Chrystal L. Barcomb v. Dean A. Barcomb (2014)

MEMORANDUM OF DECISION

This matter is before the court on the plaintiff's motion to dismiss (No. 233.00) the defendant's postjudgment motion for modification (No. 228.00) wherein the defendant seeks a modification of the current custody orders to change the primary residence of the parties' two minor children from West Virginia to Connecticut.   The minor children have resided continuously in West Virginia with the plaintiff, their mother, since 2008.

The plaintiff claims that pursuant to the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA), Gen.Stat. §§ 46b–115 et seq., the court lacks subject matter jurisdiction over the defendant's motion because the parties contractually agreed in 2008 that Connecticut's jurisdiction over custody issues would expire in one year.   Alternatively, the plaintiff claims that this court should decline jurisdiction under the UCCJEA because Connecticut is an inconvenient forum and West Virginia provides a more appropriate forum to resolve the pending custody dispute.   The plaintiff filed a memorandum of law and affidavit in support of her motion.¹

The plaintiff's motion was heard on short calendar on October 3, 2013.   The defendant orally objected to the motion at the hearing but did not file a written response.   At the hearing, the defendant asserted that Connecticut has continuing jurisdiction over this matter because the plaintiff has litigated issues of custody and visitation in Connecticut since the parties' divorce in 2005 and that West Virginia is not a more convenient forum in which to litigate the issue of custody.   Having reviewed the pleadings and the plaintiff's affidavit and having considered the testimony of the defendant and the parties' arguments at short calendar, the court finds as follows.

I

FACTS

The parties' marriage was dissolved by the court in 2005.   The divorce judgment incorporated by reference the divorce agreement entered by the parties.   The agreement provided, inter alia, that the parties would share joint legal custody of their minor children, Gabrielle L. Barcomb, born January 21, 1999, and Jacob A. Barcomb, born May 3, 2002, that the children would reside primarily with the plaintiff and that the defendant would have visitation rights.   Over the next three years, the visitation schedule was frequently revised by agreement of the parties and order of the court.

In 2008, the parties entered into an agreement that provided that the plaintiff may move to West Virginia with the children.   The agreement, which was approved by the court, also provided that the parties would continue to share joint legal custody of the children, that the defendant would have visitation rights, including visitation in Connecticut, and that “Connecticut will maintain jurisdiction of the case for one year.”

The plaintiff and children moved to West Virginia in October 2008 and continue to reside there.   The defendant resides in Connecticut.   Following the relocation, numerous motions for modification and contempt concerning custody and visitation were filed in this action by both parties.   In addition, revised parenting plans were submitted to and approved by the court.   At the defendant's request a Guardian Ad Litem (GAL) was appointed in July 2009.   The GAL was permitted to withdraw from the case in August 2010, but was reappointed in December 2011.   In September 2012, the court approved the GAL's proposed orders concerning the parties' parenting time with the minor children through 2013.²  The GAL's involvement in the case concluded with the approval of her proposed orders.   The next pleading filed in the case was the defendant's May 2013 motion for modification (No. 228.00) seeking to change the minor children's primary residence from West Virginia to Connecticut.   Additional facts will be recited as necessary in this decision.

II

DISCUSSION

“[A] motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2012).

“Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.”  St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).  “[T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time.   (Internal quotation marks omitted.)  New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 511, 518, 970 A.2d 583 (2009).  “[T]he question of subject matter jurisdiction is a question of law ․ and, once raised, either by a party or by the court itself, the question must be answered before the court may decide the case.”  (Citation omitted;  internal quotation marks omitted.)  Batte–Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007).

“[T]he [movant] bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ․ clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.”  (Internal quotation marks omitted.)  Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413–14, 35 A.3d 188 (2012).  “[I]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”   (Internal quotation marks omitted.)  Keller v. Beckenstein, 305 Conn. 523, 531, 46 A.3d 102, 107 (2012).

A

Jurisdiction under the UCCJEA

“The Superior Court's jurisdiction to modify an order regarding visitation of a minor child is conferred and limited by statute.”  Kioukis v. Kioukis, 185 Conn. 249, 251, 440 A.2d 894 (1981).  General Statutes § 46b–56(a) provides, in pertinent part, that “[i]n any controversy before the Superior Court as to the custody or care of minor children ․ the court may make or modify any proper order regarding the custody, care, education, visitation and support of the children if it has jurisdiction under the provisions of [the UCCJEA].”

