FATIMA K. DE ALMEIDA-KENNEDY v. JAMES KENNEDY
(AC 43348)
Appellate Court of Connecticut
Argued January 7—officially released September 7, 2021
Alvord, Elgo and Alexander, Js.
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Syllabus
The defendant, whose marriage to the plaintiff previously had been dissolved, appealed to this court from the judgment of the trial court granting the plaintiff‘s motion to dismiss the defendant‘s pending motions, which included a motion for modification of his alimony, child support and visitation orders, two motions for contempt, a motion for an order to prevent the plaintiff from filing additional motions without leave of the court pursuant to Strobel v. Strobel (92 Conn. App. 662), a motion to remove the guardian ad litem, and a motion to compel compliance with his discovery request, all for lack of subject matter jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (
- The defendant could not prevail on his claim that the trial court lacked a proper basis on which to grant the plaintiff‘s motion to dismiss: the substance of the affidavit submitted by the plaintiff, which recited details of her relocation, in addition to other documentation that she provided in connection with her motion to dismiss, including an individual education plan for her son that was prepared by his school in Tennessee and an electrical bill for a residence in Tennessee that listed the plaintiff as the account holder, undermined the defendant‘s claim that the plaintiff did not introduce any admissible evidence as to her residence, the length of time at her residence, the location of the children, or her financial circumstances.
- This court declined to review the defendant‘s claim that the trial court abused its discretion in staying enforcement of the emergency ex parte custody order: the claim was not properly before this court because the defendant failed to file a motion for review of the stay order, which, pursuant to the applicable rule of practice (§ 66-6), was his sole remedy.
- The trial court properly concluded that, pursuant to the applicable statute (
§ 46b-115l (a) (1) ), it did not have exclusive, continuing jurisdiction over the defendant‘s motions relating to custody of and visitation with the minor children and, therefore, it properly granted the plaintiff‘s motion to dismiss those motions: jurisdiction under§ 46b-115l (a) (1) terminated in April, 2018, when the plaintiff and the minor children relocated to Tennessee following the defendant‘s relocation to Florida, as neither the parties nor the minor children continued to reside in Connecticut after that time; moreover, Connecticut did not reacquire exclusive, continuing jurisdiction when the defendant returned to reside in the state, as§ 46b-115l (a) (1) pertained only to continuing jurisdiction, not interrupted or intermittent jurisdiction. - The trial court improperly dismissed certain of the defendant‘s motions unrelated to the issues of child custody or visitation: the trial court‘s dismissal order was predicated on its conclusion that it lacked subject matter jurisdiction under the act, however, the act only concerned issues of custody or visitation and was not applicable to orders relating to child support or other monetary obligations; accordingly, although the defendant‘s two motions for contempt, which concerned custody and visitation with the minor children, and his motion for modification, which sought to modify the existing visitation order, were properly dismissed, the defendant‘s motion to modify his alimony and child support orders, along with his motions for a Strobel order, to remove the guardian ad litem, and to compel compliance with his discovery request, were beyond the purview of the act, as they had no relation to the issues of child custody or visitation, and, consequently, they were improperly dismissed.
- The trial court did not abuse its discretion in deferring consideration of the defendant‘s motion to modify his alimony, child support, and visitation orders: the defendant‘s motion to reargue, which asked the trial court to reconsider and reverse its determination that it lacked subject matter jurisdiction under the act, required the deferral of consideration of the merits of his motion to modify until after the jurisdiction question was fully resolved.
Procedural History
Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the court, Gould, J., rendered judgment dissolving the marriage and granting certain other relief in accordance with the parties’ separation agreement; thereafter, the court, Egan, J., granted the plaintiff‘s motion to dismiss the defendant‘s motions for a Strobel order, to remove the guardian ad litem, to compel, and for contempt and stayed the custody proceeding that was instituted by the defendant‘s application for an emergency ex parte order of custody, and the defendant appealed to this court; subsequently, the court, Stewart, J., issued a stay on the defendant‘s motion to modify, and the defendant amended his appeal; thereafter, the court, Egan, J., granted the defendant‘s motion to reargue and amended its decision relating to the plaintiff‘s motion to dismiss and dismissed the custody proceedings and the defendant‘s motion to modify and for contempt, and the defendant amended his appeal. Affirmed in part; reversed in part; further proceedings.
James Kennedy, self-represented, the appellant (defendant).
