Jungnelius v. Jungnelius

133 Conn.App. 250

35 A.3d 359

Annette JUNGNELIUS

v.Jarl JUNGNELIUS.

No. 32506.

Appellate Court of Connecticut.

Argued Sept. 9, 2011.Decided Jan. 31, 2012.

Bruce A. Chamberlain, New London, for the appellant (defendant).

Eric W. Callahan, New London, for the appellee (plaintiff).

GRUENDEL, ROBINSON and SULLIVAN, Js.

SULLIVAN, J.

The defendant, Jarl Jungnelius, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Annette Jungnelius, and awarding her alimony. On appeal, the defendant claims that the court (1) improperly determined that it had subject matter jurisdiction and (2) abused its discretion with respect to the alimony award. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our review of the plaintiff's appeal. The plaintiff initiated the this action for dissolution of marriage with a complaint that was served on the defendant on February 13, 2009. In May, 2009, the defendant asked the plaintiff to withdraw the dissolution action and to go to counseling in an attempt to reconcile. On May 19, 2009, the plaintiff withdrew the action. The plaintiff and the defendant took a family vacation to California from July 30 through August 8, 2009. Prior to leaving for this vacation, however, the defendant filed a dissolution action in Sweden but did not immediately inform the plaintiff. The plaintiff did not learn of the existence of the Swedish dissolution action until August 28, 2009, when she was served with the papers. On August 31, 2009, the plaintiff filed a motion to restore the Connecticut case to the docket. On September 28, 2009, the defendant filed a motion to dismiss the plaintiff's action pursuant to Practice Book § 25–12, General Statutes § 46b–115 et seq., and the common-law doctrine of forum non conveniens. On October 30, 2009, the court, Boland, J., granted the plaintiff's motion to restore and denied the defendant's motion to dismiss. A limited contested trial was held before the court on April 22 and 23, 2010.

On May 21, 2010, the court, Shluger, J., issued its memorandum of decision, setting forth the following findings of fact.¹ The plaintiff and defendant married on September 27,1987, in Stockholm, Sweden, and have three children including one minor child, Gustaf Jungnelius. One of the parties had resided continuously in Connecticut for at least one year prior to the commencement of the dissolution action. The defendant had been employed as a research physician and a vice president with Celgene, which is headquartered in New Jersey, but he had worked in Switzerland. The family moved to Connecticut in 2002 and lived there until 2009, at which time the dissolution action was commenced. The court found that the plaintiff testified credibly that her intention was to continue to reside in Connecticut with Gustaf beginning in the summer of 2010. The plaintiff, a licensed nurse in Sweden, is not certified to work in the United States. She primarily had been responsible for raising the three children and was a capable and valued homemaker, which allowed the defendant to excel and to prosper in his career. The cause of the dissolution was mutual. The parties separated in the fall of 2008 with the defendant vacating the marital residence and working in Switzerland. The plaintiff's parenting plan was to remain in Connecticut with Gustaf but in a smaller home. She sought joint physical custody of Gustaf with primary residence with her and a reasonable and liberal visitation for the defendant. The defendant's parenting plan also asked for joint physical custody but that Gustaf reside in Sweden with extended family. The court found the plaintiff's parenting plan to be in the best interest of the child. The court found that the plaintiff will have an earning capacity, after two years of schooling, working as a nurse in the United States. Both parties agreed that the marital home should be sold. Additional facts will be provided, as necessary.

I

On appeal, the defendant first claims that the trial court lacked subject matter jurisdiction over the dissolution action. The defendant argues that the plaintiff had moved to Sweden and was not living in Connecticut in August, 2009, when she filed the motion to restore the case to the regular docket after the withdrawal in February, 2009, and that she was not living in the state in April, 2010, until the date of the trial. Therefore, he argues that the plaintiff does not meet the residency requirement under General Statutes § 46b–44. The plaintiff responds that she and Gustaf temporarily had gone to Sweden on August 11, 2009, for one academic year in order to allow him to become proficient in Swedish.

