St. Denis-Lima v. St. Denis

• Decision Date: 04 June 2019
• Docket Number: AC 40675
• Citation: 190 Conn.App. 296,212 A.3d 242
• Court: Connecticut Court of Appeals
• Parties: Daelte ST. DENIS-LIMA v. Thomas J. ST. DENIS

190 Conn.App. 296

212 A.3d 242

Daelte ST. DENIS-LIMA

v.Thomas J. ST. DENIS

AC 40675

Appellate Court of Connecticut.

Argued October 10, 2018

Officially released June 4, 2019

Brittany Bussola Paz, New Haven, for the appellant (plaintiff).

Heather M. Brown-Olsen, for the appellee (defendant).

Alvord, Prescott and Flynn, Js.

FLYNN, J.

The plaintiff, Daelte St. Denis-Lima, appeals from the judgment of the trial court, rendered following the court's granting of the motion to dismiss that had been filed by the defendant, Thomas J. St. Denis. The plaintiff claims that (1) the court improperly denied her request for an evidentiary hearing on the issue of subject matter jurisdiction, (2) the court's finding of a final judgment of dissolution in the country of Brazil was clearly erroneous, and, alternatively (3) even if Brazil issued a final judgment of dissolution, that judgment should not be recognized under the principle of comity. We disagree with the plaintiff's claims and affirm the judgment of the court.

The following facts are relevant on appeal. The parties were married on October 20, 2004, in Lenox, Massachusetts. They are parents of two minor children. A previous action for dissolution of marriage had been filed by the plaintiff in the judicial district of Fairfield, which was dismissed by the court on May 19, 2015, for want of subject matter jurisdiction because both the plaintiff and the defendant had testified that they were residents of Brazil; thus, neither party then satisfied the residency requirement of General Statutes § 46b-44 (a)¹ sufficient to confer jurisdiction on the Connecticut Superior Court. See Lima–St. Denis v. St. Denis , Docket No. FA-14-4048088, 2015 WL 3652095, 2015 LEXIS 1174 (Conn. Super. May 19, 2015). The plaintiff commenced the operative dissolution of marriage action on December 30, 2015, claiming that "[o]ne of the parties to the marriage has been a resident of the state of Connecticut for at least twelve months next preceding the date of the filing of the complaint or next [preceding] the date of the decree, or one of the parties was domiciled in this state at the time of the marriage and returned to [this] state with the intention of permanently remaining before the filing of the complaint." On February 16, 2016, the defendant filed a motion to dismiss the plaintiff's dissolution action on six grounds: (1) lack of subject matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficiency of process; (5) insufficiency of service of process; and (6) comity law precluding the action in Connecticut.

On May 16, 2016, while the defendant's motion to dismiss was pending in the present case, the marriage of the parties was dissolved by a decree of divorce entered by a court of competent jurisdiction in Brazil, as a prior dissolution proceeding had been pending there since February, 2015. This decree was registered in Brazil as a final decree on July 6, 2016. On April 10, 2017, the defendant in this case, Thomas J. St. Denis,² registered with the court³ a copy of that same final decree from Brazil. The registered decree contained a decision issued by a Brazilian court on May 16, 2016, which concludes with a decree that "the divorce of the couple Thomas Joseph St. Denis and Daelte Lima St. Denis so it reach its full legal effects." A status conference was held before the court on March 6, 2017, in which the plaintiff and her trial counsel, Attorney Allen A. Currier, were present. At the status conference, the plaintiff's counsel acknowledged that the defendant's counsel had filed affidavits stating that the parties' marriage already had been dissolved by a decree in Brazil.

Despite not filing a counteraffidavit, the plaintiff's counsel, nevertheless, represented to the court that the conclusions in the affidavit were in dispute. Neither party requested an evidentiary hearing at that time.

On April 21, 2017, the court heard oral argument on the defendant's motion to dismiss, but it declined the plaintiff's request for an evidentiary hearing made on that day, wherein the plaintiff intended to proffer an expert witness, the plaintiff's lawyer in the Brazilian dissolution proceedings, who would contest the validity of the documents submitted by the defendant and claim that the parties already were divorced in Brazil. The following colloquy occurred on April 21, 2017, between the court and the plaintiff's counsel regarding his request for an evidentiary hearing:

"The Court: ... I mean, this is obviously a late disclosure of what would purport to be an expert witness.

