386 A.2d 274 | Conn. Super. Ct. | 1978
This is an action for dissolution of marriage. The defendant, the plaintiff's third husband, has filed a plea in abatement on the grounds that the plaintiff's divorce from her second husband was void as it was rendered in Haiti at a time when both parties to that decree were residents of, and domiciled in, Connecticut. Therefore, the defendant argues that the Haitian court had no jurisdiction. The plaintiff has filed a demurrer to the plea in abatement in which she raises several issues which will be discussed individually. *252
The defendant argues, however, that the saving clause of General Statutes §
The court, however, will also consider the other grounds raised by the demurrer.
While there are no Connecticut cases precisely on point, several Superior Court cases do shed light on the issue. In Guglielmino v. Guglielmino,
The defendant attempts to distinguish those cases from the present one on the grounds that they dealt with in personam jurisdiction while the issue at bar is one of subject matter jurisdiction. The attempted distinction cannot withstand scrutiny. In the first place the Guglielmino and Schreiber cases did not deal with in personam jurisdiction since a dissolution of marriage is not an in personam but rather an in rem action. Litvaitis v. Litvaitis,
Furthermore, an argument could be made that even if the jurisdictional question were determined at this point, it should be determined in favor of the plaintiff so long as there is a colorable marriage res or status to which jurisdiction might attach. This would be especially pertinent if the court were later to decide that the marriage is not open to collateral attack by this defendant. In this regard it is clear that even if the defendant can collaterally attack the Haitian divorce some parties may be prohibited from attacking it. Tippin v. Tippin,
Therefore, in accordance with the Guglielmino andSchreiber cases the demurrer to the plea is sustained on this ground. The issue should be pleaded in bar and not in abatement, and it should be decided in a trial on the merits.
In this connection it should also be pointed out that issues of estoppel might be raised against the defendant in a hearing on the merits and further that the defendant has not even alleged in his plea that the plaintiff's second husband was alive and still married to the plaintiff at the time of the present marriage. The plea is fatally defective and subject to demurrer on this ground alone. *255
The defendant claims that New York law ought to govern the issue of whether the defendant can collaterally attack the plaintiff's Haitian divorce. While the state of the marriage determines its validity;Davis v. Davis,
In a very similar case, the Superior Court decided that the second spouse could not attack the validity of a prior divorce between his wife and her former husband. Cocco v. Cocco,
Initially, it is sufficient to note that the courts in other jurisdictions are split regarding the ability of a second spouse to attack collaterally a prior divorce of his present spouse. Annot., 12 A.L.R. 2d 717. Thus, the court should be concerned primarily with the course followed by Connecticut cases, since cases of other jurisdictions point in several directions.
The Cocco case relies heavily on Tippin v. Tippin,
While it is clear that the holding in Tippin did not mandate the decision in Cocco, it cannot be said that Cocco is an illogical aberration. The Cocco court noted that at the time of the divorce the plaintiff had no legally protected interest. She claimed standing only by virtue of her subsequent marriage. The court stated that the decree, rather than adversely affecting the plaintiff's marriage, made it possible. Any adverse effects upon her marriage interests would follow not from the decree itself, but from her own attack upon its validity.
Under these circumstances a collateral attack was not permitted in Cocco and will not be permitted here. See Tyler v. Aspinwall,
The demurrer to the plea is sustained on all grounds.