J. David Griffin, for the appellee (plaintiff).
Opinion
The following facts and procedural history are relevant to this appeal. On August 2, 2010, the trial court dissolved the parties’ marriage. The judgment of dissolution incorporated by reference a written separation agreement, which provided, inter alia, that (1) the plaintiff was to have legal custody of the parties’ two minor children, (2) the defendant was permitted supervised visits, and (3) the defendant would pay weekly unallocated alimony and child support.3 On December 9, 2014, that judgment was modified by agreement to provide for, inter alia, a reduction
On December 28, 2015, the defendant filed a motion for modification requesting, among other things, a further reduction of his alimony and child support obligations. The court, Wenzel, J., declined that request, the propriety of which this court affirmed on appeal. See De Almeida-Kennedy v. Kennedy, 188 Conn. App. 670, 674-82, 205 A.3d 704, cert. denied, 332 Conn. 909, 210 A.3d 566 (2019). On March 10, 2016, the court, Adelman, J., appointed a guardian ad litem to represent the minor children.
On August 30, 2017, the plaintiff filed a motion for contempt, on which the court, Wenzel, J., scheduled a hearing for November 8, 2017. Prior to that hearing, the defendant moved to Florida in October, 2017.
At the November 8, 2017 hearing on the motion for contempt, the plaintiff‘s counsel and the guardian ad litem informed the court that the defendant, who was not present at the hearing, had relocated to Florida and had failed to attend a child support enforcement proceeding in Connecticut one day earlier. The court also heard testimony from the guardian ad litem in support of the plaintiff‘s motion for contempt. In its oral memorandum of decision, the court concluded that the defendant was in wilful contempt of the separation agreement and, accordingly, suspended the defendant‘s unsupervised visitation rights.4 It is undisputed
In April, 2018, the plaintiff and the minor children relocated to Tennessee. The defendant thereafter filed a series of motions in April and May, 2018, including, inter alia, a motion for modification in which he sought to reduce his unallocated alimony and support obligations and to modify his visitation order.5 The defendant also filed an application for an emergency ex parte order of custody on May 8, 2018, which the court denied.
On November 7, 2018, the plaintiff, appearing at that time in a self-represented capacity, filed a motion to dismiss the defendant‘s pending motions for lack of jurisdiction under the act. In that motion, the plaintiff asked the court to “terminate jurisdiction” for various reasons, most notably the fact that she had resided in Tennessee with the minor children for more than six months.6 While that motion to dismiss was pending, the defendant filed another application for an emergency ex parte order of custody on November 27, 2018. That same day, the court, Gould, J., entered an emergency order awarding temporary custody to the defendant. The court also ordered a hearing to be held on the custody issue within fourteen days.
On December 11, 2018, the court held such a hearing at which the plaintiff‘s counsel, the defendant, and the guardian ad litem were present. At that time, the guardian ad litem apprised the court that the defendant‘s November 27, 2018 application for an emergency ex parte order of custody “contain[ed] misleading, incorrect, incomplete, as well as false statements.” At the conclusion of that hearing, the court, Hon. Robert J. Malone, judge trial referee, ordered all existing orders regarding the custody of the minor children to be stayed until the plaintiff‘s motion to dismiss for lack of subject matter jurisdiction was resolved.
On May 1, 2019, the court held a hearing on the plaintiff‘s motion to dismiss. The defendant appeared at that hearing and was heard by the court. Although the plaintiff was unable to travel to Connecticut
In its August 29, 2019 memorandum of decision, the court, Egan, J., stated in relevant part: “In support of her motion [to dismiss], the plaintiff claims that she and the parties’ minor children had lived in Franklin, Tennessee for at least seven months as of November 7, 2018, when the ex parte application was filed. She further claims that as of October, 2018, the defendant had lived one year in Satellite Beach, Florida after leaving Connecticut. She claims the defendant returned to Connecticut as of October 8, 2018; however, as of that date, both parties had both been living out of . . . Connecticut for over six months and the defendant had been living out of state for a full year.
“The plaintiff further submits that she is the primary emotional, physical and financial caregiver for the children, and they have continued to reside in Tennessee since their move in [April, 2018]. The children [have been] enrolled in Williamson County Schools in Tennessee since April 22, 2018. Individual Education Plans . . . were established for them on May 7, 2018. All other aspects of their care have been transferred to Tennessee.
