227 A.2d 431 | Conn. Super. Ct. | 1967
On October 28, 1965, the plaintiff husband brought suit for divorce in this court. On September 7, 1966, the defendant wife answered plaintiff's complaint and filed a cross complaint seeking a divorce on the grounds of intolerable cruelty. On December 8, 1966, the plaintiff husband sought permission to amend his complaint. Permission to amend the complaint was granted, and said amended complaint was filed on December 16, 1966. Thereafter, on January 4, 1967, the defendant wife *491 filed her answer to the amended complaint and filed the same cross complaint to the amended complaint that had been filed on September 7, 1966, to the original complaint.
The matter is before this court for determination of the plaintiff husband's motion to erase the defendant wife's cross complaint for want of jurisdiction. The plaintiff contends that this court has no jurisdiction over defendant's cross complaint for divorce because the defendant has not satisfied the residence requirements for jurisdiction set forth in § 46-15 of the General Statutes. Section 46-15 provides as follows: "If the plaintiff has not continuously resided in this state three years next before the date of the complaint, it shall be dismissed unless the cause of divorce has arisen subsequently to the removal into this state, or unless the defendant has continuously resided in this state three years next before the date of the complaint and actual service has been made upon him, or unless the plaintiff was domiciled in this state at the time of the marriage and before instituting the complaint returned to this state with the intention of permanently remaining. For the purpose of this section, any plaintiff who has served or is serving with the armed forces, as defined by section
The law overwhelmingly supports the defendant's right to have her cross complaint heard and decided by the Connecticut courts. "It is a well-established rule of law that where an action for divorce is brought by a resident of the state of the forum against a nonresident, a divorce may be granted *492 the nonresident on his or her cross petition, although a statute, in general terms, requires the plaintiff in an action for divorce to have been a resident of the state for a designated time." Note, 89 A.L.R. 1203, 1204; see 24 Am. Jur.2d, Divorce and Separation, § 265. Nelson also states this to be the clear-cut rule: "It is held in most states, either under the terms of the local residence requirement provisions or in the absence of any provision applicable to the situation, that if the residence requirements to support an original suit (usually residence of petitioner or complainant for a specified length of time) are present, a cross-action or counterclaim does not need to be supported by residence on the part of the cross-complainant, since it is not the intent of the statutes to impose the same residential requirements upon a defendant unwillingly brought into court as are prescribed for a plaintiff instituting suit." 2A Nelson, Divorce and Annulment § 21.30 (2d Ed. Rev. 1961).
Reference is respectfully made to the many cases in support of the authorities quoted above and cited in the notes therein. A discussion of two of the cases illustrates the application of the rule. InDaniels v. Souders,
Where a nonresident appears and answers and all other elements of jurisdiction are present, in general the court has jurisdiction for all purposes.Tucker v. Tucker,
There is no constitutional objection to predicating jurisdiction on the domicil of the defendant within the state; the states are free to authorize a divorce at the suit of a nonresident plaintiff against a domiciled defendant. Where an action for divorce is brought by a resident of the state of the forum against a nonresident, a divorce may be granted the nonresident on his or her cross petition, although a statute requires the plaintiff to have been a resident for a designated time. Clutton v.Clutton,
The court finds that defendant wife may proceed with her cross complaint.
Motion to erase defendant's cross complaint denied.