Denis-Lima v. Denis

          Argued October 10, 2018

         Procedural History

         Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Hon. Michael E. Shay, judge trial referee, granted the defendant's motion to dismiss and rendered judgment thereon, from which the plaintiff appealed to this court; thereafter, the court, Hon. Michael E. Shay, judge trial referee, issued a rectification of the record. Affirmed.

          Brittany Bussola Paz, for the appellant (plaintiff).

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

          Alvord, Prescott and Flynn, Js.

          OPINION

          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 plaintiffs 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 St. Denis-Lima v. St. Denis, Docket No. FA-14-4048088, 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 court^[3] 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 plaintiffs 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 counter affidavit, the plaintiffs 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 plaintiffs request for an evidentiary hearing made on that day, wherein the plaintiff intended to proffer an expert witness, the plaintiffs 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 plaintiffs 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 Plaintiffs 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 Plaintiffs 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 ...