Opinion
FA184087052S
09-17-2018
Michael MCGRANE v. Kimberly MCGRANE
UNPUBLISHED OPINION
Nguyen-O’Dowd, J.
FACTS
The parties were married on October 27, 2007. They have two children. Carly and Ella were born on June 27, 2009 and July 26, 2011, respectively. The defendant filed a petition for dissolution of marriage on March 22, 2016 in Arizona. The parties signed a consent decree as a full agreement to dissolve their marriage and entered orders related to custody and child support for their children. On July 11, 2016, the Arizona court, Cohen, J., dissolved their marriage based on the parties’ consent decree. The plaintiff agreed and was ordered to pay child support to the defendant in the amount of $654.58 per month based on the Arizona child support worksheet.
Thereafter, the parties and the children moved to Texas. The plaintiff filed a request for modification in Texas. Both parties appeared in person and with counsel before the Texas court. On February 28, 2018, the Arizona judgment was modified by the Texas court based upon the agreement of the parties as outlined in the mediated settlement agreement. The agreement modified the Arizona judgment and applied Texas law to the modification. As part of the agreement, the plaintiff was ordered to pay $1,710 a month to the defendant for child support.
Sometime after the modification in Texas, the defendant relocated to Connecticut. The plaintiff also relocated to Massachusetts. On April 23, 2018, the plaintiff filed a certified copy of the foreign judgment- Arizona consent decree and Texas mediated settlement agreement- in Connecticut pursuant to General Statutes § 46b-71. On May 16, 2018, the plaintiff filed a motion to modify child support alleging a substantial change in circumstances (# 108). The defendant also filed a motion for modification on August 10, 2018 (# 119). The defendant argues that the substantive law that should apply is Texas; the plaintiff argues that Arizona law should apply to the modification.
On July 11, 2018, the court ordered the parties to file briefs on the issue of which state’s substantive law should apply to the motion for modification.
II
DISCUSSION
The issue presented is what state’s substantive law- Arizona or Texas- should apply to the motion for modification of child support. Additionally, if the motion is granted, which state’s child support guidelines should apply in determining the support amount.
General Statutes § 46b-71 provides: "(a) Any party to an action in which a foreign matrimonial judgment has been rendered, shall file, with a certified copy of the foreign matrimonial judgment, in the court in this state in which enforcement of such judgment is sought, a certification that such judgment is final, has not been modified, altered, amended, set aside or vacated and that the enforcement of such judgment has not been stayed or suspended, and such certificate shall set forth the full name and last-known address of the other party to such judgment and the name and address of the court in the foreign state which rendered such judgment. (b) Such foreign matrimonial judgment shall become a judgment of the court of this state where it is filed and shall be enforced and otherwise treated in the same manner as a judgment of a court in this state; provided such foreign matrimonial judgment does not contravene the public policy of the state of Connecticut. A foreign matrimonial judgment so filed shall have the same effect and may be enforced or satisfied in the same manner as any like judgment of a court of this state and is subject to the same procedures for modifying, altering, amending, vacating, setting aside, staying or suspending said judgment as a judgment of a court of this state; provided, in modifying, altering, amending, setting aside, vacating, staying or suspending any such foreign matrimonial judgment in this state the substantive law of the foreign jurisdiction shall be controlling ." (Emphasis added.) General Statutes § 46b-71.
There is no disagreement between the parties that the plaintiff complied with the requirements in § 46b-71 regarding filing certified copies of the foreign judgment from both the Arizona and Texas courts. There is also no claim that the foreign judgment contravenes the public policy of the State of Connecticut. As such, this court has subject matter jurisdiction over the motion for modification filed by the parties.
