Opinion
FSTFA176031011S
09-27-2018
Christopher WHITE v. Tricia PORTUONDO
UNPUBLISHED OPINION
SOMMER, J.
I. INTRODUCTION
The underlying motion in this case is the defendant’s motion to relocate with the parties’ minor child. (# 150.00) dated April 10, 2018. By way of background, the parties, who were never married, have one minor child Connor, born December 11, 2016. At the hearing on plaintiff’s custody application, September 12-13, 2017, the defendant mother requested permission to relocate with the child to Windsor, Connecticut. The defendant stated as reasons for her request, the cost of living in Windsor was more affordable compared to Fairfield County, she has additional family support in the area and she was unemployed but had received a job offer in the Hartford area. On September 25, 2017 the court issued a Memorandum of Decision in which it ordered joint legal custody, implemented a parenting plan, and denied the defendant’s request to relocate.
On October 13, 2017 the defendant filed an appeal with the Appellate Court (Docket Number AC 40949). Among the five issues which the defendant raised on appeal is "Did the trial court err in not allowing the defendant-appellant to relocate?" The appeal remains pending. Appellate briefs are scheduled to be filed in late October. In the meantime, the defendant filed the subject motion to order for permission to relocate with the minor child with the court. The defendant basically states the same reasons that relocation would be in the child’s best interests, adding the claim that the schools in Farmington where she wants to relocate are superior to the public schools in Norwalk. The basis of the plaintiff’s motion to dismiss is that the defendant is seeking to relitigate the same issue of relocation which was decided by Judge Colin. After reciting facts which he states establish that there has been no change in the parties’ circumstances, the defendant objects to the court proceeding on the plaintiff’s motion citing res judicata as a basis for his motion to dismiss.
II. APPLICABLE LAW AND ANALYSIS
(1) Motion to Dismiss
The motion to dismiss is used primarily to challenge the jurisdiction of the court. Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213 (2009). Practice Book § 25-13(a) list four grounds for dismissal. These are lack of jurisdiction over the subject matter, lack of jurisdiction over the person, insufficiency of process, and insufficiency of service of process. Practice Book § 25-13 states the same bases for motions to dismiss as set forth in Practice Book § 10-30 relating generally to civil matters. Sections 25-14, and § § 10-30-34 both provide contain the procedural requirement that a motion to dismiss be filed within 30 days of an appearance. The purpose of this requirement is to assure that threshold jurisdictional claims are made as early as possible. The language of § 25-12 is instructive.
Section 25-12 Motion to Dismiss states (a) any defendant, wishing to assert grounds to dismiss the action under Section 25-12(a)(2), (3) or (4) must do so within 30 days of the filing of an appearance.
Thus, by its clear language, section 25-12, provides a vehicle for a defendant to seek judicial dismissal of an action for the stated grounds early in the case. The court notes that in this matter, it is the plaintiff who is claiming the jurisdictional defect as the reason for his objection to the defendant’s motion to relocate. In this case the court has previously found and exercised personal jurisdiction over the parties and subject matter jurisdiction over the custody of the parties’ child and issues related to his custody. Judge Colin’s orders establish that this court has subject matter jurisdiction.
Based on the above analysis of the applicable Practice Book sections, the court concludes that the motion to dismiss is not a procedurally proper vehicle for the plaintiff to oppose the defendant’s April 2018, motion for permission to relocate.
(2) Res Judicata and Collateral Estoppel as Grounds for Dismissal
The second ground which the plaintiff presents in support of dismissal of the defendant’s motion to relocate is res judicata. The Connecticut Supreme Court has also held that res judicata and the corresponding doctrine of collateral estoppel cannot be used to seek summary dismissal.
"Res judicata does not provide the basis for a judgment of dismissal; it is a special defense that is considered after any jurisdictional thresholds are passed." Labbe v. Pension Commission, 229 Conn. 801, 816 (1994). "Because res judicata or collateral estoppel, if raised, may be dispositive of a claim, summary judgment [is] the appropriate method for resolving a claim of res judicata." Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712 (1993); see also Tuchman v. State, 89 Conn.App. 745, 762-63 n.7, cert denied, 275 Conn. 290 (2005) (collateral estoppel not properly raised by a motion to dismiss).
The plaintiff claims that there has not been a substantial change in circumstances since the entry of the September 2017 order. That argument should be adjudicated on its merits and not disposed of summarily. In such circumstances, the court is bound to follow well established principles for modifying custody orders where the moving party is required to establish a substantial change in circumstances. The very nature of matters relating to child custody which require the court to make best interest findings and consider the evolving needs of children as they develop and circumstances change is such that the same parties may well litigate child-related issues on multiple occasions.
It is well-settled that Connecticut General Statutes § 46b-56, 46b-56a and 46b-56c by their very language inherently recognize that orders issued thereunder are subject to change, i.e., modification. The nature of child custody requires an exception to the general rule against relitigating issues previously decided by the court. For example, the specific language of the statute, granting a family court "... continuing power to open a judgment after the expiration of the term in which it was rendered." Raymond v. Raymond, 165 Conn. 735, 737 (1974). "This statute creates an exception to the general rule that a court has no power to open a judgment after the expiration of the term in which it was rendered. To limit the use of the power given to the trial courts by 46-23 and to give effect to the principle of res judicata, there has developed a rule, which is accepted by this court, that before an order as to custody or support of children may be modified there must have been a material change in circumstances after the order was issued." Cleveland v. Cleveland, 161 Conn. 452, 460 (1971). "We recognize the temptation to end the inquiry when a custodial parent intends to relocate without a legitimate purpose. That procedural stumbling block, however, would thwart the overarching statutory mandate of the best interest of the child.
"Relocation cases ... present some of the most complicated problems that courts are called upon to resolve." (Citations omitted). Bretherton v. Bretherton, 72 Conn.App. 528, 536 (2002). After analyzing the Supreme Court’s decision in Ireland v. Ireland, 246 Conn. 413, 716 A.2d 676 (1998), the Bretherton court concluded, "Relocation cases cannot be decided in a vacuum. To maintain a child focused analysis in relocation issues; see Ireland v. Ireland, supra, 246 Conn. 420-21; the failure of a custodial parent to meet his or her initial burden cannot have a preclusive effect." Bretherton v. Bretherton, supra, 72 Conn.App. 528, 545.
III. CONCLUSION
Based on a review of the record, analysis of the applicable statutes and Practice Book sections and careful consideration of the arguments of the parties, the court concludes:
1. The Motion to Dismiss does not comply with Connecticut Practice Book Section 25-13, as it does not allege any grounds for which a motion to dismiss may be granted.
2. The motion does not comply with Connecticut Practice Book Section 25-12 which requires the defendant to file such motion within 30 days of appearing in the case.
3. The doctrine of res judicata is not a recognized basis for a motion to dismiss. Res judicata is a special defense and not a valid ground to dismiss an action.
4. The doctrine of res judicata is generally inapplicable to relocation cases.
The Motion to Dismiss is denied.