Rosengarten v. Downes

• Decision Date: 30 July 2002
• Docket Number: (AC 22253)
• Citation: 802 A.2d 170,71 Conn. App. 372
• Court: Connecticut Court of Appeals
• Parties: GLEN ROSENGARTEN v. PETER DOWNES

71 Conn. App. 372

802 A.2d 170

GLEN ROSENGARTEN v. PETER DOWNES

(AC 22253)

Appellate Court of Connecticut.

Argued March 28, 2002.

Officially released July 30, 2002.

Foti, Flynn and Dupont, Js.

Gary I. Cohen, for the appellant (plaintiff).

Opinion

FLYNN, J.

This is an appeal from the trial court's judgment dismissing an action to dissolve a same sex civil union for lack of subject matter jurisdiction, which union the plaintiff, Glen Rosengarten, claims was entered into with the defendant, Peter Downes, in Vermont, pursuant to Vt. Stat. Ann. tit. 15, § 1201 et seq. (2001).¹ Service of process on the defendant, who apparently resides in New York, was accomplished by certified mail in accordance with an order of notice. The trial court dismissed the action because it concluded that General Statutes § 46b-1 and Practice Book § 25-2 grant powers to the Superior Court to hear and decide actions for dissolution of marriages between a man and a woman, and the Vermont civil union did not fall into the category of other family relations matters set out in General Statutes § 46b-1 (17).

The court determined that it was not empowered with "`plenary and general subject matter'jurisdiction," much less the ability to exercise its broad statutory equitable powers to dissolve a civil union. On appeal, the plaintiff does not claim that the civil union may be dissolved as a marriage. Instead, he claims that the trial court improperly sua sponte dismissed the action for lack of subject matter jurisdiction because § 46b-1 (17) grants the Superior Court subject matter jurisdiction over "all such other matters within the jurisdiction of the Superior Court concerning children or family relations as may be determined by the judges of said court" and that the dissolution of a Vermont civil union is a matter relating to family relations. The plaintiff further claims that principles of full faith and credit demand that Connecticut recognize civil unions entered into under the laws of Vermont, and thereby the right to dissolve them in a Connecticut forum, because Connecticut has a public policy in favor of recognizing civil unions and, therefore, the court improperly dismissed this action seeking a dissolution of such a union for lack of subject matter jurisdiction. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. The plaintiff commenced this action by writ of summons and complaint, dated July 11, 2001. The complaint alleged that the plaintiff and the defendant were joined in a civil union in Vermont on December 31, 2000, pursuant to the statutes of the state of Vermont, that the civil union had broken down irretrievably and that the plaintiff had resided in Connecticut for at least one year preceding the commencement of the action. Pursuant to the complaint, the plaintiff sought "[a]n order dissolving the civil union of the parties" and "[s]uch other and further relief to which the Plaintiff may be entitled in law or equity." Without holding a hearing, the court ordered the action dismissed on August 8, 2001, holding: "There is no subject matter jurisdiction under § 46b-1, and the matter is hereby dismissed sua sponte pursuant to § 25-14 of the Connecticut Practice Book." Practice Book § 25-14 provides: "Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." See also Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4-5, 675 A.2d 845 (1996). This appeal followed. At the time of the dismissal, the defendant had not filed an appearance in the trial court and he has not filed an appearance in this appeal.

On February 25, 2002, this court issued two orders. First, we ordered the parties to file supplemental briefs addressing the following issue: "Was it plain error for the trial court to dismiss this action without notice and a hearing, and should the dismissal be reversed accordingly, with an order directing the trial court to hold a hearing to determine whether it has jurisdiction over this matter?" The only responsive brief filed was that of the plaintiff, who argued that the trial court could raise the issue of subject matter jurisdiction sua sponte and that no hearing was necessary because jurisdictional facts were not in dispute, citing our holding in Pinchbeck v. Dept. of Public Health, 65 Conn. App. 201, 782 A.2d 242, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001). The plaintiff argued in his brief that "[t]here was simply nothing that any testimony regarding the plaintiffs claim for relief, i.e., dissolution of civil union, could have added to the court's understanding of the jurisdictional issue: Does the Connecticut Superior Court have subject matter jurisdiction in this case, a complaint for dissolution of a civil union, a matter which concerns `family relations matters'?" The plaintiff did not mention his second prayer for relief, which requested that the court grant any other "relief to which the Plaintiff may be entitled in law or equity."

