Parisi v. Niblett

• Decision Date: 01 September 2020
• Docket Number: AC 42438
• Citation: 238 A.3d 740,199 Conn.App. 761
• Court: Connecticut Court of Appeals
• Parties: Jason S. PARISI v. Abby NIBLETT

199 Conn.App. 761

238 A.3d 740

Jason S. PARISI

v.Abby NIBLETT

AC 42438

Appellate Court of Connecticut.

Argued January 23, 2020

Officially released September 1, 2020

John F. Morris, Hartford, for the appellant (plaintiff).

DiPentima, C. J., and Elgo and Devlin, Js.^*

DiPENTIMA, C. J.

The plaintiff, Jason S. Parisi, appeals from the judgment of the trial court dismissing his motion for modification of Florida child custody orders on jurisdictional grounds. On appeal, the plaintiff claims that the court improperly (1) failed to conclude that it had subject matter jurisdiction to modify the Florida judgment pursuant to General Statutes § 46b-56 (a), and (2) deferred to the Florida court and determined that it lacked subject matter jurisdiction regarding the plaintiff's motion for modification without first conducting an evidentiary hearing. We do not agree with the plaintiff's first claim, but agree with his second claim.¹ Accordingly, we reverse the judgment of the trial court.

The following facts, as gleaned from the record, and procedural history are relevant to the plaintiff's claims on appeal. In March, 2016, the marriage of the plaintiff and the defendant, Abby Niblett, was dissolved in a Florida Circuit Court. The judgment of dissolution incorporated by reference the parties’ settlement agreement and parenting plan. The settlement agreement provided that the parties share parental responsibilities with respect to their minor child. The parenting plan provided that "[t]he parents shall have 50/50 parenting time" and specifically provided that "[t]he parents shall have month to month time sharing with the father having the child in the even months and the mother having the child in the odd months. ... Once the child starts school, the parties shall negotiate to develop a time sharing schedule that is in the best interest of the child." With respect to modification, the parenting plan provided that "[t]he court will revisit the issue of time sharing when the minor child begins attending formal kindergarten."

The plaintiff filed a "supplemental petition for modification of time sharing" in Florida on April 12, 2017. In that petition, the plaintiff stated that, prior to the judgment of dissolution, the defendant had moved to Alabama. The plaintiff sought to be the child's major time sharing parent as a result of the child's having reached the age to attend formal kindergarten. On July 14, 2017, the defendant moved to dismiss the petition. On August 9, 2018, the defendant filed an "emergency motion for return of the minor child" in Florida. In this motion, the defendant alleged that she had moved to Warrior, Alabama in July, 2014, and that, since 2015, both parties continuously conducted parenting time on a monthly rotating basis, but that the plaintiff interfered with that schedule by keeping the child for longer than one month.

In October, 2017, the plaintiff moved to Connecticut. The plaintiff voluntarily withdrew his petition in Florida on September 13, 2018. On September 22, 2018, the defendant filed a petition for modification in Florida.² On October 9, 2018, the plaintiff filed a postjudgment motion for modification in Connecticut. In this motion, the plaintiff alleged that the minor child had attained school age and that the parties have not been able to agree on the school that the child should attend or on new time sharing arrangements. The plaintiff stated that he had enrolled the child in kindergarten in Newington, where he resided, and that the defendant attempted to enroll the child in school in Warrior, Alabama, where she resided. The plaintiff did not file an affidavit, as required by Practice Book § 25-57.³ On November 5, 2018, the defendant moved to dismiss the plaintiff's motion for modification. In that motion, she noted that the plaintiff had failed to notify the Connecticut court regarding the ongoing child custody litigation in Florida, and argued that Florida retained jurisdiction over the matter.