“The plaintiff further argues that with respect to the [Connecticut] child support order, on September 14, 2018, the Family Support Magistrate dismissed the child support case because the order was enforced in Florida. The plaintiff emphasized that while she is working in Tennessee, she has modest means. Travel to Connecticut to address motions would require her to secure childcare for the children at a steep cost to her, take the children out of school to travel with her, or find [someone to care for] them while she is away.7 She does not have the means to afford an attorney.
“The defendant testified that he resides in Connecticut. He returned in October, 2018, from Florida. He argues that the plaintiff has gaps in her Tennessee residency and that she gave inconsistent dates of residency. Further, she admits to travel out of state.
“With respect to his relationship with the children, the defendant argues that he tried to have access to them, but he was unsuccessful due to the plaintiff‘s actions. The defendant testified that he has no information on the care and relationship of the children.
“With respect to the ties of the minor children to Connecticut, the defendant argues that he has family here. The children have lifelong relationships here. They were only pulled out of school in March, 2018. They had medical providers in March, 2018. They would be able to receive an education and medical treatment no different than they would have in 2018. . . . At the time of the [plaintiff‘s November 7, 2018 motion to dismiss for lack of jurisdiction], the plaintiff and the minor children had lived in Tennessee for seven months. The defendant resided in Florida for over one year.” (Footnote added.)
The court continued: “Based upon the evidence introduced and the representations of the plaintiff‘s counsel, the court finds that all parties no longer lived in [Connecticut] at the time of the filing of the motion to dismiss on November 7, 2018.8 The court then concluded that
On September 3, 2019, the defendant filed an appeal of the court‘s August 29, 2019 judgment with this court. He then filed a motion to reargue with the trial court. At that time, the defendant‘s April 4, 2018 motion for modification of his alimony, child support, and visitation orders remained pending. On December 12, 2019, the court, Stewart, J., stayed consideration of that motion to modify until the defendant‘s motion to reargue was resolved. On December 31, 2019, the defendant filed an amended appeal from that stay order.
On July 9, 2020, the court issued its memorandum of decision on the defendant‘s motion to reargue. The court first concluded it lacked both exclusive, continuing jurisdiction pursuant to
I
On appeal, the defendant claims that the court lacked a proper basis on which to grant the motion to dismiss filed by the plaintiff. More specifically, he claims that the plaintiff “did not introduce any admissible evidence as to her residence, the length of time at the residence, the location of the children, nor [her] financial circumstances.” On our plenary review of the record before us; see Mendillo v. Tinley, Renehan & Dost, LLP, 329 Conn. 515, 523, 187 A.3d 1154 (2018); GMAC Mortgage, LLC v. Ford, 144 Conn. App. 165, 174, 73 A.3d 742 (2013); we disagree.
The following additional facts are relevant to the defendant‘s claim. On January 10, 2019, the plaintiff filed a memorandum of law in support of her motion to dismiss, which was accompanied by multiple exhibits, including a copy of the individual educational program for her minor son prepared by Williamson County Schools in Franklin, Tennessee for the period beginning May 7, 2018, and an electrical bill dated June 5, 2018, that lists the plaintiff as the account holder for a “service address” located in Franklin, Tennessee. In addition, the plaintiff submitted an affidavit that recited certain details regarding her relocation to Tennessee. At the May 1, 2019 hearing on the motion to dismiss, the following colloquy occurred regarding that affidavit:
“The Court: Well, under the Practice Book the motion to dismiss requires the motion, a memorandum of law and an affidavit may—may be submitted to, I think, fill in the record—
“[The Plaintiff‘s Counsel]: I—I did submit an—
“The Court: —with the facts.
“[The Plaintiff‘s Counsel]: —affidavit.
“The Court: You did.”15
At that time, the defendant did not dispute the existence of that affidavit. Moreover, in its August 29, 2019 memorandum of decision, the court specifically found that the plaintiff had filed an affidavit in support of her motion to dismiss.