The UCCJEA governs the court's ability to consider and rule upon custodial issues involving minor children.³  As a preliminary matter, a trial court is always required to determine whether it has jurisdiction to make a custody determination under the UCCJEA.   See Scott v. Somers, 97 Conn.App. 46, 903 A.2d 663 (2006).   This inquiry pertains to the subject matter jurisdiction of the court.  In re DeLeon J., 290 Conn. 371, 376, 963 A.2d 53 (2009).

The court's jurisdiction over initial child custody determinations is governed by Gen.Stat. § 46b–115k(a) whereas the court's exclusive, continuing jurisdiction over such determinations is governed by Gen.Stat. § 46b–115l.   “[U]nder the UCCJEA, if the issue is modification, the initial inquiry is not what state is presently the child's home state, but whether the original decree state has continuing jurisdiction.”   A. Rutkin, S. Oldham & K. Hogan, 8 Connecticut Practice Series:  Family Law and Practice (3d Ed.2010) § 40.10, p. 450.   The motion presently before the court challenges the court's exclusive, continuing subject matter jurisdiction to modify its prior custody orders.

The UCCJEA allows a Connecticut court to maintain exclusive, continuing jurisdiction over child custody determinations until one of the following enumerated events under § 46b–115l(a) occurs:  “(1) A court of this state or a court of another state determines that the child, the child's parents and any person acting as a parent do not presently reside in this state;  or (2) a court of this state determines that (A) this state is not the home state of the child, (B) a parent or a person acting as a parent continues to reside in this state but the child no longer has a significant relationship with such parent or person, and (C) substantial evidence is no longer available in this state concerning the child's care, protection, training and personal relationships.”  (Emphasis added.)

In the present case, the parties do not dispute that the defendant presently resides in Connecticut.   Thus, subpart (1) of 46b–115l(a) does not apply, and this court retains exclusive, continuing jurisdiction over any child custody determination unless the court determines under subpart (2) of the statute that (i) Connecticut is not the home state of the minor children, (ii) that the children no longer have a significant relationship with the defendant even though the defendant continues to reside in this state, and (iii) that this state no longer has substantial evidence available concerning the children's care, protection, training and personal relationships.   All three prongs of § 46b–115l(a)(2) must be satisfied in order for the court to find that it no longer has continuing, exclusive jurisdiction.

As for the first prong of the required statutory analysis, the court finds that Connecticut is not the “home state” of the minor children as that term is defined by Gen.Stat. § 46b–115a(7).   As noted, supra, the children have resided continuously with their mother in West Virginia since 2008.   Gen.Stat. § 46b–115a(7) defines “home state” as “the state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.”   The defendant filed his motion to modify or “commenced” this child custody proceeding in May 2013, more than four and a half years after the plaintiff and minor children moved to West Virginia.   Consequently, Connecticut is not the “home state” of the minor children and the first prong of Gen.Stat. § 46b–115l(a)(2) has been met.   See Kioukis v. Kioukis, supra, 185 Conn. 256–25 (concluding under the Uniform Child Custody Jurisdiction Act (UCCJA), the precursor to the UCCJEA, that the term “proceeding” refers to the modification action, and not to the original complaint seeking a dissolution of the marriage, reasoning:  “[t]o hold that ‘the proceeding’ refers to the original dissolution action would confer perpetual jurisdiction over matters of custody to the courts of the state which granted the dissolution, regardless of whether the parties or child had any further connection with that state.”  (Citation omitted.)).

The court cannot, however, find that the second and third prongs of the jurisdictional analysis required by Gen.Stat. § 46b–1151(a)(2) have been satisfied.   The plaintiff does not claim or offer any evidence to prove that the minor children no longer have a significant relationship with the defendant or that Connecticut no longer has substantial evidence available concerning the children's care, protection, training and personal relationships.   Absent any assertion or proof by the plaintiff on these issues, the court finds that the prerequisites to the expiration of its exclusive, continuing jurisdiction under subpart (2) of § 46b–115l(a) have not been met.   Accordingly, the court finds that it retains exclusive, continuing jurisdiction over the child custody issues presently in dispute in this action.   Accord McNamara v. McNamara, Superior Court, judicial district of Tolland, Docket No. FA–97–0064781–S (January 20, 2006, Swords, J.) (“Although the plaintiff argues that Connecticut is not the home state of the children because they have lived in Michigan with her since June 2004, she does not argue that the children do not have a relationship with the defendant and that there is no substantial evidence in this state [regarding the children's care, protection, training and personal relationships].   Thus, this court retains exclusive continuing jurisdiction of this matter and the motion to dismiss must be denied.”).

