affiliating circumstances' are present. Standard Tallow Corp. v. Jowdy, supra. "It is essential in each case that there be some act by which the [nonresident] purposely avails [him]self of the privilege of conducting activities within the forum state . . ." Hansen v. Denckla, 357 U.S. 235, 253 (1958); accord Kulko v. California Superior Court, 436 U.S. 84 (1978).
As noted above, the evidence in the present case established that the defendant had never resided in Connecticut, nor done business here. He was a resident of the state of New Jersey at the time the divorce decree entered, and continues to live there. Although there was evidence that the defendant knew around the time of the divorce in 2007 that the plaintiff was going to marry a Connecticut resident, and relocate with him to this state, there was no evidence that the plaintiff ever discussed those plans with the defendant. The decision to move to Connecticut appears to have been a unilateral one, made solely by the plaintiff. Furthermore, there was no evidence that the proposed relocation was a subject of the parties' divorce settlement negotiations, was directed or importuned in any way by the defendant, or was agreed upon or consented to by the defendant in conjunction with the divorce proceeding.
The plaintiff contends that because the defendant knew about her impending move to Connecticut at the time the parties were divorced in New Jersey, that fact satisfies the minimum contacts test, and is sufficient to invoke personal jurisdiction over the defendant here. The plaintiff argues in a submission filed with this court on January 28, 2009, that ". . . [g]iven his knowledge of the plaintiff's future plans at the time of their divorce, the defendant was aware of the possibility that a Connecticut court could get involved if he failed to fulfill the terms of his Separation Agreement." (Plaintiff's Objection to Defendant's Motion to Dismiss dated January 28, 2009.) In support of her argument that knowledge alone would invoke personal jurisdiction, the plaintiff refers to Footnote 6 of the Kenny v. Banks decision, supra. More specifically, the plaintiff cites the language in that footnote which recounted an allegation that the defendant in Kenny ". . . was well aware of the fact that [she] was anticipating moving to the state of Connecticut at the time of the entry of the decree . . . [and] that [the defendant] knew at the time that this decree was entered that the parties were contemplating [the plaintiff] and the children moving to the state of Connecticut."
This court is not persuaded that the language that is contained in Footnote 6 of the Kenny v. Banks decision controls in the present matter. In Kenny, the footnote states that the parties were contemplating at the time of divorce that the mother and children would move to Connecticut. (Emphasis added). In the case at bar, the evidence established that the plaintiff unilaterally made the decision to relocate to Connecticut, without ever consulting the defendant.
Trial court decisions by other Superior Court judges in Connecticut are instructive about the scope of the "minimum contacts analysis" that has been undertaken in family relations cases where the issue of personal jurisdiction over a nonresident party was raised.
In Monette v. Monette, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA 03-0197842 (November 3, 2005, Tierney, J.) reversed on other grounds, 102 Conn.App. 1 (2007), an action was brought by the wife to enforce the monetary orders of a Canadian divorce decree in Connecticut. The court found in that case that the defendant, a resident of Canada, had sufficient contacts with this state for it to exercise personal jurisdiction over him. The court held that at the time of the divorce judgment, the defendant knew that his wife was a Connecticut resident, had "purchased a house in Greenwich, and had moved to that house with the parties' minor children. Additionally, the court found that the divorce decree included a forum selection clause that permitted a court in the state where the children resided to exercise personal jurisdiction over the defendant on issues pertaining to the children."
In Clemens v. Clemens, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA 99-0172 125 (October 22, 1999, Kavanewsky, J.) [ 25 Conn. L. Rptr. 621] found that the court could not exercise jurisdiction over the defendant. "This court cannot find that the defendant's contacts with Connecticut were of the quantity or quality that gives rise to `specific' jurisdiction. Here, the defendant had only fleeting contacts with Connecticut in 1991 and 1992. Moreover, although the defendant's contacts with Connecticut were slightly more significant in 1998 and 1999, this court does not believe that they can be used as the predicate for specific jurisdiction over the defendant. This is because these later contacts were for apparent purposes of first, family reunification and purchase of a home, which never occurred, and second, for exercising visitation [with his daughter] . . . [I]t [is] noteworthy that the non-resident defendant was in the forum state for [only] . . . visitation purposes." Judge Kavanewsky also noted in his decision that the defendant had never lived in Connecticut, married the plaintiff in Tokyo, had lived in Hong Kong since October 1993, and had not consented when the plaintiff relocated with their child to the United States in August 1998.
The undersigned has carefully considered all of the evidence presented during the hearing, the statutes and case law referred to herein, and the instructive arguments and written memoranda of both counsel. Having done so, this court finds that the only nexus proven to exist between the defendant and the state of Connecticut was that he had knowledge, around the time of the divorce in December 2007, that the plaintiff had unilaterally decided to remarry a Connecticut resident, and relocate with him to this state. The United States Supreme Court has held that "[t]he unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirements of contact with the forum state." Hanson v. Denckla, id. The court finds that the plaintiff has not proven minimum contact sufficient for a finding that the defendant had purposely availed himself of the privileges and benefits of this state, and therefore should reasonably have anticipated being brought into court in Connecticut.
Accordingly, the court finds that it lacks personal jurisdiction over the defendant. For that reason, the defendant's motion to dismiss the plaintiff's motion for contempt is hereby GRANTED.
SO ORDERED.