Opinion
No. FA03-0127100
June 10, 2003
MEMORANDUM
The non-resident defendant filed a motion to dismiss the above pending dissolution action, asserting that neither the plaintiff nor the defendant has met the residency requirement of Connecticut General Statues § 46b-44 and that there is now pending an action for dissolution of the parties in the Providence County Family Court. Plaintiff has. objected, claiming the matter is properly before the court. For the reasons set forth in detail below, the court denies the motion to dismiss.
A. Facts
The parties to this case were married in Norfolk, Virginia in February 1995. Some years later they established a home in Rhode Island, where the plaintiff, defendant and the minor child resided until September 2002. At that time, the plaintiff physically separated from her husband, secured employment in Connecticut and moved to her present home in Colchester, Connecticut where she has resided ever since. She intends to continue to reside in the state. The parties share time with their minor child in each home. The defendant continues to reside in Rhode Island. At approximately the same time that the plaintiff served this action for dissolution of her marriage on the husband, he commenced an action for dissolution in Rhode Island.
B. Law
A motion to dismiss is the proper method of raising the want of personal or subject matter jurisdiction in a family matter. LaBow v. LaBow, 171 Conn. 433, 436-37 (1976). Jurisdiction is the power of a court to hear and determine the cause of action presented to it. Zizka v. Water Pollution Control Authority, 195 Conn. 682 (1985). While every presumption is to be indulged in favor of jurisdiction, Rummel v. Rummel, 33 Conn. App. 410, 415 (1993), the court derives its authority to dissolve marriages from statutes, which must be strictly construed. CT Page 8176-b "Section 46b-44 establishes a residency requirement, satisfaction of which is essential to confer on the court subject matter jurisdiction over a dissolution action." Charles v. Charles, 243 Conn. 255, 257 (1997). It is the fact of residence coupled with the intent to remain in Connecticut, which is the foundation for jurisdiction. Cugini v. Cugini, 13 Conn. App. 632, 636 (1988).
C. Discussion
The defendant argues that because the plaintiff has not yet resided in Connecticut for twelve months, the case should be dismissed. Although a complaint for dissolution of marriage may be brought at any time after residence is established, jurisdiction to grant a dissolution of marriage which is based upon domicile is determined only at the time of the final hearing. Cugini v. Cugini, 13 Conn. App. 632, 635 (1988). Carchrae v. Carchrae, 10 Conn. App. 566, 569 (1987). Since the pending dissolution action has a return date of April 15, 2003 and the plaintiff established her residence in Connecticut in September 2002, twelve months has not yet passed.
The fact that the court has jurisdiction to dissolve the marriage, however, does not necessarily mean that it has jurisdiction to entertain or make orders for alimony, child support, custody, or property. The court cannot exercise personal jurisdiction over a non-resident party concerning temporary or permanent alimony and child support unless that party has received actual notice of the complaint and the party requesting alimony meets the residency requirements of § 46b-44 of the General Statutes. In this action the plaintiff seeks orders of child support, orders that she could receive on a pendente lite basis pursuant to § 46b-44 (a) and which she could receive on a permanent basis after September 2002 as the defendant has received actual notice of the pendency of this action.
On the basis of the facts presented to it, the court finds that the grounds claimed for motion to dismiss have not been proven. The plaintiff has established her domicile in this state and therefore this state has jurisdiction to entertain this matter. For all of the foregoing reasons, the motion to dismiss is denied.
QUINN, J. CT Page 8176-c