“The applicable standard of review is well established. A determination regarding a trial court's subject matter jurisdiction is a question of law. When ... the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.... Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it.... If a court lacks subject matter jurisdiction to hear and determine cases of the general class to which the proceedings in question belong, it is axiomatic that a court also lacks the authority to enter orders pursuant to such proceedings.... We must determine whether the court had subject matter jurisdiction to entertain the plaintiff's complaint. We are mindful that [a] court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it.... [W]here a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged.” (Citations omitted; internal quotation marks omitted.) Temlock v. Temlock, 95 Conn.App. 505, 518–19, 898 A.2d 209, cert. denied, 279 Conn. 910, 902 A.2d 1070 (2006).

The defendant argues that (1) the plaintiff did not meet the residency requirement to file a complaint for dissolution of marriage and (2) the court lacked subject matter jurisdiction to enter the decree dissolving the marriage. Because the defendant's claims have different requirements, we will examine them separately.

AResidency Requirement to File the Complaint

First, the defendant argues that the plaintiff did not meet the residency requirement to file the complaint for dissolution of marriage. “A complaint for dissolution of a marriage ... may be filed at any time after either party has established residence in this state.” General Statutes § 46b–44 (a). Our Supreme Court has interpreted this section liberally. “For the purposes of filing a complaint for dissolution of marriage or for the granting of alimony or support pendente lite, residence of one party, without a showing of domicil, is sufficient to give the court subject-matter jurisdiction under [General Statutes] § 46–35.” ² LaBow v. LaBow, 171 Conn. 433, 439, 370 A.2d 990 (1976). This court has determined that a party meets the requirements of § 46b–44 (a) if the complaint is filed while he or she is a resident of Connecticut. See Carchrae v. Carchrae, 10 Conn.App. 566, 569, 524 A.2d 672 (1987).

Here, the court found that at the time the dissolution was commenced, both parties were living in Connecticut. The complaint in this case was filed in the judicial district of New London on February 20, 2009. At that point, the plaintiff had been living continuously in Connecticut since 2002. The plaintiff did not leave for Sweden until August 11, 2009. Therefore, we conclude that the plaintiff met the residency requirement under § 46b–44 (a) to file a complaint for dissolution of marriage.

BResidency Requirement to Establish Subject Matter Jurisdiction

The defendant also claims that the court lacked subject matter jurisdiction to enter its decree dissolving the marriage. He argues that because the plaintiff was not living in Connecticut at the time that she filed the motion to restore the case to the regular docket and was not living in the state at the time of the trial in April, 2010, she does not meet the residency requirements under § 46b–44. The plaintiff responds by arguing that she met the requirements of § 46b–44 (c)(1), and, therefore, the court had subject matter jurisdiction over the entire proceeding.³

Section 46b–44 (c) provides in relevant part: “A decree dissolving a marriage ... may be entered if: (1) One of the parties to the marriage has been a resident of this state for at least the twelve months next preceding the date of the filing of the complaint or the next preceding the date of the decree....” In interpreting § 46–35, the predecessor to § 46b–44, our Supreme Court noted: “In the prior statute ... residence was construed to require domicil plus substantially continuous physical residence in this state.... This accords with the pronouncement of the United States Supreme Court in Williams v. North Carolina, 325 U.S. 226, 229, 65 S.Ct. 1092, 89 L.Ed. 1577 [1945], that [u]nder our system of law, judicial power to grant a divorce—jurisdiction, strictly speaking—is founded on domicil.... Domicil implies a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance. For those reasons, the present statute must require, for a dissolution decree founded on the first or second of the enumerated bases, domicil plus substantially continuous residence in Connecticut by one of the parties for the twelve months next prior to either the filing of the complaint or the granting of the decree.” (Citations omitted; internal quotation marks omitted.) LaBow v. LaBow, supra, 171 Conn. at 437, 370 A.2d 990.

The enumerated bases to which the LaBow court referred correspond to § 46b–44 (c)(1).⁴ This court previously has held that § 46b–44 (c) requires...