When modifying a foreign judgment, § 46b-71 is clear that a court is required to apply the substantive law of the foreign judgment. "Where a statute dictates that the substantive law of a foreign jurisdiction is controlling and a trial court fails to apply such law, this comprises an extraordinary situation in which the error is so obvious as to affect the fairness and integrity of the judicial proceeding. Moreover, the parties cannot agree that Connecticut law shall apply in direct contravention of the legislative intent that the substantive law of a foreign jurisdiction controls in modifying a foreign matrimonial judgment." Colby v. Colby, 33 Conn.App. 417, 421-22, 635 A.2d 1241 (1994). See also, Corso v. Johnson, Superior Court, judicial district of Fairfield, Docket No. FST-FA-10-40199222-S (June 27, 2014, Heller, J.) ("Pursuant to General Statutes § 46b-71, the court must apply the substantive law of the foreign jurisdiction- in this case, Florida- when modifying a foreign matrimonial judgment").
In Vitale v. Krieger, 47 Conn.App. 146, 702 A.2d 148 (1997), the parties’ marriage was dissolved in Texas with subsequent modifications both in Texas and Maryland. The parties then filed motions for modification in Connecticut. The Appellate Court reversed the trial court’s decision. "The Superior Court, in deciding the motions before it, applied the substantive law of Connecticut rather than that of the foreign jurisdiction, Texas. Clearly, when modifying a foreign matrimonial judgment, the courts of this state must apply the substantive law of the foreign jurisdiction, and failure to do so constitutes plain error." Id., 148-49.
The plaintiff relies principally on the Vitale case for his position that the substantive law that should apply to the motion for modification is Arizona. The Vitale case, similar to the instant case, had an intervening modification from the original dissolution agreement. However, it is unclear from the Vitale decision what substantive law was applied by the Maryland court when it modified the judgment, i.e., Maryland or Texas. The plaintiff wishes this court to assume that the Maryland court must have applied the Texas law. There is nothing in this court’s reading of Vitale to reach this conclusion. Moreover, unlike in Vitale, the Arizona consent decree and the subsequent modification in Texas are available for this court to review.
The Arizona dissolution decree included a section entitled "Governing Law." That section read: "This Agreement shall be construed and enforced in accordance with the laws of the State of Arizona. Both parties, however, anticipate relocating to Texas. Upon Mother and the children’s relocation to Texas and the Father’s relocation away from Arizona, Arizona shall no longer have jurisdiction pursuant to the UCCJEA and Texas shall assume such jurisdiction. Both parties agree that upon Mother’s relocation with the children to Texas, in the event any future legal action is initiated by either parent over any issues involving parenting, both parents agree that the county where the mother resides shall be the proper venue and the laws of Texas shall govern such action unless otherwise mutually agreed upon by the parents." (Arizona Dissolution Decree ¶ 16.) On February 28, 2018, the Arizona orders related to child support and parenting time were modified in Texas. Although the Arizona consent decree did not specify that child support would be modified according to Texas law, the parties agreed in the same February 28, 2018 mediated settlement before the Texas court to modify child support based on the substantive law of Texas.
The parties’ agreement to modify the Arizona consent decree in Texas was detailed in the court’s order spanning fifty-one pages. The mediated settlement agreement read in relevant part: "The Court, after examining the record and the evidence and argument of counsel, finds that it has jurisdiction of this case and of all the parties and that no other court has continuing, exclusive jurisdiction of this case." The court also stated: "The court finds that the parties have reached an agreement regarding the current requested modification. IT IS ORDERED that the requested modification is GRANTED based on the agreement of the parties as reached in the mediated settlement agreement." (Texas Order, p. 2.) The parties were given joint legal custody of the children with the defendant designated as the primary residential custodian. A modified child support order was calculated for the plaintiff based on Texas child support guidelines.
It is clear that the Texas order modified the Arizona dissolution decree regarding both child support and parenting time. The modification was agreed upon by the parties. The Texas court modified the child support order and applied the Texas child support guidelines. In the present case, it would be illogical to conclude that the substantive law of Arizona controls any future modification of child support. The substantive law of Arizona was not used for the Texas modification because the Arizona consent decree included a provision wherein Arizona relinquished jurisdiction to Texas based on the parties’ intention to relocate to Texas. The Arizona consent decree further provided for the application of Texas law to any future modification when the parties moved to Texas.
