LaBow v. LaBow

• Decision Date: 17 August 1976
• Citation: 171 Conn. 433,370 A.2d 990
• Court: Connecticut Supreme Court
• Parties: Myrna F. LaBOW v. Ronald I. LaBOW.

Page 990

370 A.2d 990

171 Conn. 433

Myrna F. LaBOW v. Ronald I. LaBOW.

Supreme Court of Connecticut.

Aug. 17, 1976.

Jeroll R. Silverberg, New Canaan, for appellant (defendant).

Allan S. Mall, Stamford, for appellee (plaintiff).

Before HOUSE, C.J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

LOISELLE, Associate Justice.

This appeal arises from the issuance of orders of alimony and child support pendente lite in an action for dissolution of a marriage.

On July 13, 1974, the plaintiff, Myrna F. LaBow, instituted an action for dissolution of marriage by service of process on the defendant, Ronald I. LaBow, when the parties were in Weston, Connecticut, where they maintained a residence which they had used principally during the summer months. Since 1966 they had also owned an apartment in New York City, where the children attended private schools. In her initial complaint, the plaintiff alleged that she had resided continuously in Connecticut one year next before the date of that complaint. The complaint was followed on July 29 by a motion for alimony pendente lite and a motion for custody and support of minor children pendente lite. The defendant entered a special appearance and filed a plea in abatement, alleging that the court lacked jurisdiction because the plaintiff had not resided in this state for one year next before the date of the complaint nor had she been domiciled in the state one year before the date of the complaint. The plaintiff demurred to the plea, on the basis that the statute regarding dissolution of marriage does not require residence for one year before initiating an action for dissolution, but only one year's residence before a final hearing. The defendant amended his plea to allege that neither party had established a residence in this state before the filing of the complaint, to which the plaintiff filed an objection and amended her complaint by substituting for the allegation of one year's residence the allegation that '(t)he plaintiff and/or the defendant have established a residence in the state of Connecticut, and/or have resided continuously in this state one year next before the date of this complaint, and/or are domiciliaries of the state of Connecticut.' The court overruled the defendant's plea in abatement without ruling on the demurrer and made no finding as to the domicil of either party or whether either party had resided in Connecticut for one year prior to the date of the complaint, holding that on the date the plaintiff commenced the action she had 'established a residence' for the purposes of allowing the filing of the complaint and of granting pendente lite relief. The court also ordered the defendant to pay alimony and support pendente lite. The defendant has appealed from the court's action in making those awards.

General Statutes § 46-35 permits the granting of temporary support and alimony pendente lite after either party to a marriage has established 'residence' in this state and has filed a complaint seeking dissolution of the marriage. The defendant claims that the word 'residence' in that portion of the statute must be construed to mean 'domicil.'

Section 46-35 represents a substantial change from former § 46-15, which provided for jurisdiction only when (1) the plaintiff had resided continuously in this state for one year next before the date of the complaint, or (2) the cause of divorce arose after removal into this state, or (3) the defendant had continuously resided in this state for one year next before the date of the complaint and had been actually served, or (4) the plaintiff was domiciled in this state at the time of the marriage and before filing returned with intent to remain permanently.

The new statute, as amended, provides for jurisdiction for dissolution of marriage when (1) either party has been a resident of this state for at least the twelve months next preceding the date of the filing of the complaint; (2) either party has been a resident for the twelve months next preceding the date of the decree; (3) one of the parties was domiciled in this state at the time of the marriage and before the filing of the complaint returned intending to remain permanently; (4) the cause for dissolution arose after either party removed into this state. The second basis of jurisdiction is entirely new, and significant alterations have been made in the other bases. The new statute also contains a clause which was not present in its predecessor statute, providing that '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 in accordance with sections 46-42 and 46-50.' It is those named sections which authorize the court to make awards of support and alimony pendente lite after the filing of a complaint.