In his subsequent motion to reargue, the defendant nevertheless claimed that the plaintiff never “supplied an affidavit” to the court. In addressing that claim, the court stated in its July 9, 2020 memorandum of decision on the motion to reargue that, during a December 4, 2019 hearing on that motion, the plaintiff‘s counsel “represented that she filed the plaintiff‘s sworn affidavit dated May 1, 2019, on the day of
In that affidavit, the plaintiff averred, inter alia, that “[o]n or around October, 2017, the defendant moved to Florida“; that “[i]n April, 2018, as a result of financial hardship and to be closer to family, I relocated myself and both minor children to Franklin, Tennessee“; that “[a]t the time I relocated, the defendant still resided in Florida“; that “[t]he defendant currently owes more than $107,000 in back child support, according to Connecticut Child Support Enforcement“; that the minor children “are enrolled in the Williamson County School System in Franklin, Tennessee,” where they were “thriving academically and emotionally“; that “[d]ue to financial hardship, I enrolled our family in public benefits“; that “[o]n or about March 20, 2019, Tennessee began a child support action against the defendant“; and that, “[a]s of May 1, 2019, I have continuously resided in Tennessee, with our children, for more than one year.”
The substance of that affidavit, along with other documentation provided in connection with the motion to dismiss, undermines the defendant‘s claim that the plaintiff failed to produce “any admissible evidence as to her residence, the length of time at the residence, the location of the children, nor [her] financial circumstances.” We therefore reject that claim.
II
The defendant next contends that the court abused its discretion in staying enforcement of the emergency ex parte custody order. That claim is not properly before us.17
As this court has explained, “[p]ursuant to Practice Book § 61-14, [t]he sole remedy of any party desiring the court to review an order concerning a stay of execution shall be by motion for review under [Practice Book §] 66-6. . . . Issues regarding a stay of execution cannot be raised on direct appeal. . . . Practice Book § 66-6 requires that [m]otions for review . . . be filed within ten days from the issuance of notice of the order sought to be reviewed. . . . If a party does not file a motion for review, that party is precluded from challenging the court‘s stay order by means of a direct appeal. . . . We therefore decline to review this claim because it has been improperly presented for resolution on appeal.” (Citations omitted; internal quotation marks omitted.) Clark v. Clark, 150 Conn. App. 551, 575–76, 91 A.3d 944 (2014). Because the defendant failed to file a motion for review of the stay order in question, we decline to review his claim.
III
The defendant also claims that the court improperly concluded that it did not have exclusive, continuing jurisdiction pursuant to
“The purposes of the [act] are to avoid jurisdictional competition and conflict with courts of other states in matters of child custody; [to] promote cooperation with the courts of other states; [to] discourage continuing controversies over child custody; [to] deter abductions; [to] avoid [relitigation] of custody decisions; and to facilitate the enforcement of custody decrees of other states. . . . The [act] addresses [interjurisdictional] issues related to child custody and visitation. . . . The [act] is the enabling legislation for the court‘s jurisdiction.” (Internal quotation marks omitted.) Parisi v. Niblett, 199 Conn. App. 761, 770, 238 A.3d 740 (2020).
The salient provision of the act is codified in Connecticut in
The defendant nonetheless submits that the courts of this state reacquired “exclusive, continuing jurisdiction” on his return to Connecticut in September, 2018. He has provided no legal authority to support that novel contention. By its plain language,
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Exclusive, continuing jurisdiction is not reestablished if, after the child, the parents, and all persons acting as parents leave the [s]tate, the [noncustodial] parent returns.” (Emphasis added.) Unif. Child Custody Jurisdiction and Enforcement Act (1997) § 202, comment (2), supra, 9 U.L.A. (Pt. IA) 674-75; accord In re M.R.F.-C., 158 N.E.3d 688, 695, 697 (Ohio App. 2020) (affirming trial court‘s conclusion that it lacked exclusive, continuing jurisdiction when “Ohio was the children‘s ‘home state’ when the initial custody proceedings occurred . . . [but] was no longer the children‘s home state due to the family‘s relocation to Michigan” and concluding that “[m]other did not satisfy Ohio‘s residency requirement when she attempted to reestablish residence in Ohio shortly before filing her motion“); cf. In re Marriage of Ruth, 32 Kan. App. 2d 416, 421-22, 83 P.3d 1248 (2004) (concluding that Kansas trial court retained exclusive, continuing jurisdiction despite fact that mother and children moved to another state because father “has continuously resided in Kansas since the [parties‘] divorce” (emphasis added)).
In light of the foregoing, we conclude that the trial court properly determined that it did not have exclusive, continuing jurisdiction over the defendant‘s November 27, 2018 motion for custody and his other motions related to custody and visitation with the minor children.19 The court, therefore, properly granted the plaintiff‘s motion to dismiss those motions.
