566 A.2d 457 | Conn. Super. Ct. | 1989
This action for the dissolution of a marriage commenced when the defendant was served with a copy of the complaint on May 10, 1989. The defendant has filed a motion to dismiss the complaint on five grounds: (1) personal service upon the defendant was accomplished by trick, fraud or artifice; (2) the plaintiff is not a resident of Connecticut now or when this action was commenced, and therefore has no standing to bring or to maintain this action under General Statutes §
Several of these grounds do not relate to the jurisdiction of the court to hear the case, and, therefore, are not properly raised by a motion to dismiss. When a motion to dismiss is filed questioning subject matter jurisdiction it must be disposed of before there can be other proceedings. Statewide Grievance Committee v.Rozbicki,
Although the clean hands doctrine may be a valid equitable defense in a dissolution action, it is a doctrine primarily for the protection of the court, not the parties.Pappas v. Pappas,
The claimed noncompliance with § 46b-99, which requires the filing of a statement containing certain stated information in a custody proceeding brought under the Uniform Child Custody Jurisdiction Act, does not go to the subject matter jurisdiction of the court, even if that statute applies to this proceeding, an issue which is not resolved here. General Statutes §
The defendant claims that personal jurisdiction was obtained over him by trick, fraud and artifice by the plaintiff and her attorney because of the method used to obtain service of process. The defendant's affidavit, which the court accepts for the factual basis of this claim, particularly since it was not contradicted by the plaintiff's testimony or affidavit, is as follows: "The defendant, after determining that his wife was living with a man in New Haven, came to the United States from the United Arab Emirates. After the defendant contacted the plaintiff by telephone, the plaintiff told him that if he wanted to see their daughter, he would have to arrange it through the plaintiff's attorney, Elizabeth Curry. When the attorney was contacted, the defendant was told that he had to come to the attorney's office that afternoon at 5:30 to make arrangements. *262
When the defendant arrived, the attorney had the sheriff serve him with this action and other legal papers." In Connecticut, as in other states, the court will not exercise jurisdiction in a civil case which is based upon service of process on a defendant who has been decoyed, enticed or induced to come within the court's jurisdiction by any false representation, deceitful contrivance or wrongful device for which the plaintiff is responsible. Siro v. American Express Co.,
The next claim is that this action should be dismissed because of prior action brought by the plaintiff that is pending in Lebanon. At the hearing on this motion, the plaintiff described the nature of the proceeding in Lebanon pending before the Family Court, Patriarchy of Catholics, a religious court. The proceedings there are materially different from a civil action in the courts of the United States for dissolution of marriage, although some similar relief and orders are made, such as custody and support orders. A dissolution of marriage *263
cannot be granted in that proceeding. The pendency of a prior action between the same parties is a ground for dismissal of a second action, for reasons of justice and equity and for the further reason that it is duplicative and therefore vexatious. Henry F. Raab Connecticut,Inc. v. J. W. Fisher Co.,
The final claim is that the plaintiff does not have standing to bring this action since she is not a resident of this state, but a citizen and domiciliary of Lebanon, where she was born, married and resided before entering the United States on September 4, 1988. At the hearing on this motion there was testimony from the plaintiff and Sheila Brent, an attorney specializing in immigration law, as to the plaintiff's immigration status. The complaint alleges that the plaintiff had been a resident of this state for nine months when the action was started on May 10, 1989. Where a motion to dismiss is accompanied by supporting affidavits containing *264
undisputed facts, those facts may be accepted on jurisdictional issues, and the court does not have to presume the validity of the allegations of the complaint.Barde v. Board of Trustees, supra. Where there is testimony on a motion to dismiss, it can be given more weight than statements in affidavits. Rosenblit v. Danaher,
The plaintiff applied for and obtained a B-1 Business Visa from the United States consulate in Lebanon, which allowed her to come to the United States. To obtain this type of visa she was required to swear that she was a resident of Lebanon and intended to return there when the visa expired. Upon arriving in the United States, and in order to enter, she was issued an I-94 form which governs the length of the authorized stay under the visa and is issued for six months. One six month extension is allowed for a B-1 Business Visa, and one has been granted to the plaintiff until September 3, 1989. Since this is a temporary visa, for immigration law purposes a person cannot establish residence here while in a B-1 status, because it is issued on the basis that the applicant is a resident of another country and will return there when the visa expires; it does not establish any legal status in this country. The plaintiff has no relatives here and has not applied for a change in her status or type of visa, and remains a nonimmigrant visitor to this country. Even a change in status, if applied for, cannot establish residence retroactively. The defendant claims that the plaintiff's temporary status here also cannot give her residency status for purposes of satisfying the statutory requirements for a dissolution action under the laws of this state. The plaintiff claims that she intends to remain in Connecticut, eventually hopes to marry the man with whom she is residing in New Haven, and that the intent to remain, if possible, gives her standing to bring this action. *265
The pertinent statute is §
The key question is whether the plaintiff can be a resident for purposes of §
The motion to dismiss is denied.