Opinion
No. FA 08-4036526
August 5, 2008
MEMORANDUM OF DECISION ON MOTION TO DISMISS (Motion No. 102)
Background and Factual Findings
The plaintiff husband commenced this action for divorce, with a return date of April 15, 2008, in the Superior Court of Connecticut at Hartford by service on defendant wife on March 1, 2008 at her home in North Brunswick, New Jersey. Thereafter, defendant filed the subject motion to dismiss, asserting as bases for her motion that: this court lacks subject matter jurisdiction; this court lacks personal jurisdiction over the defendant; and/or, this court should dismiss the case on the basis of forum non conveniens. The evidence at the July 23, 2008 hearing revealed the following.
The parties were married in New York in 1998 and have resided together in New Jersey since then until April or March 2008. They have a son (date of birth July 18, 2008), who lives in New Jersey and who just graduated from high school in New Jersey. The parties' marital home is located in New Jersey. Defendant continues to reside in the marital home in New Jersey and she works in New Jersey. The parties have joint bank accounts in New Jersey. Plaintiff continues to receive mail addressed to the parties' marital home in New Jersey.
Defendant wife's only connection with the State of Connecticut is comprised of her occasional visits to this state to visit plaintiff's family and to see her accountant who relocated in the last year or so from New York.
Plaintiff works in the State of New York. Plaintiff owns real estate in Connecticut jointly with his siblings. Apparently this property has been in his family for some time. The property has been occupied by third-party tenants at least since the fall of 2007. Plaintiff claims to have established a residence with his sister in Hartford, Connecticut, as of April or March of 2008. Plaintiff very recently acquired a Connecticut driver's license and that license lists his sister's Hartford, Connecticut address. Defendant contends that plaintiff has spent weekday nights in New Jersey during the spring and summer of this year.
The parties jointly own property in New York.
Discussion
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Filippi v. Sullivan, 273 Conn. 1, 8 (2005) (internal quotation marks omitted). See also Connecticut Practice Book § 25. If a challenge to the court's personal jurisdiction is raised by a defendant, the plaintiff must bear the burden of proving the court's jurisdiction. Knipple v. Viking Communities, 236 Conn. 602, 607 (1996). In addition to raising jurisdictional defects, a motion to dismiss is also the proper method for raising dismissal on the grounds of forum non conveniens. See Temlock v. Temlock, 95 Conn.App. 505, 512-13 (2006). ". . . [T]he doctrine of forum non conveniens vests discretion in the trial court to decide where trial will best serve the convenience of the parties and the ends of justice . . ." Id.
Connecticut General Statutes § 46b-44 lists as a prerequisite for the dissolution of a marriage that one of the parties reside in the State of Connecticut for twelve months before the filing of the complaint or the date of the decree. Neither party has resided in this state for twelve months at this time. The residency requirement has not been met in this case.
Even assuming there were a potential of that requirement being met at the time a decree entered in this matter if it remained in this court, there would be an additional difficulty. While this court could certainly proceed in dissolving the marriage because the marriage, the "res," is in this state as the result of the husband having recently moved here, there are insufficient contacts between the defendant and this state for the exercise of personal jurisdiction by the Connecticut court over the defendant wife. Consequently, the most that this court could do would be to dissolve the marriage, but not address any of the parties' financial issues.
Because there would not be any jurisdictional difficulties if this matter were decided in New Jersey, and because defendant has already commenced efforts to institute an action in New Jersey to dissolve the marriage, New Jersey would constitute a convenient alternative forum.
Application of the doctrine of forum non conveniens involves consideration of an alternative forum as well as a balancing of private and public interest factors, recognizing that the plaintiff's choice of forum must be given preference in the application of this doctrine. Temlock v. Temlock, 95 Conn.App. 505, 513 (2006). The facts set forth above clearly dictate that the private interest factors all favor the locus of New Jersey. In addition to those listed above relating to the numerous connections to New Jersey, most witnesses that the parties might need to call, such as an appraiser of the marital home, or verification of banking account information, would all be in New Jersey. While no public interest factors are distinctly apparent, this court does note that the complete resolution of these parties' issues in one forum would serve not only their private interests but also the public interest of avoidance of multi-state litigation of diverse issues in one single family matter.
The court finds that the residence requirement has not been established. In addition, the court finds that personal jurisdiction cannot be exercised over the defendant wife for purposes of resolving financial and related issues. Finally, the court finds that the available alternative forum is the more appropriate locus for the litigation of the dissolution of the parties' marriage. For all of the above reasons, the Motion to Dismiss is granted.