IV
We next address the defendant‘s claim that the court, in ruling on the plaintiff‘s motion to dismiss and his motion to reargue, improperly dismissed certain motions unrelated to the issue of child custody or visitation. We agree.
The court‘s dismissal order was predicated on its conclusion that it lacked
The critical question, then, is whether the motions dismissed by the court fall within the purview of “[c]hild custody determination[s],” as defined by
At the same time, the defendant‘s April 4, 2018 motion to modify the unallocated alimony and child support order plainly is beyond the purview of the act, as that order relates to the defendant‘s monetary obligations. See
V
As a final matter, the defendant claims that the court abused its discretion in deferring consideration of his April 4, 2018 motion to modify his alimony, child sup- port, and visitation orders. We disagree.
As our Supreme Court has explained, “[i]t is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court. . . . [A]s soon as the jurisdiction of the court to decide an issue is called into question, all other action in the case must come to a halt until such a determination is made.” (Citations omitted.) Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991). In the present case, the court‘s December 12, 2019 decision to defer consideration of the defendant‘s motion for modification expressly was predicated on the pendency of the defendant‘s motion to reargue, in which he asked the court to reconsider and reverse its determination that it lacked subject matter jurisdiction under the act. Given those circumstances, we cannot conclude that the court abused its discretion. To the contrary, the court properly deferred consideration of the merits of the defendant‘s motion to modify until after the jurisdictional question fully was resolved.
VI
In sum, we conclude that the court properly dismissed the defendant‘s November 27, 2018 motion for custody, his April 4, 2018 motion to modify the visitation order, and his April 4 and May 14, 2018 motions for contempt for lack of subject matter jurisdiction under the act. We further conclude that, because they do not relate to “[c]hild custody determination[s],” as that term is defined by the act, the court improperly dismissed the defendant‘s April 4, 2018 motion to modify his alimony and support obligations, his May 3, 2018 motion for a Strobel order, his May 3, 2018 motion to remove the guardian ad
The judgment is reversed with respect to the defendant‘s April 4, 2018 motion to modify the unallocated alimony and child support order, his May 3, 2018 motion for a Strobel order, his May 3, 2018 motion to remove the guardian ad litem, and his May 3, 2018 motion to compel compliance, and the case is remanded for further proceedings according to law; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
Notes
“The factual basis set out in the motion for contempt is consistent with all of the evidence that had been submitted to the court previously. It appears to be supported by the investigation of our court-appointed guardian ad litem, including her home visit with the children.
“Normally, the court would be reluctant to proceed on a motion of this kind in the absence of one of the parties. It does appear that [the defendant] had notice and there is no evidence before the court to indicate that his absence from the court today was anything other than entirely voluntary and calculated.
“I do note for the record that when he was last before the court and pursuant to the agreement . . . [on September 21, 2017], I specifically indicated to [the defendant], as well as the plaintiff, that pending motions would be heard at the future scheduled hearing date with regard to all other pending motions. And this was about four weeks after the plaintiff had filed her motion for contempt, which is the subject of today‘s hearing. I believe that the immediate best interests of the children require the court to address the problems that increasingly plague this case and I‘m not going to let [the defendant] . . . continue what I find to be his significant misconduct because he chooses not to be here.
“So I do find based on the evidence that‘s been presented to the court that [the defendant] is in wilful contempt of the court‘s judgment, which includes the separation agreement as modified from time to time by the court and the parties. And specifically, that he continues to disparage the plaintiff to communicate with the children concerning matters that are inappropriate, offensive and harmful to the children.
“In light of that contempt, it‘s the order of the court that on an interim basis the court suspends the right of [the defendant] to visitation with either child. Physical visitation will be allowed only with the specific consent of the [plaintiff] or the guardian ad litem. Such visitation must be supervised by a person or agency acceptable to the [guardian ad litem] or the actual presence of the [plaintiff] if she agrees to do so.
“Such visitation must take place within the state of Connecticut. Under no circumstances may [the defendant] remove or travel with either child outside the state of Connecticut or assist them in any way in leaving the state of Connecticut. Should [the defendant] choose to seek modification of this order he must appear here in the state of Connecticut at a properly scheduled time and place.”
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[T]he defendant filed these motions when he was living in the state of Florida when both parties were [not] living [in] Connecticut. . . . The defendant was physically closer to Tennessee and the [minor] children prior to his return to Connecticut after having been living for one full continuous year in Florida.” (Emphasis omitted.)