Monette v. Monette, No. FST FA 03 0197842 S (CT 11/3/2005)

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Unpublished Opinion

Carole Ann Monette v. Claude Monette Opinion No.: 90848

No. FST FA 03 0197842 S

Superior Court of Connecticut

Judicial District of Stamford-Norwalk at Stamford

November 3, 2005

MEMORANDUM OF DECISION ON MOTION TO DISMISS (#120.00)

KEVIN TIERNEY, JUDGE.

The defendant, Claude Monette, a Canadian resident, filed a Motion to Dismiss claiming lack of in personam jurisdiction thus preventing the plaintiff, Carole Ann Monette, from proceeding to enforce marital monetary orders in Connecticut.

"When 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." Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 53 (1983). "If the defendant challenges the court's jurisdiction, it is then incumbent on the plaintiff to prove the facts establishing the requisite minimum contacts." Standard Tallow Corporation v. Jowdy, supra, 190 Conn. 53. The defendant filed his appearance by counsel of record on July 16, 2004 and filed this Motion to Dismiss (#120.00) within 30 days thereof on July 19, 2004. The defendant filed two Memoranda in Support of Motion to Dismiss; August 19, 2004 and September 10, 2004. The Motion to Dismiss is timely and procedurally correct. This court conducted an evidentiary hearing over a number of days on the issue of in personam jurisdiction.

LAW

In cases involving in personam jurisdiction, the court must conduct a two-prong inquiry. The first inquiry is: Has the Connecticut Long Arm Statute been complied with? The second inquiry is: Does Connecticut's exercise of personal jurisdiction over the defendant comport with the well established principles of due process? Panganiban v. Panganiban, 54 Conn.App. 634, 638, cert. denied, 251 Conn. 920 (1999).

The Connecticut Long Arm Statute for family matters states: "The court may exercise personal jurisdiction over the nonresident party as to all matters concerning temporary or permanent alimony or support of children, only if; (1) The nonresident party has received actual notice under subsection (a) of this section; and (2) the party requesting alimony meets the residency requirements of section 46b-44." General Statutes §46b-46(b). General Statutes §46b-44, the residency requirement statute, contains alternative methods of establishing residence in Connecticut. The first method is: "One of the parties to the marriage has been a resident of this state for at least twelve months next preceding the date of filing of the complaint or next preceding the date of the decree." General Statutes §46b-44(c)(1).

The court finds that the plaintiff, Carole Ann Monette, purchased a single family home in Greenwich, Connecticut in the spring of 2003 and is currently residing in Greenwich in the home that she purchased. She has been a resident consistently since August 2003. The court finds that the plaintiff has met the residency requirements of §46b-44(c)(1). The defendant received actual notice of these Connecticut proceedings. The plaintiff has satisfied §46b-46(b). The defendant concedes that fact in page 2 of his August 19, 2004 and his September 10, 2004 Memoranda in Support of Motion to Dismiss; "In this case regarding the instant PJR, the defendant does not dispute that the requirements of C.G.S. §46b-46 have been satisfied."

This court now turns to the second prong of the two-prong inquiry. Does the exercise of personal jurisdiction by Connecticut over the defendant comport with the well established principles of due process?

"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, supra, 54 Conn.App. 638; citing Shaffer v. Heitner, 433 U.S. 186, 198-200 (1977).

All assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe [Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)] and its progeny." Shaffer v. Heitner, 433 U.S. 186, 212, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977); see Hodge v. Hodge, 178 Conn. 308, 318, 422 A.2d 280 (1979). Those standards, as set out in International Shoe, require that "in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he 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.) International Shoe Co. v. Washington, supra, 316.

Standard Tallow v. Jowdy, supra, 190 Conn. 51-52.

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 purposefully 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. Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 111-12, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987); Burger King Corp. v. Rudzewicz, supra, 475-76; Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). As long as it creates a substantial connection with the forum state, even a single act can support jurisdiction. McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Cashman v. Cashman, 41 Conn.App. 382, 389, 676 A.2d 427 (1996)." Tri-State Tank Corp. v. Higganum Heating, Inc., 45 Conn.App. 798, 802-03, 699 A.2d 201 (1997).

The due process test for personal jurisdiction has two related components: the 'minimum contacts' inquiry and the 'reasonableness' inquiry. The court must first determine whether the defendant has sufficient contacts with the forum state to justify the court's exercise of personal jurisdiction . . . For purposes of this initial inquiry, a distinction is made between 'specific' jurisdiction and 'general' jurisdiction. Specific jurisdiction exists when a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant's contacts with the forum; a court's general jurisdiction, on the other hand, is based on the defendant's general business contacts with the forum state and permits a court to exercise its power in a case where the subject matter of the suit is unrelated to those contacts . . . The second stage of the due process inquiry asks whether the assertion of personal jurisdiction comports with traditional notions of fair play and substantial justice—that is, whether it is reasonable under the circumstances of the particular case . . . The Supreme Court has held that the court must evaluate the following factors as part of this reasonableness analysis: (1) the burden that the exercise of jurisdiction will impose on the defendant; (2) the interests of the forum state in adjudicating the case; (3) the plaintiff's interest in obtaining convenient and effective relief; (4) the interstate judicial system's interest in obtaining the most efficient resolution of the controversy and (5) the shared interest of the states in furthering substantive social policies." (Citations omitted; internal quotation marks omitted.) Metropolitan Life Ins. v. Robertson-CECO Corp., 84 F.3d 560, 567-68 (2d Cir.), cert. denied, 519 U.S. 1006, 117 S.Ct. 508, 136 L.Ed.2d 398 (1996); see also Chew v. Dietrich, 143 F.3d 24 (2d Cir. 1998).

Panganiban v. Panganiban, supra, 54 Conn.App. 639-40; Thomason v. Chemical Bank, 234 Conn. 281, 287-90 (1995).

The defendant argues that defendant only had contact with the State of Connecticut many years ago when he was employed in Connecticut and this instant claim for dissolution does not arise out of or is related to his employment contacts with Connecticut. The defendant claims that the issue before the court is not an issue of specific jurisdiction but that of general jurisdiction over the defendant.

FACTS

After considering the law, the testimony and the exhibits offered, the court makes the following findings of facts and legal conclusions:

The parties were married in Gloucester, Massachusetts on December 11, 1993. They have two minor children issue of the marriage, now ages 6 and 8. The two minor children live with the plaintiff in Greenwich, Connecticut. The defendant lives in the City of Montreal, province of Quebec, Canada.

The parties were residents of the town of Rosemere in the province of Quebec, Canada throughout the Canadian divorce proceedings. The court takes judicial notice that Rosemere is a suburb of Montreal, 390 miles north of Stamford, Connecticut directly accessible by interstate highways. A divorce action was commenced by the plaintiff in Canada in September 2002. They were divorced on August 19, 2003 in the province of Quebec, Canada and the effective date of the divorce according to Canadian law was September 19, 2003. In the spring of 2003 the plaintiff purchased a house in Greenwich, Connecticut and moved to that house with the minor children issue of the marriage in August 2003. The parties were represented by separate counsel throughout the entire Canadian divorce process.

A written "Consent to Judgment" was signed by the parties on August 19, 2003. The Consent to Judgment is the equivalent of a separation agreement.

On November 6, 2003 the plaintiff domesticated this Canadian divorce judgment; Superior Court, Family Division, province of Quebec, District of Montreal, Country of Canada, Case No. 500-12-270143-039. This Canadian judgment became a judgment of the State of Connecticut on November 6, 2003. Litvaitis v. Litvaitis, 162 Conn. 540, 544-45 (1972). Until November 6,...