Doe v. Doe

Decision Date07 April 1998
Docket Number15437,Nos. 15436,s. 15436
Citation710 A.2d 1297,244 Conn. 403
CourtConnecticut Supreme Court
PartiesJane DOE v. John DOE.

Helen F. Ryan and Daniel B. Ryan, Middletown, for appellant in Docket No. 15436, appellee in Docket No. 15437 (plaintiff).

Daniel Z. Shapiro, Middletown, for appellant in Docket No. 15436, appellee in Docket No. 15437 (minor child).

Frank C. White, Jr., for appellee in Docket No. 15436, appellant in Docket No. 15437 (defendant).

Christine M. Whitehead, Hartford, Louis I. Parley, New Haven and William T. Fitzmaurice, Stamford, filed a brief for the American Academy of Matrimonial Lawyers, Connecticut Chapter, as amicus curiae.

Richard Blumenthal, Attorney General, and Gregory T. D'Auria and Jane R. Rosenberg, Assistant Attorneys General, filed a brief for the Attorney General as amicus curiae.

Before CALLAHAN, C.J., and BORDEN, BERDON, NORCOTT, KATZ, PALMER and PETERS, JJ. 1

BORDEN, Associate Justice.

This dissolution of marriage case involves a custody dispute concerning a minor child who was conceived by artificial insemination between the defendant husband 2 and a surrogate mother (surrogate) whose parental rights and whose then husband's parental rights, if any, have now been terminated. Although the surrogate turned the child over to the plaintiff wife and the defendant upon the birth of the child, and although both parties raised the child, who is now age fourteen, as their daughter, no adoption proceedings were ever instituted by which the plaintiff would have become the adoptive mother of the child.

The trial court, Stanley, J., ruled that it had no subject matter jurisdiction to adjudicate the custody of the minor child incident to the dissolution proceeding because she was not a " 'child of the marriage' " within the meaning of our dissolution statutes. The principal issues on appeal involve whether the trial court had subject matter jurisdiction, pursuant to General Statutes § 46b-56, to adjudicate the child's custody, and whether the plaintiff legally may be considered to be a parent of the child for purposes of that adjudication.

The plaintiff and the minor child, acting through her attorney appointed by the trial court, jointly appeal from the judgment of dissolution challenging the trial court's determination that it had no jurisdiction to adjudicate the custody of the child. The defendant also appeals from the judgment challenging the trial court's determination regarding the causes of the marital breakdown, and its awards regarding allocation of the assets of the parties, alimony and attorney's fees. 3 We conclude that: (1) the child is not a child of the marriage within the meaning of our marital dissolution statutes; (2) nonetheless, the trial court had subject matter jurisdiction, pursuant to § 46b-56, 4 to adjudicate the custody of the child as between the defendant as the child's father, and the plaintiff, as a third person asserting a claim to custody of the child; and (3) for purposes of that adjudication, under the undisputed facts of this case the statutory presumption afforded by General Statutes § 46b-56b 5 has been rebutted as a matter of law. We also conclude that the trial court's determination regarding the causes of the marital breakdown is supported by the evidence. Accordingly, we reverse the judgment in part and remand the case for a trial on the issue of custody and on the necessarily related financial issues.

The plaintiff brought this dissolution action in January, 1991. In her original complaint, she alleged that she and the defendant had one minor child "issue of their marriage," who was born on April 30, 1983. On February 11, 1991, the plaintiff and the defendant entered into a signed stipulation for temporary orders, without prejudice to the right of either party "to reclaim all matters to the court so that the court at a later date could have a full hearing" on any of the matters covered by the stipulation. The stipulation provided for joint custody 6 of the child "but with the principal place of residence" of the child with the plaintiff, and also provided that the child would reside with the defendant on certain weekends. 7 This stipulation was approved by the court on the same date. 8

