OPINION
Kenneth L. Shluger, J.
Memorandum
of Decision Re Motion to Open and Set Aside Judgment #134.10
and 134.20
The
question presented is whether the 2017 Connecticut divorce
judgment of the parties is invalidated by a 2013 divorce
proceeding in the Dominican Republic?
A
review of the record reveals that the parties were married on
January 2, 1987 in the Dominican Republic. There are 3
children, issue of the marriage born 1989, 1996, and 1997.
The
parties were divorced on January 13, 2017 pursuant to an
agreement in the New Haven judicial district providing for
the care and custody of the children, alimony, and property
distribution. Now comes the defendant, seeking to open and
set aside said judgment claiming that the parties were
previously divorced in the Dominican Republic on April 22
2013 and, therefore, this court lacked subject matter
jurisdiction to have entered a judgment of dissolution
thereafter. A hearing was held before the undersigned on July
11, 2017.
The
court has fully considered the applicable statutes as well as
the evidence, applicable case law, the demeanor and
credibility of the witnesses, and arguments of counsel in
reaching the decisions reflected in the orders that issue in
this decision.
The
court finds that the following facts were proven by a
preponderance of the evidence:
1. The parties were married on January 2, 1987 in the
Dominican Republic.
2. There are 3 children, issue of the marriage born 1989
1996 and 1997.
3. Beginning in 2011, the parties were having financial
difficulties, particularly as it pertained to their home
mortgage.
4. In 2011, the parties entered into a Chapter 13 Bankruptcy
reorganization in an effort to reduce the home mortgage debt.
5. Thereafter, the parties were still having financial
problems with their home mortgage and the wife proposed that
they get divorced just so she could refinance the mortgage at
a lower rate, with her qualifying as a single mother. The
husband quit claimed his interest in the marital residence to
the wife on October 15, 2012.
6. The parties participated in a divorce through paperwork
filed in the Dominican Republic on March 23, 2013. The decree
itself was rendered on April 22, 2013.
7. Soon thereafter, the wife was able to qualify for a
mortgage modification.
8. The Dominican Republic divorce judgment (exhibit B)
recites that both parties are " respectively domiciled
and residents in the United States of North America and
accidentally in this city of Bonao [Dominican
Republic]."
9. The Dominican Republic divorce judgment purports to enter
a dissolution and establish custody of the children but makes
no disposition of assets or debts, life insurance, health
insurance, nor does it reference alimony or child support.
10. The parties continued to live together as husband and
wife, raising their children as a family, paying their bills
as a family and engaging in all aspects of their marital
relationship without change until 2015. In 2014, the husband
gave to the wife $10, 000 so she could start a business with
her sister.
11. Both parties have resided continuously and been domiciled
in Connecticut from at least 2012 to the present time. At no
time in 2013 was either party ever present in the Dominican
Republic.
12. On October 22, 2015, the wife instituted dissolution
proceedings in the judicial district of New Haven and the
husband vacated the marital residence.
13. The husband filed an appearance, a cross complaint and
numerous pleadings in the protracted litigation, which lasted
for 15 months.
14. At no time during the litigation or during the hearing at
which time the dissolution agreement was entered did either
party make any reference to a previous divorce in the
Dominican Republic.
15. The parties were divorced on January 13, 2017 pursuant to
an agreement in the New Haven judicial district.
16. From January 13, 2017 until recently, the husband abided
by the terms and conditions of the New Haven judgment. It was
not until the wife filed a motion for contempt on March 31
2017 did the husband raise the question of the validity of
their divorce.
The
central question presented is whether the Dominican Republic
divorce proceeding in which the parties participated in 2013
is recognized and binding under Connecticut law.
RECOGNITION
OF A DIVORCE OBTAINED IN A FOREIGN COUNTRY
"
The full faith and credit clause of the constitution of the
United States does not apply to a divorce obtained in a
foreign country. Courts of the United States are not required
by federal law to give full force and effect to a judgment
granted in a foreign nation. Hilton v. Guyot, 159
U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95 [1895]; Rosenbaum v.
Rosenbaum, 309 N.Y. 371, 130 N.E.2d 902 [1955];
Caldwell v. Caldwell, 298 N.Y. 146, 81 N.E.2d 60
[1948]; Christopher v. Christopher, 198 Ga. 361, 31
S.E.2d 818 [1944]; 33 Fordham L.Rev. 449; 32 U.Chi.L.Rev.
802. On the other hand, judgments of courts of foreign
countries are recognized in the United States because of the
comity due to the courts and judgments of one nation from
another. Such recognition is granted to foreign judgments
with due regard to international duty and convenience, on the
one hand, and to rights of citizens of the United States and
others under the protection of its laws, on the other hand.
