Lima-St. Denis v. St. Denis

Daelte Lima-St. Denis v. Thomas J. St. Denis

No. FA166027376S

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

June 13, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTION TO DISMISS

Michael E. Shay, Judge

The parties to the above-entitled action were married in Lenox Massachusetts, on October 20, 2004. They are the parents of two children, to wit: Lucceza, age 12, and Thomas, age 11. A previous action was filed by the plaintiff in the Judicial District of Fairfield at Bridgeport (FBT #FA14-4048088S) which was dismissed by the court for want of subject matter jurisdiction, neither party satisfying the residency requirement of General Statutes § 46b-44(a). The plaintiff has since filed the present action in this Judicial District by writ, summons, and complaint dated December 9 2015, and returnable January 19, 2016.

The defendant has moved to dismiss the pending matrimonial action by motion dated February 15, 2016 (#102.00) on the grounds that the court lacks jurisdiction, due in part to a prior pending action in Brazil in which both parties have appeared and participated; orders having entered therein regarding custody and support; and the fact that the parties and minor children are residents of Brazil; as well as the bad faith of the plaintiff for making false and misleading statements to the court. However, of more significance, since the filing of the motion to dismiss, the marriage was dissolved on May 16, 2016, by a decree of competent jurisdiction in Brazil, and registered as a final decree on July 6, 2016. (Exhibit #3.)

The defendant has registered a true copy of same with this court. (FST #FA17-4030378S) which the court has adopted as Exhibit #1. The plaintiff opposes the motion to dismiss, arguing that the decision in Brazil dissolving the marriage was not final.

The court heard argument on April 21, 2017, at which time it allowed the plaintiff three weeks to present countervailing evidence in the form of an official document under seal, and a verifiable translation thereof, and an additional four weeks thereafter for the defendant to produce any additional official documents in reply. The plaintiff did so on May 11, 2017, which the court has adopted as Exhibit #2, and on June 9, the defendant a filed Third Supplemental Affidavit of Thomas J. St. Denis in Support of Motion to Dismiss dated June 5, 2017, which the court has adopted as Exhibit #3. The court advised counsel and the plaintiff, who was present in court, that it would review the memoranda of law, affidavits, exhibits, and other pleadings in order to determine whether or not a valid marriage of the parties currently exists or was previously dissolved by decree of court in Brazil. Upon information and belief, the plaintiff has filed various lis pendens in connection herewith.

FINDINGS

The court having considered the evidence and the arguments of counsel, hereby finds as follows.

1. That General Statutes § 46b-1 provides the Superior Court with plenary and general subject matter jurisdiction over legal disputes in " family relations matters, " as defined therein. Amodio v. Amodio, 247 Conn. 724 729, 724 A.2d 1084 (1999).

2. That " a motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." Connecticut Practice Book § 10-30(a); that a motion to dismiss and any motion in opposition thereto shall be accompanied by a memorandum of law and supporting affidavits. Connecticut Practice Book § 10-30(c) and § 10-31(a). Subject matter jurisdiction can neither be waived nor conferred upon the court by the parties and can be raised at any time during the pendency of the case, even sua sponte by the court. Practice Book § 10-33; State v. Commins, 276 Conn. 503, 512, 886 A.2d 824 (2005).

3. That " a possible absence of subject matter jurisdiction must be addressed and decided whenever the issue is raised." Soracco v. Williams Scotsman, Inc., 292 Conn. 86, 92, 971 A.2d 1 (2009); and that when a question of jurisdiction arises, the court should address the matter prior to deciding other aspects of the case. State v. Malkowski, 189 Conn. 101, 104, 454 A.2d 275 (1983).

4. That an action for dissolution of marriage is an action " in rem over the marital status of the parties" and not in personam. Fernandez v. Fernandez, 208 Conn. 329, 334, 545 A.2d 1036 (1988); and that where a marriage has been previously dissolved, the action must be dismissed, " as there can be no divorce where there is no existing marital relation." Gildersleeve v. Gildersleeve, 88 Conn. 689, 690, 92 A. 684 (1914).

5. That on April 10, 2017, the defendant herein filed with this court a certified copy of divorce proceedings (Exhibit #1) from Brazil (with translation attached) by and between the parties herein, and that while this does not fall within the statutory ambit of General Statutes § § 46b-70 and 46b-71, it does implicate the issue of comity. Monette v Monette, 102 Conn.App. 1, 3, 924 A.2d 894, n2 (2007); that " comity is a flexible doctrine, the application of which rests in the discretion of the state where enforcement of a foreign order is sought; that because comity is a flexible doctrine, its contents are peculiarly subject to the dictates of public policy and consideration of fairness to litigants." Hao Thi Popp v. Richard Lucas, 182 Conn. 545, 550, 438 A.2d 755 (1980); and that where...