The Texas court orders, on the other hand, made no such provision and only provided the parties with the option of choosing where the children would reside with the defendant, among several possible choices, including Connecticut. Specifically, the Texas order provided: "It is ordered that Kimberly McGrane, a parent joint managing conservator, shall have the following rights and duty: 1. the exclusive right to designate the primary residence of the children within Collin County and counties contiguous to Collin County (until August 1, 2017), Connecticut, New York City and Long Island, Rhode Island and Massachusetts." (Texas Order, p. 7.) This order is repeated in a paragraph entitled "Residency Restriction" that further provides "IT IS ORDERED that the primary residence of the children shall be in Collin County and counties contiguous to Collin County (until August 1, 2017), Connecticut, New York City and Long Island, Rhode Island and Massachusetts, and the parties shall not remove the children from Collin County and counties contiguous to Collin county, Connecticut, New York City and Long Island, Rhode Island and Massachusetts for purposes of changing the primary residence of the children until modified by further order of the court of continuing jurisdiction or by written agreement signed by the parties and filed with the court." (Texas Order, p. 9.) In neither of these provisions is there an agreement by the parties to relinquish jurisdiction to any of the courts in which the future residency of the defendant and children were contemplated. Moreover, the Texas modification order was silent as to specifying what state’s substantive law would apply to a future modification even though the parties were well aware that another move would be anticipated.
Thus, absent an agreement to the contrary, the substantive law of Texas applies to the pending motion for modification. Nothing in the orders of the Texas court included a provision as to what law would apply despite the known future move of the parties and the children. There is nothing further in the order of the Texas court regarding jurisdiction beyond the above two paragraphs discussed. Both of these paragraphs deal only with giving the mother the choice to designate where she and the children could reside in the future. Other than a change in the primary residence, the Texas court order, unlike the Arizona consent decree, is silent as to what law applies in the future.
In the event that the motion to modification of child support is granted, there still remains the question whether Connecticut or Texas’s child support guidelines should apply to determining a child support amount. In Evans v. Evans, 35 Conn.App. 246, 644 A.2d 1317 (1994), the Appellate Court held that, in modifying child support payments of a New York judgment, the controlling substantive law was New York. The Court did not specifically address which state’s guidelines to follow, but found no abuse of discretion by the trial court in applying the New York child support guidelines. Id., 250-51.
Similarly, in Symolon v. Han, Superior Court, judicial district of Waterbury, Docket No. FA-13-4029250-S (May 16, 2013, Bozzuto, J.) (56 Conn.L.Rptr. 148), the trial court addressed the issue of what state’s substantive law to apply to a motion for modification of child support as well as whether the child support guidelines in Connecticut or the foreign jurisdiction should apply to determine the child support amount. In Symolon, the marriage of the parties was dissolved in Massachusetts. The plaintiff was ordered to pay child support. The plaintiff filed a postjudgment motion to modify child support in Connecticut where the defendant and children were living. As to the issue of what state’s guidelines to apply, the court concluded that "child support guidelines are substantive in nature, and thus the [foreign jurisdiction] child support guidelines apply to the subject motion to modify child support." Id., 150. See also, Bonthu v. Bonthu, Superior Court, judicial district of New London at Norwich, Docket No. FA-06-4104170 (April 4, 2007, Sweinton, J.) (43 Conn.L.Rptr. 230) (Child support guidelines are substantive in nature and therefore the guidelines from the foreign jurisdiction are to be followed in determining a child support amount).
The court concluded that the substantive law of Massachusetts applies to the motion for modification.
Based on the foregoing, the court finds that the child support guidelines are substantive and not procedural in nature. The Texas child support guidelines shall apply to any modification if granted.
ORDER
The court finds that the substantive law of Texas applies to the motion for modification of child support. Additionally, the Texas child support guidelines shall be applied to calculate any child support amount if the motion for modification is granted.
SO ORDERED.