Tony Crespo v. Stanley Fuger

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Superior Court of Connecticut.

Tony Crespo v. Stanley Fuger


    Decided: June 26, 2013


On April 26, 2013, the plaintiff, Tony Crespo, filed an application seeking visitation rights with the minor child, Shya Peckham, who currently resides with the defendant.   On May 13, 2013, the defendant filed a motion to dismiss the plaintiff's visitation application, together with a memorandum of law in support of the motion.   The parties appeared on May 28, 2013 on which date the court heard argument on the motion.   For the following reasons, the motion to dismiss is denied and the application for visitation is transferred to Waterford Juvenile Court and consolidated with the pending motion for permanent guardianship.

In his application, the plaintiff seeks visitation and alleges that he has signed an acknowledgment of paternity but his name does not appear on the birth certificate of the child.   The plaintiff also alleges that the defendant is the temporary guardian of the minor child.   The affidavit concerning children filed by the plaintiff along with his visitation application states that the minor child has been residing with the defendant since approximately 2010.   In the affidavit, the plaintiff checked the box that states:  “I do not know of any other civil or criminal proceedings in Connecticut or any other state, now or in the past, that could affect the current proceeding ․” However, the plaintiff also added in handwriting “Ashley Nardozza (mother) filed for custody that was taken,” and wrote “Waterford, CT” in the space for court location.

The defendant moves to dismiss the plaintiff's visitation application claiming a lack of jurisdiction, insufficiency of process and improper venue because (1) pursuant to General Statutes § 46b–115s(a), the plaintiff was required, but failed, to disclose that the minor child is currently the subject of a proceeding in the Waterford Superior Court for Juvenile Matters, which directly impacts the custody of the child;  (2) the application fails to name both legal guardians of the minor child, as required by Practice Book § 25–4;  and (3) the affidavit fails to name both parties with whom the minor child resides, as required by General Statutes § 46b–115s(a) and Practice Book § 25–57.


“As in civil matters, the scope of the motion to dismiss in family matters is carefully circumscribed.   It may be used to assert only ‘(1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process and (5) insufficiency of service of process.’  ․ The standard of review of a motion to dismiss is ․ well established.   In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ․ Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ․ [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ․” (Citations omitted;  internal quotation marks omitted.)   Fennelly v. Norton, 103 Conn.App. 125, 133–34, 931 A.2d 269, cert. denied, 284 Conn. 918, 931 A.2d 936 (2007).

A. General Statutes § 46b–115s(a)

The defendant argues that the visitation application should be dismissed because the minor child is currently the subject of a proceeding for permanent guardianship in the Waterford Superior Court for Juvenile Matters.   The defendant argues that plaintiff was required to disclose this fact to the court, pursuant to General Statutes § 46b–115s(a), but failed to do so.

General Statutes § 46b-l15s(a) provides in relevant part that “[i]n a child custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable and not confidential under state law, under oath as to the child's present address or location, the places where the child has lived during the past five years, and the names and present addresses of the persons with whom the child has lived during the past five years.   The pleading or affidavit must state whether the party:  (1) Has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child custody determination;  (2) knows of any civil or criminal proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to family violence, protective orders, termination of parental rights and adoptions, and if so, identify the court, the case number and the nature of the proceeding ․” General Statutes § 46b–115s(d) states that “[e]ach party has a continuing duty to inform the court of any proceeding in this state or another state that could affect the current proceeding.”

In this case, although the plaintiff improperly checked the box reflecting no knowledge of other proceedings, the plaintiff did in fact add in handwriting that mother had filed for custody and that the court location was Waterford, Connecticut.   Thus there was disclosure of other proceedings, even if the plaintiff did not fully comply with § 46b–115s.   In any event, noncompliance does not affect the court's subject matter jurisdiction and is not grounds for dismissal.   See Babouder v. Abdennur, 41 Conn.Sup. 258, 261, 566 A.2d 457 (1989).  Section 46b–115s(b) states that “[i]f the information required by subsection (a) of this section is not provided, the court upon motion of a party or on its own motion may stay the proceeding until such information is provided.”   In the present case, the partial compliance with § 46b–115s does not create a jurisdictional defect which would necessitate dismissal of the action.

B. Failure to Name All Proper Parties

The defendant argues that the visitation application should be dismissed because the plaintiff failed to name both legal guardians of the minor child (Stanley and Deborah Fuger) in the application and failed to name both legal guardians with whom the minor child resides in the affidavit concerning children.   The plaintiff named Stanley, but not Deborah Fuger in the visitation application and in the affidavit concerning children.   The defendant contends that the identity of both legal guardians was readily available to and reasonably ascertainable by the plaintiff as both legal guardians are named in the pending petitions before the Waterford Juvenile Court.   The defendant asserts that the failure to name Deborah Fuger in the application and affidavit renders the application legally insufficient.

Practice Book § 25–4 provides in relevant part that “[e]very application in an action for visitation of a minor child ․ shall state ․ the names of the parents and legal guardian of such minor child or children, and the facts necessary to give the court jurisdiction.”  Practice Book § 25–57 provides in relevant part that “[b]efore the judicial authority renders any order in any matter pending before it involving the custody, visitation or support of a minor child ․ an affidavit shall be filed with the judicial authority averring ․ information which meets the requirements of the Uniform Child Custody Jurisdiction and Enforcement Act, General Statutes § 46b–115, et seq ․ [and] that no person not a party has physical custody or claims custody or visitation rights with respect to the child.”