It cannot be inferred that the legislature, in changing the bases of permissible jurisdiction for dissolution of marriage, intended to alter them in a manner which would subject the decrees of a Connecticut court to denial of full faith and credit in another state. The requirement of domicil in an action for dissolution of marriage partakes both of personal and subject-matter jurisdiction; when the requirement is met by one of the parties, the state's nexus with the marriage is sufficient to entitle its judgment on the marriage to full faith and credit even without in-state service on the defendant.

In the prior statute, and in its predecessor (which required three years' continuous 'residence' by the plaintiff before the date of the complaint), ¹ 'residence' was construed to require domicil plus substantially continuous physical residence in this state. Morgan v. Morgan, 103 Conn. 189, 130 A. 254; Marshall v. Marshall, 130 Conn. 655, 36 A.2d 743. This accords with the pronouncement of the United States Supreme Court in Williams v. North Carolina, 325 U.S. 226, 229, 65 S.Ct. 1092, 1095, 89 L.Ed. 1577, that '(u)nder our system of law, judicial power to grant a divorce-jurisdiction, strictly speaking-is founded on domicil. (Citations omitted.) . . . Domicil implies a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance.'

For those reasons, the present statute must require, for a dissolution decree founded on the first or second of the enumerated bases, domicil plus substantially continuous residence in Connecticut by one of the parties for the twelve months next prior to either the filing of the complaint or the granting of the decree. Those connections between a person and the state are sufficient to entitle the decree to full faith and credit.

It does not necessarily follow, however, that awards of support and alimony pendente lite cannot be granted without being founded upon domicil. This court has recognized that the legislature, when it uses the term 'residence,' may or may not mean domicil. Morgan v. Morgan, supra, 103 Conn. 193, 130 A. 254. We look to the purpose of the clause concerning temporary orders to ascertain the meaning of the word 'residence' in this context. It is logical to infer that it is designed to deal with the problem raised by the addition of the new base of jurisdiction-one year's residence prior to the decree. Since jurisdiction to grant a decree on this basis cannot be determined until the date of the decree, the clause grants to the court jurisdiction to award temporary relief in advance of that determination. An order to pay money or child support is a judgment in personam, unless satisfaction is sought only from property attached within this state. Smith v. Smith, 150 Conn. 15, 18, 183 A.2d 848. Thus it requires that the court have personal jurisdiction over the defendant or order attachment of his property. Carter v. Carter, 147 Conn. 238, 159 A.2d 173. The awards of support and alimony pendente lite are akin to awards in an equitable action for support, which requires neither domicil nor residence of either party, so long as property of the defendant has been attached. Artman v. Artman, 111 Conn. 124, 149 A. 246. A money judgment of a court of one state which has both subject-matter and personal jurisdiction is entitled to full faith and credit in another state. Morris v. Jones, 329 U.S. 545, 67 S.Ct. 451, 91 L.Ed. 488, rehearing denied, 330 U.S. 854, 67 S.Ct. 858, 91 L.Ed. 1296.

In Morgan v. Morgan, supra, it was held (103 Conn. p. 197, 130 A. p. 256) that even where the Superior Court lacked jurisdiction to hear and determine an action of divorce, it nevertheless had jurisdiction 'to make the orders for an allowance and for an additional allowance to defend,' because of the state's interest in allowing the defendant wife to present her version of the facts. Applying the same rationale, it is noted that the state has an interest in the maintenance of the spouse and children during the pendency of an action for dissolution of marriage. Christiano v. Christiano, 131 Conn. 589, 595, 41 A.2d 779.

For the purposes of filing a complaint for dissolution of marriage or for the granting of alimony or support pendente lite, residence of one party, without a showing of domicil, is sufficient to give the court subject-matter jurisdiction under § 46-35. ² In view of this holding, it is unnecessary to consider the claim of the defendant that the court erred in refusing to determine whether either party was domiciled in Connecticut before issuing orders pendente lite. There is no error...