"[The Plaintiff's Counsel]: Yes, Your Honor, I—I received this document a week ago. And I knew I had to—I understood—I reviewed it myself, I—I found serious problems with it. And so we—

"The Court: Well, I don't know what you're alluding to.

"[The Plaintiff's Counsel]: Well, that there isn't really a final judgment in Brazil. And that—that two different actions down in Brazil are being taken together. There is no divorce decree, then—in Brazil .... And I can—I can offer evidence of that with testimony from a lawyer in Brazil that we brought up here who is the lawyer in that case, part of the firm in that case. And in order for the court to extend comity, there are a couple of things that must occur—

"The Court: Well, wait a minute, let's—let's—just—everybody, let's—first of all, the lawyer—a lawyer in the case is not an unbiased witness. An expert is a person who is—brought into the case to inform the court on—on issues that are beyond the normal experience of the court ... not a person who ... represents one of the parties....

"[The Plaintiff's Counsel]: Your Honor, that may be so, but within this—this short period of time this was FedExed to me less than a week ago. Within that short period of time that I had to react, we—we didn't, first of all, know until a—a day ago we'd be able to bring somebody up from Brazil. And somebody who was knowledgeable with the documents....

"The Court: Well, wait a minute, [counsel], correct me if I'm wrong, but you know, I've—I have a copy that—that I—that had been sitting in my office. I have a copy that's been sitting on my—on my file cabinet since February 15th of 2016, which is the motion to dismiss. So, it strikes me as a little bit disingenuous, I guess to use a more mellifluous phrase, that—that you suddenly—this is suddenly going to be an issue. The—the nub of this issue is, is there a valid legal process that the parties have submitted themselves to in Brazil.... [T]he question of whether or not this court is going to entertain an action to dissolve a marriage that may or may not have been already dissolved, then, that's ... the fundamental issue.... And that's been on the ... table, you know, certainly before I got involved in this. And ... as I said, we're now, in April of 2017, and this has been on my ... file cabinet ... for well over a year. So, that ... just doesn't wash.... So, this—the issue has always been, you know, what's going on in Brazil. And was—was there, you know, a valid decree."

After this colloquy, the plaintiff's counsel offered to the court a document to support the proposition that the proceedings in Brazil had been stayed and were not yet final. The defendant's counsel objected to the introduction of this document because the purported official document was interlineated with writing. The court acknowledged that this document went to the weight of the evidence and granted the plaintiff three weeks to proffer a noninterlineated copy of the document and a certified translation. Additionally, the court afforded the defendant one month to submit evidence responding to that document.

Thereafter, on June 13, 2017, the court granted the defendant's motion to dismiss, concluding that the certified copies of the dissolution proceedings from Brazil by and between the parties implicated the principle of comity. Furthermore, the court noted that (1) the evidence submitted supported the finding that the marriage of the parties was dissolved by a decree of the court in Brazil on May 16, 2016, and that the decree was made final by an order of the court by way of the registration of the decree on July 6, 2016; (2) the plaintiff's appeal from the decree was dismissed; (3) both parties submitted themselves to the court in Brazil and were represented by counsel throughout the proceedings; (4) as part of the decree, the parties were awarded joint custody and certain parenting rights, and support orders were issued; and (5) although the parties continue to litigate, inter alia, alimony, property, custody, and visitation issues in Brazil, those issues did not affect the finality of the Brazilian decree dissolving the marriage. This appeal followed.

I

The plaintiff first claims that the court improperly denied her an opportunity for an evidentiary hearing regarding the existence of a final judgment of dissolution in Brazil.⁴ She argues that the defendant did not move to dismiss the present case on the ground that the marriage had been dissolved until April 20, 2017,⁵ and, therefore, she was not afforded adequate time to respond to this issue. The defendant argues that the court did not err in denying the plaintiff's last minute proffer of an undisclosed expert witness. The defendant asserts that the plaintiff had ample notice from the time she acknowledged the existence of the affidavits of foreign judgment at the March 6, 2017 status conference to request an evidentiary hearing. We are not persuaded by the plaintiff's argument.

We begin by setting forth the standard of review and applicable law. The central question in this case is whether the court properly denied the plaintiff's request for an evidentiary hearing on the issue of the Brazilian divorce decree. We review the denial of a request for an evidentiary hearing under the abuse of discretion standard. State v. Barnwell , 102 Conn. App. 255, 263, 925 A.2d 1106 (2007) ; see also Cohen v. Roll-A-Cover, LLC , ...