In general, failure to join an indispensable party 1 is not a subject matter jurisdictional defect.   See Bauer v. Souto, 277 Conn. 829, 838, 896 A.2d 90 (2006).  “While failure to join indispensable parties generally does not implicate a court's subject matter jurisdiction, such failure ‘may implicate due process concerns that would compel a court to require notice or joinder before proceeding with the action.’  ․ [A] court may refuse to proceed ․ if a claim cannot properly be adjudicated without the presence of those indispensable persons whose substantive rights and interests will be necessarily and materially affected by its outcome ․” (Citations omitted;  internal quotation marks omitted.)  98 Lords Highway, LLC v. One Hundred Lords Highway, LLC, 138 Conn.App. 776, 786, 54 A.3d 232 (2012).   As opposed to requiring dismissal, as noted above, section 46b–115s(b) contemplates that the court may stay the proceedings until the information required by § 46b–115s(a) is provided.   Further, because, as set forth below, the court transfers this case to juvenile court for consolidation with the juvenile court matter where Deborah Fuger is a party, the court finds that failure to name her in the visitation application or affidavit concerning children is not a ground for dismissal of the application.

C. Venue

The defendant also moves to dismiss the visitation application on the ground of improper venue because the minor child is currently the subject of permanent guardianship proceedings in the Waterford Juvenile Court.   The defendant contends that the plaintiff is a party to the Waterford action and has filed pleadings in that matter with regard to visitation with the minor child.   In fact, in plaintiff's “Objection to Motion for Permanent Legal Guardianship” filed February 23, 2013 in the juvenile court matter in Waterford, the plaintiff objects to a permanent transfer of guardianship of the minor child to the defendant and Deborah Fuger, and states that the plaintiff seeks visitation with the minor child.

“Venue ․ concerns only the place where the case may be tried, and venue requirements are created for the convenience of the parties.”  Haigh v. Haigh, 50 Conn.App. 456, 465, 717 A.2d 837 (1998).  “[V]enue is a matter that goes to process rather than substantive rights ․” (Internal quotation marks omitted.)  Id., 466.   Thus, even if venue is improper, a motion to dismiss may be denied as General Statutes § 51–351 provides that “[n]o cause shall fail on the ground that it has been made returnable to an improper location.”   See Lasky v. Pivnick, 46 Conn.Sup. 539, 543, 759 A.2d 560 [27 Conn. L. Rptr. 279] (2000).  “By enacting [General Statutes] § 51–351, the legislature intended to authorize the transfer of cases ․ and to provide the remedy of transfer rather than dismissal ․ Therefore, improper venue would only be grounds to transfer the matter, and not grounds for a motion to dismiss.”   (Citations omitted;  internal quotation marks omitted) Id.

The “Protocol for Efficient and Consistent Handling of Matters Where Family and Juvenile Courts have Concurrent Jurisdiction” provides that “[a]ny motion seeking visitation from a custodian or guardian appointed by the juvenile court shall be heard in family court unless the juvenile court specifically indicated intent to retain jurisdiction of visitation issues at the time it granted custody or guardianship.”   See In re Mikas M., Superior Court, judicial district of Hartford, Docket No. CP 10 013378A (March 4, 2013, Burgdorff, J.).   Here, the defendant has temporary guardianship and, as represented by the parties, the guardianship matter is currently pending and scheduled for trial in juvenile court in July 2013.   Certainly, the New London Family Court could enter visitation orders regardless of the permanent guardianship issues pending in the juvenile court.   However, it would not be an efficient use of judicial resources to have the visitation action heard separately in this court while the hearing on guardianship was occurring in another court.

In light of the fact that there is an action pending in the Waterford Juvenile Court concerning the permanent guardianship of the minor child, the most effective use of judicial resources would be to have the visitation matter consolidated with the guardianship issue to be heard in the juvenile court.   See Savage v. Aronson, 214 Conn. 256, 262, 571 A.2d 696 (1990) (Superior Court judges assigned to each division are authorized under Practice Book § 12–1 to transfer cases to different court locations);  Practice Book § 12–1 (“[a]ny cause, or the trial of any issue therein, may be transferred from a judicial district court location to any other judicial district court location or to any geographical area court location, or from a geographical area court location to any other geographical area court location or to any judicial district court location, by order of a judicial authority (1) upon its own motion or upon the granting of a motion of any of the parties, or (2) upon written agreement of the parties filed with the court”).

For the foregoing reasons, the defendant's motion to dismiss the visitation application is hereby denied and that application is transferred to Waterford Juvenile Court and consolidated with the pending motion for permanent legal guardianship in In Re:  Shya Peckham, Superior Court for Juvenile Matters, judicial district of Waterford, Docket No. CP 09 012028.   The request for sanctions is also hereby denied.

It is so Ordered this 26th day of June 2013.

Jongbloed, J.


1.  FN1. “Parties are considered indispensable when they not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such condition that its final [disposition] may be ․ inconsistent with equity and good conscience ․ Indispensable parties must be joined because due process principles make it essential that [such parties] be given notice and an opportunity to protect [their] interests by making [them] a party to the [action].”  (Internal quotation marks omitted.)  Kosiorek v. Smigelski, 138 Conn.App. 695, 705, 54 A.3d 564 (2012), 308 Conn. 901, 60 A.3d 287 (2013).

Jongbloed, Barbara Bailey, J.

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