On December 14, 2018, the Connecticut court conducted a telephone conference with the Florida court to discuss jurisdiction.⁴ Counsel for both parties were present, as well as the plaintiff himself.⁵ The Florida court noted that a child custody case was pending in Florida. The Florida court explained that it "had jurisdiction when the initial divorce occurred," but that "the parties decided for whatever reason to basically relocate without permission of the Florida court. So in order for the Florida court to have any jurisdiction, one of them would need to move back here with that child. And obviously, they've been doing whatever they want to do, and now, unfortunately, they've got a problem, and coming to the courts to say, we've messed up. So, taking that into account, Florida certainly is not–would have continuing jurisdiction, however, since the child is not here, the venue should not be in Florida, and honestly, it should not be in Connecticut either. The venue should be in Alabama ... where this child's been for the entire time since the divorce." The Connecticut court stated that "I think since no one is in Florida, not one parent, and not the child, that ... even though I believe you did have jurisdiction, I believe you had continuing jurisdiction until I think you lost it when everyone left." The Florida court continued, "so we have jurisdiction ... the problem is this ... Florida is not going to hear it. ... [The plaintiff] needs to go to Alabama because we're in a situation where Florida doesn't have any of these people. ... These two people decided to do whatever they wanted to do, no matter what the court order said. ... I assume what's going to happen is ... [the defendant's] attorney will do a motion to domesticate in Alabama, which is actually where that child has been for the last three or four years." The Connecticut court stated that it only had allegations, and no affidavits regarding the child's residence following the divorce. The Florida court noted that the child would come to Florida while the plaintiff resided in Florida and the defendant in Alabama, and then the plaintiff moved to Connecticut. The Florida court reasoned, "so, right now Florida maintains the continuing jurisdiction, but ... unless one of them, being the mother or father, is going to move back here to Florida ... this is going to have to be heard in Alabama, which is where that child has actually been ... because the [plaintiff] decided to vacate the state of Florida." The plaintiff's attorney noted that the plaintiff had lived in Connecticut for more than one year and the child lived equally in both Connecticut and Alabama during that time. The Florida court noted that the defendant had submitted an affidavit that did not indicate that. The Florida court stated that "the fact of the matter is Florida has continuing jurisdiction." The Connecticut court stated, "I agree, until you give it up." The Florida court stated that it was not giving up jurisdiction. The Florida court asked, "would you just dismiss your jurisdiction or lack of jurisdiction, then [the defendant's attorney] will do what needs to be done?" The Connecticut court responded in the affirmative and stated, "so, you're keeping jurisdiction. So, I'll enter a ruling in our case that due to Florida retaining jurisdiction, we don't have any." The Connecticut court issued an order that day stating that "Florida shall retain jurisdiction in this matter and the plaintiff's motion to modify ... is hereby dismissed." This appeal followed.

Following oral argument before this court, we ordered the trial court to articulate the factual and legal basis for its decision that it lacked subject matter jurisdiction over the plaintiff's motion for modification. The court clarified that the defendant was living in Alabama and that the plaintiff relocated to Connecticut in violation of the Florida divorce decree and without the consent of the defendant. The court noted that, at the time it dismissed the plaintiff's motion to modify, a custody action was pending in Florida. The court determined that the Florida court did not stay its proceedings or relinquish jurisdiction. The court stated that it dismissed the plaintiff's motion to modify pursuant to General Statutes §§ 46b-115a, 46b-115k, 46b-115l , and 46b-115m, particularly in light of the fact that Florida had not relinquished jurisdiction.

I

The plaintiff first claims that, because he followed the statutory procedures for registering the Florida judgment in this state pursuant to General Statutes § 46b-70 et seq., the court was required to conclude that it had subject matter jurisdiction to modify the Florida judgment pursuant to § 46b-56 (a). On September 17, 2018, the defendant filed in Connecticut a copy of the Florida judgment, and certified that the parties had been divorced in Florida on March 23, 2016, that to the best of his knowledge the judgment is final and has not been modified, altered, amended, set aside or vacated, and that the enforcement of such judgment has not been stayed or suspended, and that such certificate sets forth the full name. He further provided the last known address of the defendant. See General Statutes § 46b-71.⁶ He contends that he properly registered the Florida judgment pursuant to § 46b-71 and he also states that "[t]here is no claim ... that he failed to properly notify the defendant or wait the requisite period before filing this motion." See General Statutes § 46b-72.⁷ We do not agree that, following the filing of a certified copy of the Florida judgment, the court was required to conclude that it had subject matter jurisdiction without first examining the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which is codified in Connecticut at General Statutes § 46b-115 et seq.

Although the plaintiff did not raise this issue in the trial court, we will nonetheless address it because this issue implicates subject matter jurisdiction, which can be...