In June, 1993, however, the plaintiff amended her complaint by deleting the allegation that the child was the child of the marriage, and alleged instead that "[t]he plaintiff and the defendant have been acting as the parents of [the child] since the child's birth. The plaintiff is neither the biological mother, nor has she legally adopted the minor child. The plaintiff has no knowledge whether the defendant is the natural father of said child or not, and the defendant has not yet legally adopted said child to the best of her knowledge." The plaintiff included in her claims for relief orders for sole or joint custody of the child, visitation rights and support. The defendant, in his answer filed in December, 1994, left the plaintiff to her proof regarding her allegation that she had been acting as the child's parent, denied that the plaintiff did not know whether the defendant was the child's natural father, and admitted the rest of the allegations, namely, that the defendant had been acting as the child's parent, that the plaintiff was neither the biological nor the adoptive mother of the child, and that the defendant had not legally adopted the child. In addition, the defendant, by way of special defenses, claimed that the child was not a child of the marriage and that, therefore, the court lacked jurisdiction "to determine any issues with respect to her in the context of this action." 9 In December, 1993, the defendant filed a petition in the Middletown Probate Court for termination of the parental rights of the surrogate and her now former husband, who was married to her at the time of the child's birth. The defendant also filed a petition in the Probate Court for a determination that he is the father of the child. The Probate Court had not acted on either of these petitions when the trial of this case began in January, 1995. On June 28, 1995, however, the Probate Court granted the defendant's paternity petition and adjudicated him to be the father of the child. On September 6, 1995, the Probate Court granted the petition for termination of the parental rights of the surrogate and her former husband on the ground of abandonment. 10 These orders have not been appealed, and they are, therefore, final.

Meanwhile, however, the trial of this case had been proceeding. After seventeen days of testimony, beginning on January 4, 1995, and ending on June 9, 1995, the trial court, in a memorandum of decision issued on November 15, 1995, found the following: the parties' marriage has broken down irretrievably; there is no prospect of reconciliation; and, therefore, the marriage should be dissolved. The court found further that the plaintiff, who had been born in India while that nation was under British rule, had been married in England to another British subject and had three children from that marriage, all of whom are now more than eighteen years of age. In 1967, the plaintiff came to this country and worked as a companion and housekeeper for the defendant's mother. In 1971, the parties began a relationship, and in April, 1982, the plaintiff obtained a divorce in Florida from her first husband. Both parties desired to have children, although the defendant was determined to have a child with or without the plaintiff's cooperation. The plaintiff, however, had undergone a tubal ligation, and an attempt to reverse it was unsuccessful. The plaintiff also suffered from permanent injuries as a result of an automobile accident in 1972.

The trial court also found that the defendant, through an advertisement in a Connecticut newspaper, sought a surrogate mother to carry and deliver a baby. The court found further that the surrogate responded, that financial arrangements were made, and that, at the surrogate's home in Connecticut with both the defendant and the plaintiff present, the surrogate was "impregnated with the defendant's sperm by use of a syringe ...." 11 The court also found that "[t]he surrogate mother became pregnant"; see footnote 11; and that, throughout the prenatal period the defendant accompanied her to doctors' appointments, where she used the plaintiff's name, social security number and other statistical data regarding the plaintiff. Also, on occasion the plaintiff would accompany the defendant and the surrogate to the doctors' appointments, and on occasion would stuff a pillow in her clothing to simulate the appearance of being pregnant.

The plaintiff and the defendant were married on January 7, 1983, while the surrogate was approximately four months pregnant with the child. At the time of the child's birth on April 30, 1983, the surrogate was admitted to the hospital under the plaintiff's name, social security number and other relevant data. The trial court also found that the defendant supplied the hospital with the pertinent data for the child's birth certificate "under the ongoing ruse that the birth mother was [the plaintiff]." The court found further that, upon discharge from the hospital, the surrogate turned the child over to the plaintiff and the defendant, "who nurtured and raised the child with no further participation by the surrogate mother."

The trial court noted that "[o]f significance is the fact that the surrogate mother was married at the time of the child's birth, although she has since had that marriage dissolved." Noting further the presumption that a child born during wedlock is the child of the husband, unless the presumption is rebutted by clear and convincing proof; Schaffer v. Schaffer, 187 Conn. 224, 226, 445 A.2d 589 (1982); the court determined that the presumption had not been rebutted by that standard of proof. In this connection, the court noted further that it...

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