Isabelle Toundjian v. Patrick Tremblay (2011)

MEMORANDUM OF DECISION

This action came before the court on a motion for contempt (doc. # 's 125.01–.04) filed by the plaintiff and a motion to dismiss (doc. # 126) filed by the defendant who claims the court lacks subject matter jurisdiction to address the contempt motion.

The plaintiff and defendant were divorced by this court (Harrigan, JTR) on January 31, 2008.   At the time of the divorce, the court awarded primary physical custody over the three children born of the marriage to the plaintiff mother.   Because neither of the parties was employed at the time, the parties proposed and the court agreed to address the issue of child support in a somewhat unusual fashion.   As part of the separation agreement (# 120.10) approved by the court and incorporated within the decree, the parties noted the current unemployed status of both parties and agreed that the defendant husband would be obligated to provide child support to the plaintiff mother, but that the obligation of the defendant would not commence immediately.   The obligation would begin on the husband's reemployment, sale of the marital residence or by July 1, 2008, whichever first occurred.   Moreover, the decree did not determine the amount of child support to be paid.

Throughout the separation agreement, it was expressly agreed that the plaintiff and three children would be relocating to Quebec, Canada.   The parties had been married in Canada;  the parenting provisions addressed the particular areas in Quebec where plaintiff and the children would reside, the schools in Quebec which would be attended and visitation rights for Canadian legal holidays.   The separation agreement also specified how the amount of child support would be quantified.   Specifically, the agreement provided:  “The parties agree that the Quebec Superior Court shall have jurisdiction over all parenting issues, including but not limited to issues of child support so long as the children are residing in Quebec.”  (Par. 2.5) They also agreed that “[a]ny order or agreement for child support shall be in conformance with the Federal Child Support Guidelines for the Province of Quebec [and the] Wife shall have the right to have the matter heard in a Quebec court ․”

It is clear to the court that under the separation agreement, the defendant agreed to submit himself to the jurisdiction of the Canadian court for a determination of the amount of his child support obligation and to the application of the Canadian Guidelines.   There is no claim that the Superior Court (Family Division) of The Provence of Quebec, District of Montreal lacks subject matter jurisdiction over claims for family support or that it did not in fact enter its decision as to the amount of support.   The record shows that defendant was properly served by a Connecticut Marshall with process for the commencement of the foreign proceeding and, despite extensive detail about the lack of notice in other regards, any denial of service or lack of actual notice at commencement of the Quebec proceeding is conspicuously absent from his affidavit.

Plaintiff now seeks findings of contempt on the basis, inter alia, that the unquantified obligation to pay child support was determined in the Quebec proceeding and defendant's failure to pay is a violation of this court's order.   In response, defendant has moved to dismiss the motion on the basis that plaintiff is seeking to enforce a foreign judgment and has not complied with either Conn. Gen.Stat. section 46b–70 or section 52–604.   Specifically, he states that each of these two statutes require a certified copy of the judgment to be filed, which was admittedly not done, and precludes enforcement of judgments obtained by default for failing to appear.   Plaintiff claims she does not seek to proceed under either statute and is not trying to enforce a foreign judgment.   She claims that she is simply seeking to enforce the order of this court.

For the purpose of this motion to dismiss, the parties stipulated through counsel that the Quebec judgment attached to the plaintiff's opposition papers (# 130) is a true and correct copy of the judgment and proceedings in the Quebec court, without waiving defendant's claim of non certification.   They also stipulated to admission and consideration of the defendant's affidavit as to the details of his service and notice.   In short, the parties have attempted to present a purely legal question to the court for decision.

Against this backdrop, the court has carefully reviewed the motion for contempt and the papers presented in support of the motion.   In at least some instances, it does appear to the court that plaintiff may be attempting to enforce the Quebec judgment.   For example, in certain of the papers plaintiff appears to claim contempt by arguing little more than that the Quebec judgment is not satisfied.   However, in several other instances, the plaintiff clearly alleges that defendant had been ordered to do certain things under this court's decree and has failed to do same.   For example, plaintiff alleges defendant was ordered to pay child support by this court, ordered to provide notice of employment, and pay one-half of special expenses, child care expenses and unreimbursed medical expenses.

In this regard, this court's decree, via the separation agreement, addresses these issues.

There is no dispute that this court has the power to enforce its orders and decree.   To this extent, it does appear the motion for contempt is within the jurisdiction of the court.

In light of this analysis, the motion to dismiss is denied.   The court will continue the citation for the motion for Contempt to a date when the motion may be reclaimed and heard.   In entertaining the motion for contempt, the court will keep in mind defendant's authorities and plaintiff's position that she is not attempting to enforce the Quebec Judgment.   In other words, this court will be enforcing its own decree, not that of the Quebec court.   What role, if any, the terms of the Quebec judgment will play in consideration of the motion for contempt must await the hearing on the motion.

BY THE COURT

WENZEL, J.

Wenzel, William, J.