De Almeida-Kennedy v. Kennedy

• Decision Date: 07 September 2021
• Docket Number: AC 43348
• Citation: 207 Conn.App. 244,262 A.3d 872
• Parties: Fatima K. DE ALMEIDA-KENNEDY v. James KENNEDY
• Court: Connecticut Court of Appeals

207 Conn.App. 244

262 A.3d 872

Fatima K. DE ALMEIDA-KENNEDY

v.James KENNEDY

AC 43348

Appellate Court of Connecticut.

Argued January 7, 2021

Officially released September 7, 2021

James Kennedy, self-represented, the appellant (defendant).

J. David Griffin, Winchester, VA, for the appellee (plaintiff).

Alvord, Elgo and Alexander, Js.

ELGO, J.

In this contentious postdissolution marital dispute,¹ the defendant, James Kennedy,² appeals from the judgment of the trial court granting the motion to dismiss filed by the plaintiff, Fatima K. De Almeida-Kennedy, for lack of subject matter jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (act), which has been adopted by Connecticut and codified in General Statutes § 46b-115 et seq. On appeal, the defendant claims that the court (1) lacked a proper basis on which to grant the motion to dismiss, (2) abused its discretion in staying enforcement of an ex parte custody order, (3) improperly concluded that it lacked continuing, exclusive jurisdiction pursuant to General Statutes § 46b-115l (a) (1), (4) improperly dismissed several motions unrelated to the issue of child custody or visitation, and (5) abused its discretion in staying consideration of his motion for modification. We affirm in part and reverse in part the judgment of the trial court.

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 to the defendant's alimony and child support obligations and joint legal custody with primary physical custody remaining with the plaintiff.

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 that the defendant has not seen the minor children in person since that judgment was rendered.

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 for the hearing, she submitted an affidavit in support of her motion to dismiss.

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 "Connecticut does not have exclusive, continuing jurisdiction" under § 46b-115l (a) (1).⁹ In addition, the court expressly declined to exercise jurisdiction over the present dispute pursuant to General Statutes § 46b-115q, finding that "Connecticut is an inconvenient forum" and that "Tennessee is a more appropriate forum" to resolve the child custody dispute between the parties.¹⁰ Accordingly, the court dismissed four of the defendant's pending motions.¹¹ In addition, the court ordered the custody proceeding that was instituted by the defendant's application for an emergency ex parte order of custody to be "stayed upon the condition that a child custody proceeding be promptly commenced in Tennessee."¹²

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...