Babouder v. Abdennur

• Decision Date: 28 July 1989
• Docket Number: No. 0284695S,0284695S
• Citation: 566 A.2d 457,41 Conn.Supp. 258
• Court: Connecticut Superior Court
• Parties: Marie Jose BABOUDER v. Samir Jabra ABDENNUR.

Page 457

566 A.2d 457

41 Conn.Supp. 258

Marie Jose BABOUDER v. Samir Jabra ABDENNUR.

No. 0284695S.

Superior Court of Connecticut,

Judicial District of New Haven.

July 28, 1989.

Syllabus by the Court

Elizabeth A. Curry, New Haven, for plaintiff.

Sara R. Martin, New Haven, for defendant.

FULLER, Judge.

This action for dissolution of 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 § 46b-44; (3) there is pending in the Family Court, Patriarchy of Catholics, in Beirut, Lebanon, a prior claim commenced by the plaintiff claiming similar relief; (4) the plaintiff failed to file a custody statement as required by General Statutes § 46b-99; (5) the plaintiff allegedly violated the clean hands doctrine by her unauthorized removal of the parties' minor child from Lebanon in violation of a court order, by the method she used to serve the complaint on the defendant, and by her misrepresentation as to her residence.

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, 211 Conn. 232, 245, 558 A.2d 986 (1989); Baldwin Piano & Organ Co. v. Blake, 186 Conn. 295, 297, 441 A.2d 183 (1982). Jurisdiction is the power of a court to hear and to determine the cause of action presented to it. Demar v. Open Space & Conservation Commission, 211 Conn. 416, 424, 559 A.2d 1103 (1989); Lobsenz v. Davidoff, 182 Conn. 111, 116, 438 A.2d 21 (1980). Jurisdiction must exist in three particulars: the subject matter of the case, the parties, and the process. LaBow v. LaBow, 171 Conn. 433, 440, 370 A.2d 990 (1976); Brown v. Cato, 147 Conn. 418, 422, 162 A.2d 175 (1960). For subject matter jurisdiction the court must have cognizance of the class of cases to which the one to be adjudged belongs; second, the proper parties must be present; and third, the point to be decided must be, in substance and effect, within the issue. Doublewal Corporation v. Toffolon, 195 Conn. 384, 390, 488 A.2d 444 (1985); Lobsenz v. Davidoff, supra, 182 Conn. at 116, 438 A.2d 21. The Superior Court clearly has jurisdiction over actions for dissolution of marriage in general, but the source of jurisdiction over a particular dissolution action depends upon compliance with the statutory provisions which create and give the requirements for jurisdiction. Broaca v. Broaca, 181 Conn. 463, 465, 435 A.2d 1016 (1980); Kennedy v. Kennedy, 177 Conn. 47, 49-50, 411 A.2d 25 (1979); see also Demar v. Open Space & Conservation Commission, supra, 211 Conn. at 425, 559 A.2d 1103. There is no subject matter jurisdiction unless a statute provides for it. Dunham v. Dunham, 97 Conn. 440, 446, 117 A. 504 (1922). Even though a dissolution action is equitable in nature; Gluck v. Gluck, 181 Conn. 225, 228, 435 A.2d 35 (1980); it is a cause of action created by statute. Steele v. Steele, 35 Conn. 48, 54 (1868). Here, there is no challenge to the process used, and the defendant's challenge to personal jurisdiction concerns only how personal service was made on him in this state. Other than that, the only basis for a jurisdictional challenge can be noncompliance with the statutes conferring jurisdiction in a dissolution case.

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, 164 Conn. 242, 246, 320 A.2d 809 (1973). The doctrine concerns the merits of the claims and the position of the parties. In deciding whether it lacks subject matter jurisdiction, a court usually does not inquire into the merits of the case. Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988). The clean hands doctrine cannot be raised on a motion to dismiss.

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 § 52-231a provides that before the court enters a decree in any matter involving the custody of children, there must be a statement filed that there is no other pending proceeding, or if there is, a statement must be filed as to the nature of that proceeding. At most, the proper statement must be filed before custody can be determined at a hearing on the merits, but the failure to file such a statement is not a jurisdictional defect and there is jurisdiction, at least, for the purposes of a dissolution of the marriage.

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. 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., 99 Conn. 95, 98, 121 A. 280 (1923); Hill v. Goodrich, 32 Conn. 588 (1865); annot., 98 A.L.R.2d 551. This also applies to conduct by a plaintiff's agents and attorneys. Hill v. Goodrich, supra, at 590. This rule does not apply, however, when the defendant enters the state on his own, even if the plaintiff and his agents then engage in trickery to make service of process. Siro v. American Express Co., supra, 99 Conn. at 99-100, 121 A. 280; Nowell v. Nowell, 24 Conn.Sup. 314, 318-19, 190 A.2d 233 (1963); Hays v. Hays, 221 Mo.App. 516, 517-18, 282 S.W. 57 (1926); Hammett v. Hammett, 74 A.D.2d 540, 424 N.Y.S.2d 913 (1980); Guzzetta v. Guzzetta, 75 Ohio L.Abs. 326, 329, 137 N.E.2d 419 (1956); Strong v. Strong, 299 P.2d 148, 150 (Okla.1956); 98 A.L.R.2d, supra, 555. In the present case, the defendant came to Connecticut voluntarily, and the attempt to serve him did not occur until after he had arrived. The action will not, under these circumstances, be dismissed for abuse of process.

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 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., 183 Conn. 108, 112, 438 A.2d 834 (1981). This rule does not apply, however, where the purposes of the two actions and the issues to be determined in them are different. Id., at 113-14, 438 A.2d 834; Nielsen v. Nielsen, 3 Conn.App. 679, 682, 491 A.2d 1112 (1985). It is not necessary to resolve this claim by a comparison of the two cases here because there is another exception to the rule which is conclusive. "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." Sauter v. Sauter, 4 Conn.App. 581, 584, 495 A.2d 1116 (1985); Schaefer v. O.K. Tool Co., 110 Conn. 528, 535, 148 A. 330 (1930). Here, the prior action is in another country. At most the court could grant a stay of proceedings; Sauter v. Sauter, supra, 4 Conn.App. at 585, 495 A.2d 1116; but that has not been requested, and it is not the issue before the court on a motion to dismiss.

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...