We agree with the plaintiff that under Pinchbeck v. Dept. of Public Health, supra, 65 Conn. App. 201, the court did not need to hold an evidentiary hearing to aid in determining whether it had jurisdiction to dissolve a civil union. "When issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983). In Pinchbeck, however, we explained that "[i]n the absence of any disputed facts pertaining to jurisdiction, a court is not obligated to hold an evidentiary hearing before dismissing an action for lack of jurisdiction." Pinchbeck v. Dept. of Public Health, supra, 209.

In the present case, there are no factual issues in dispute, and the factual record before us, though sparse, is sufficient to determine whether there is jurisdiction to dissolve the plaintiffs Vermont civil union. There is nothing in the complaint to indicate that both parties to the purported union are of the same sex, and no evidence was taken on that issue. However, § 1201 (2) of title 15 of the Vermont Statutes Annotated provides: "`Civil Union' means that two eligible persons have established a relationship pursuant to this chapter, and may receive the benefits and protections and be subject to the responsibilities of spouses." Section 1202 (2) of title 15 of the Vermont Statutes Annotated provides that parties to a civil union must "[b]e of the same sex and therefore excluded from the marriage laws" of Vermont. In Vermont, pursuant to § 1201 (4), marriage is defined as "the legally recognized union of one man and one woman." Vt. Stat. Ann. tit. 15, § 1201 (4). Although not specifically pleaded, it is therefore clear from the complaint that the civil union described is between two persons of the same sex. We conclude that the record before the trial court was adequate for it to make a determination as to whether it had jurisdiction to dissolve a civil union and, therefore, it was unnecessary for the court to conduct an evidentiary hearing.

Second, we ordered the trial court to articulate, in a memorandum of decision, its reasons for dismissing the matter for lack of subject matter jurisdiction. In its articulation dated March 4, 2002, the court again noted that it had dismissed the matter for lack of jurisdiction pursuant to § 46b-1. The court explained that although the plaintiff had denominated the case a family relations matter by using a judicial branch code, "F00," on the summons, neither § 46b-1, the statutory provision that defines the family relations matters within the jurisdiction of the Superior Court, nor Practice Book § 25-1,² which provides that family matters within the scope of the rules are those actions brought pursuant to § 46b-1, mentions the court's power to dissolve civil unions. The court held that "[m]atters such as this which implicate significant issues of public policy are more properly within the domain of the legislature ... [and] [a]s such, the legislature of a sister state cannot, in effect, make such a determination for the people of Connecticut." In support of this conclusion, the court relied on General Statutes § 45a-727a (4), which provides that "the current public policy of the state of Connecticut is now limited to a marriage between a man and a woman." It also relied on the Defense of Marriage Act, Pub. L. No. 104-199, § 2 (a), 110 Stat. 2419, codified at 28 U.S.C. § 1738C. It observed that title 28 of the United States Code, § 1738C, provides: "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."

The issue raised by the trial court's dismissal of the action involves questions about the exercise of subject matter jurisdiction over foreign civil unions. In suggesting that jurisdiction may be found under subdivision 17 of § 46b-1, the plaintiff himself recognizes the difficulty of fitting his claim for relief under subdivision (1) of § 46b-1. Section 46b-1 provides in relevant part: "Matters within the jurisdiction of the Superior Court deemed to be family relations matters shall be matters affecting or involving: (1) Dissolution of marriage...." Clearly this civil union is not a marriage recognized under § 46b-1 because it was not entered into between a man and a woman. See General Statutes §§...