4 Conn. App. 581 | Conn. App. Ct. | 1985
The parties to this dissolution action were married in Vermont in 1958. They later moved to New York, where the defendant continues to reside. The plaintiff has lived in Connecticut since 1980.
The plaintiff argues that the trial court erred, first, in considering the question of domicil prior to trial, and second, in finding that he was a domiciliary of New York. As an alternate ground upon which the judgment may be affirmed; Practice Book § 3012 (a); the defendant argues that the court properly dismissed the action because of the prior pending suit between the parties in New York.
The plaintiff initially argues that the court erred in dismissing the action for lack of subject matter jurisdiction because it should not have considered the question of domicil until trial. On the basis of LaBow v. LaBow, 171 Conn. 433, 370 A.2d 990 (1976), he argues that while domicil is essential to “final jurisdiction,” residence alone provides jurisdiction for the filing of a dissolution complaint. We agree.
In LaBow, our Supreme Court pointed out that the term “residence” as used in our dissolution statutes has been construed by our courts to require domicil plus substantially continuous physical residence in this state
There is no merit to the alternate ground for affirming the judgment which the defendant has raised, that is, that the trial court properly dismissed this action because of the prior pending suit in New York. The rule that the pendency of a prior action between the same parties and to the same ends is grounds for dismissal has efficacy only where the actions are pending in the same jurisdiction. The pendency of an action in one state is not a ground for abatement of a later action in another state. Schaefer v. O. K. Tool Co., Inc., 110 Conn. 528, 535, 148 A. 330 (1930); 1 Stephenson, Conn. Civ. Proc. § 104 (a). This is so even though the court in which the first action is pending has acquired complete jurisdiction and even though the parties are reversed in the subsequent action. 1 C.J.S., Abatement and Revival § 65 (a); see Miller v. Miller, 213 Neb. 219, 221-22, 328 N.W. 2d 210 (1982).
It makes little sense, however, for two actions for the same relief to be litigated in parallel, with “the plaintiff in each seeking to rush to judgment.” Nielsen v. Nielsen, 3 Conn. App. 679, 684, 491 A.2d 1112 (1985). In the interests of judicial economy, a court may, in the exercise of its discretion, order that the second
There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with the law.
In this opinion the other judges concurred.
General Statutes (Rev. to 1977) § 46-35 provided in pertinent part: “No decree dissolving a marriage or granting a legal separation shall be entered unless one of the parties to the marriage has been a resident of this state for at least twelve months preceding the date of the filing of the complaint or next preceding the date of the decree . . . provided nothing herein shall be construed to prevent the filing of a complaint at any time after either party has established residence in this state or the granting of temporary relief pursuant to such complaint . . . .” (Emphasis added.)
General Statutes § 46b-44 provides in pertinent part: “(a) A complaint for dissolution of a marriage or for legal separation may be filed at any time after either party has established residence in this state.
“(b) Temporary relief pursuant to the complaint may be granted in accordance with sections 46b-56 and 46b-83 at any time after either party has established residence in this state.
“(c) Decree dissolving a marriage or granting a legal separation may be entered if: (1) one of the parties to the marriage has been a resident of this state for at least the twelve months next preceding the date of the filing of the complaint or next preceding the date of the decree; (2) one of the parties was domiciled in this state at the time of the marriage and returned to this state with the intention of permanently remaining before the filing of the complaint; or (3) the cause for the dissolution of the marriage arose after either party moved into this state. . . .”