Annmarie Sargent v. John S. Sargent (2011)

MEMORANDUM OF DECISION REGARDING DEFENDANT'S MOTION TO DISMISS

FACTUAL AND PROCEDURAL BACKGROUND

A review of the record reveals that this matter was commenced by the wife on February 3, 2011.   The husband had filed an action for dissolution in Vermont on December 15, 2010 which is presently pending.   The parties were married in Connecticut in 1998 and resided in Connecticut until approximately 1999 when they relocated to Vermont.   One child, Dakota Sargent, was born March 13, 2005.   The wife relocated to Connecticut on August 14, 2010.

On February 10, 2011, the Vermont court granted temporary, supervised visitation to the husband in Connecticut and ordered a medical evaluation of the child in Connecticut.   The child is enrolled in pre-school in Connecticut.   On February 25, 2011, the child's preschool teacher, a mandated reporter, filed a complaint of suspected sexual abuse with the Connecticut Department of Children and Families which has an ongoing investigation regarding allegations of sexual abuse of the child by the father.   The child has a treating pediatrician in Connecticut.   The child has a treating therapist in Connecticut who reported that “sexual abuse cannot be ruled out yet.”   The therapy is continuing.   The child is undergoing a psychological evaluation by a Connecticut psychologist who has conducted seven visits thus far.   All of the wife's family resides in the state of Connecticut and with the exception of one sibling, all of the husband's family resides in Connecticut.   The father is not seeking custody of the child but only visitation rights.

This court held a hearing pursuant to the defendant's motion to dismiss on April 26, 2011.   Both parties were present and represented by counsel.   Neither party offered testimony but both parties had filed affidavits and both counsel argued their respective positions.   Neither party contested the facts as argued by the other and neither party offered testimony.   Thereafter, this court conducted a telephonic conference regarding the issue of overlapping jurisdiction with the Honorable Robert Bent, State of Vermont, Family Division.

Whether or not this court assumes jurisdiction over the issue of custody and visitation of the child is controlled by the Connecticut General Statutes § 46b–115 et seq.  (UCCJEA).  Both states have a legitimate basis for exercising jurisdiction.   Vermont was the home state of the child until August 20, 2010 and Connecticut is the current home state of the child.   Moreover, since the mother appears to have relocated permanently to the state of Connecticut and the father is not seeking custody but only visitation, Connecticut will be the home state of the child in the future.   This court concludes, and the Vermont court agrees, that Connecticut is the more convenient forum for purposes of custody and visitation.   The Vermont court has indicated that it will continue to retain jurisdiction only with respect to any financial issues and over the divorce itself.

In determining the question of whether Connecticut is or is not the most convenient forum, there is some question as to whether or not this court must conduct an evidentiary hearing.   The case of Temlock v. Temlock, 95 Conn.App. 505 (2006), held that the court erred in dismissing the Connecticut action and concluding that Connecticut was an inconvenient forum without having held an evidentiary hearing.   In the instant case, this court is being asked to determine whether Connecticut is the most convenient forum.   Moreover, the parties appeared, with counsel at a hearing and had the opportunity to present evidence.   Instead, they chose to rely on oral arguments and written briefs together with affidavits.

Whether or not the trial court may rely, in part, on the uncontroverted representations of counsel in making findings of fact was considered in Gillespie v. Jenkins, 127 Conn.App. 228 (2011).   In that case, the court had before it the uncontested statements of counsel, apparently agreed upon by both parties.   Under the specific facts of that case, the court properly relied on the representations made by counsel, which were not disputed in any way and which were, in part, supported by reference to the court's file.   In a footnote, the Appellate Court observed:  “Ordinarily, statements of counsel are not evidence and may not provide support for elements which are required to be proved.   See, State v. Santangelo, 205 Conn. 578, 585, 534 A.2d 1175 (1987).   In some situations, however, courts may rely on uncontested and undisputed statements of counsel in resolving problems presented to them;  see, e.g., State v. Chambers, 296 Conn. 397, 419, 994 A.2d 1248 (2010);  especially when, as here, the information is corroborated by the court's personal observation and the court file.” fn.1.

Thus, this court determines that an evidentiary hearing is not necessary.

CONCLUSION

For the foregoing reasons, this court concludes that it has jurisdiction over the issues of custody and visitation regarding the minor child.   This court will defer to the Vermont court with regard to financial issues and the divorce itself in the event they are subject to dispute.

Shluger, J.

Shluger, Kenneth L., J.