This principle is frequently applied in divorce cases; a
decree of divorce granted in one country by a court having
jurisdiction to do so will be given full force and effect in
another country by comity, not only as a decree determining
status, but also with respect to an award of alimony and
child support. The principle of comity, however, has several
important exceptions and qualifications. A decree of divorce
will not be recognized by comity where it was obtained by a
procedure which denies due process of law in the real sense
of the term, or was obtained by fraud, or where the divorce
offends the public policy of the state in which recognition
is sought, or where the foreign court lacked jurisdiction. 24
Am.Jur.2d, Divorce and Separation, § 964."
Litvaitis v. Litvaitis, 162 Conn. 540, 544-45, 295
A.2d 519 (1972).
In
terms of whether the court of the Dominican Republic had
jurisdiction, " [a] divorce judgment is a judgment in
rem. Vogel v. Sylvester, 148 Conn. 666, 670, 174
A.2d 122 [1961]. If a divorce judgment is pronounced by a
tribunal which does not have jurisdiction to do so, it may be
attacked collaterally on that ground in this country; comity
will not demand its recognition. Thus, ordinarily, our courts
will not recognize a divorce obtained in a foreign country if
neither spouse had a [domicile] in that country. The rule
that a [domicile] of at least one of the spouses is essential
to give the court jurisdiction to grant a divorce applies to
decrees of foreign nations as well as to decrees entered
within the United States, even though a [domicile] is not
required by the laws of the jurisdiction which grants the
divorce. 24 Am.Jur.2d, Divorce and Separation, s 965; see
Rice v. Rice, 134 Conn. 440, 445, 58 A.2d 523
[1948], aff'd, 336 U.S. 674, 69 S.Ct. 751, 93 L.Ed. 957
[1949]; State v. Cooke, 110 Conn. 348, 351, 148 A
385 [1930]; Gildersleeve v. Gildersleeve, 88 Conn.
689, 692, 92 A. 684 [1914]. The traditional requisite for
subject-matter jurisdiction in matrimonial proceedings has
been [domicile]. Rice v. Rice, supra . 'Under
our system of law, judicial power to grant a divorce . . . is
founded on [domicile].' Williams v. North
Carolina, 325 U.S. 226, 229, 65 S.Ct. 1092, 1095, 89
L.Ed. 1577 [1945]. Regardless of its validity in the nation
awarding it, the courts of this country will not generally
recognize a judgment of divorce rendered by the courts of a
foreign nation as valid to terminate the existence of a
marriage unless, by the standards of the jurisdiction in
which recognition is sought, at least one of the spouses was
a good faith domiciliary in the foreign nation at the time
the decree was rendered. Note, 13 A.L.R.3d 1419; see
Wells v. Wells, 230 Ala. 430, 161 So. 794 [1935];
Estate of Nolan, 56 Ariz. 361, 108 P.2d 388 [1940];
Bethune v. Bethune, 192 Ark. 811, 94 S.W.2d 1043
[1936]; note, 192 Ark. 811, 94 S.W.2d 1043, 105 A.L.R.
817." Litvaitis v. Litvaitis, supra, 162 Conn.
545-46. See also, Juma v. Aomo, 143 Conn.App. 51,
57-58, 68 A.3d 148 (2013), wherein the Appellate Court
affirmed the judgment of the trial court because, inter
alia, the trial court found that the divorce obtained by
the defendant in Kenya was not entitled to recognition on the
basis of comity because neither party was domiciled in Kenya
when the divorce was filed.
It is
noted, that in Spalding v. Spalding, 171 Conn. 220
224-28, 368 A.2d 14 (1976), the court stated that Rice v.
Rice, supra, 134 Conn. 441, was " a case involving
the recognition of a Nevada divorce decree . . . [and that
the language of Rice v. Rice, supra ] . . . equated
[domicile] on the date of the decree with the proper
jurisdiction for recognition under the full faith and credit
clause. It must be read, however, in the light of the fact
that the state referee in that case found that the
complainant in the Nevada action had never acquired
[domicile] in Nevada. Furthermore, in the later case of
White v. White, 138 Conn. 1, 8, 81 A.2d 450 [1951],
the court looked to [domicile] at the date the action in the
other state began . . . Rice v. Rice, supra, is
inconsistent with both Baker v. Baker, supra, [166
Conn. 476, 488, 352 A.2d 277 (1971)], and White v. White,
supra, and, to the extent of the inconsistency, it is
overruled. The court in the present...
