Victoria Kolen v. Valeriy Los (2013)

MEMORANDUM OF DECISION RE PLAINTIFF'S APPLICATION FOR DECLARATORY JUDGMENT

Procedural and Factual History

The court makes the following findings of fact and conclusions of law.

On or about July 12, 2012, the plaintiff in the above captioned action filed an application seeking a declaratory judgment regarding the validity of her marriage to the defendant.   On June 24, 2013 the court convened and concluded an evidentiary hearing.   The plaintiff was represented by counsel and the defendant was self-represented.   Both parties testified and the court has reviewed the testimony elicited at trial, the exhibits and the plaintiff's attorney's memorandum of law.

The plaintiff has been a U.S. citizen since January 18, 2002.   She met the defendant, (who is not a U.S. citizen and who has resided in the United States since the early 2000s), in Orlando, Florida in December of 2005.   The parties either returned to Connecticut or came to Connecticut after meeting in Florida and eventually intermarried in Woodbridge, Ct. on December 25, 2006.   (Plaintiff's exhibit # 2.)   Prior to their December 25, 2006 marriage, the defendant had disclosed to the plaintiff that he had married Oksana Borysivna Los in the Ukraine and that he and his first wife were granted a Ukranian divorce on September 16, 2002.¹  (Plaintiff's exhibit 3.) The September 16th, 2002 Ukranian divorce was registered in the Ukraine on April 20, 2006.   (Plaintiff's exhibit 4.) Said registration was sought and obtained by Oksana Los for purposes of her remarriage.²

Subsequent to the plaintiff's marriage to the defendant in 2006, and on behalf of the defendant, the plaintiff filed an “Adjustment of Status” (I–131 form) with Immigration and Customs Enforcement Agency.  (ICE.) The parties are seeking at least a temporary status for the defendant with the hope of him acquiring a permanent residency status.   The defendant was summoned and appeared at an ICE hearing in Hartford.   According to the parties, ICE concluded because the defendant's Ukranian divorce was granted when neither the defendant nor his first wife were a domiciliary of the Ukraine,³ pursuant to Litvaitis v. Litvaitis, 162 Conn. 540 (1972), the divorce could not be recognized and therefore the parties' 2006 marriage was invalid.   Consequently ICE denied the adjustment of status request.⁴

Legal Analysis

“A plaintiff may seek a declaratory judgment ․ when there is ‘an issue in dispute or an uncertainty of legal relations ․ between the parties ․ [T]here must appear a sufficient practical need for [a] determination ․ in the light of the particular circumstances involved in each case.’ (citations omitted) ․” Coscina v. Coscina, 24 Conn.App. 190, 192 (1991).   In the present case the plaintiff credibly testified that she and the defendant did not meet until three years after his 2002 Ukranian divorce.   Relying on the defendant's representations as to his divorce status and her personal review of exhibit 3 and exhibit 4, the plaintiff justly concluded the defendant was free to marry in 2006.   The plaintiff credibly testified that had she had any doubt about the defendant's eligibility to remarry she would not have proceeded with the December 25, 2006 wedding.

Moreover, the Connecticut appellate decision of Bruneau v. Bruneau, 3 Conn.App. 453 (1985), supports the plaintiff's application for a declaratory judgment.  Bruneau recognizes the precedent set forth in Litvaitis v. Litvaitis, 162 Conn. 540 (1972), but carves out a ‘practical recognition’ concept.

The concept of “practical” recognition of a divorce decree rendered in a foreign nation where neither spouse is domiciled has been recognized by a number of courts.  [Citations omitted.]  “[P]ractical recognition may be accorded such decrees by estoppel, laches, unclean hands or similar equitable doctrine under which the party attacking the decree may be effectively barred from securing a judgment of invalidity.”   Annot., 13 A.L.R.3d 1419, 1452.   Thus, a party may be precluded from attacking a foreign divorce decree if such an attack would be inequitable under the circumstances.  [Citation omitted.]   Moreover, in a case involving a Mexican divorce, our Supreme Court has recently recognized that “out-of-state divorces are [now] both less likely and less opprobrious,” and that, therefore, such divorces should not lightly be overturned where “the parties had intended to channel the dissolution of their marriage in a legitimate rather than in an illegitimate fashion.”  [Citations omitted.]

Bruneau at 456–57.

Given the factual findings of this case this court hereby finds that the defendant's 2002 Ukranian divorce was legitimately pursued and obtained and his reliance on its validity justified.   Similarly, this court also finds the parties' December 25, 2006 marriage in Woodbridge, Ct. was and is a valid marriage and hereby grants the plaintiff's application for a declaratory judgment.

Bernadette Conway, Judge

FOOTNOTES

FN1. The court credits the plaintiff's testimony that she personally reviewed exhibit 3 and 4 prior to marrying the defendant.   She credibly testified she reads Russian and therefore she could substantively comprehend what was stated in exhibits 3 and 4..  FN1. The court credits the plaintiff's testimony that she personally reviewed exhibit 3 and 4 prior to marrying the defendant.   She credibly testified she reads Russian and therefore she could substantively comprehend what was stated in exhibits 3 and 4.

FN2. Exactly when, where and who Oksana Borysivna Los married is unknown, except that the defendant credibly testified Oksana Los remarried in Connecticut..  FN2. Exactly when, where and who Oksana Borysivna Los married is unknown, except that the defendant credibly testified Oksana Los remarried in Connecticut.

FN3. Both the defendant and his first wife had left the Ukraine and had come to the U.S..  FN3. Both the defendant and his first wife had left the Ukraine and had come to the U.S.

FN4. The application was either denied or not accepted and it may have been an application for a temporary change in status;  said distinctions may or may not be meaningful.   It is noteworthy that the defendant required the services of a court supplied Russian interpreter during the family court hearing.   The plaintiff testified in English and she credibly testified she could read and understand Russian.   At times during the court hearing she struggled with questions and answers in English.   Any ambiguity regarding whether the application for adjustment in status was a temporary application and whether it was denied or not accepted appeared solely due to linguistic nuances..  FN4. The application was either denied or not accepted and it may have been an application for a temporary change in status;  said distinctions may or may not be meaningful.   It is noteworthy that the defendant required the services of a court supplied Russian interpreter during the family court hearing.   The plaintiff testified in English and she credibly testified she could read and understand Russian.   At times during the court hearing she struggled with questions and answers in English.   Any ambiguity regarding whether the application for adjustment in status was a temporary application and whether it was denied or not accepted appeared solely due to linguistic nuances.

Conway, Bernadette, J.