The plaintiff contends that Connecticut no longer has jurisdiction to make a custody determination in this action because the parties contractually agreed that Connecticut would only retain jurisdiction over custody issues for one year.   The September 2008 agreement provides as follows:  “The parents agree that the mother may move to West Virginia with the children.   The parents agree that Connecticut will maintain jurisdiction of the case for one year.   They will share joint legal custody, primary residence with mother.”   For the reasons stated below, the court finds that the parties' September 2008 agreement neither divests this court of its continuing, exclusive subject matter jurisdiction nor confers subject matter jurisdiction over custody disputes on the West Virginia courts.

“It is a well-established principle, based upon considerations of public policy, that parties cannot by consent confer jurisdiction upon courts where the law has not given it or take it away where the law has given it.   Parker, Peebles & Knox v. El Saieh, 107 Conn. 545, 557, 141 A. 884 (1928).   See also 20 Am.Jur.2d 403, Courts § 99 (1995) (‘In general, the jurisdiction of the courts is a public matter that cannot be affected by a private agreement, and the jurisdiction of a court can neither be acquired nor lost as a result of an agreement of the parties').”   Saxe v. Anderson Kill Olick & Oshinsky, Superior Court, judicial district of New Haven, Docket No. CV 96 0385479 (July 23, 1996, Meadow, S.T.R.) (17 Conn. L. Rptr. 386).   Simply put, “[s]ubject matter jurisdiction, unlike jurisdiction of the person, cannot be created through consent or waiver.”  (Citations omitted.)  Gary v. Department of Correction, 68 Conn.App. 590, 596, 792 A.2d 874 (2002).

Indeed, if the converse was true, and parties were allowed to consent to jurisdiction in any forum, the jurisdictional provisions of the UCCJEA would be rendered meaningless.   Accord Lord v. Lord, Superior Court, judicial district of Fairfield, Docket No. CV–01–0380279–S (August 20, 2002, Gallagher, J.) (33 Conn. L. Rptr. 88, 90).   Both Gen.Stat. § 46b–115k governing initial child custody jurisdiction and § 46b–115l governing continuing jurisdiction over child custody determinations provide the court with the specific mechanism through which it determines whether it has subject matter jurisdiction over a child custody dispute.   Neither statute directs the court to take into consideration any agreement of the parties when making its jurisdictional determination.   And while Gen.Stat. § 46b–115q(b)(5) (the UCCJEA's inconvenient forum provision) does allow consideration of an agreement between the parties regarding jurisdiction for purposes of determining whether a court of this state should decline to exercise its jurisdiction in favor of another forum, the type of jurisdiction to which the parties may agree—personal or subject matter—is not specified in the statute.   This court finds, consistent with other Connecticut courts, that the term “jurisdiction” as used in § 46b–115q(b)(5), refers to personal jurisdiction, not subject matter jurisdiction.   See Lord v. Lord, supra, and cases cited therein.

B

Inconvenient Forum under the UCCJEA

Although this court concludes that it has jurisdiction to decide the custody issue presented by the defendant's motion for modification, it must still consider the plaintiff's alternative claim that this court should decline to exercise such jurisdiction because Connecticut is an inconvenient forum in which to litigate the defendant's custodial modification motion.  General Statutes § 46b–115q(a) provides in relevant part that a court may decline jurisdiction “if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.”   Connecticut courts agree that “[t]he determination of whether the court should decline to exercise jurisdiction under the statute is discretionary.”   (Internal quotation marks omitted.)   Dillon v. Dillon, Superior Court, judicial district of Ansonia–Milford, Docket No. FA020078019S (June 22, 2004, Petroni, J.T.R.) (37 Conn. L. Rptr. 291, 293), and cases cited therein.

“In determining whether a court of this state is an inconvenient forum and that it is more appropriate for a court of another state to exercise jurisdiction, the court shall allow the parties to submit information and shall consider all relevant factors including:  (1) Whether family violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;  (2) the length of time the child has resided outside this state;  (3) the distance between the court in this state and the court in the state that would assume jurisdiction;  (4) the relative financial circumstances of the parties;  (5) any agreement of the parties as to which state should assume jurisdiction;  (6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;  (7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence;  and (8) the familiarity of the court of each state with the facts and issues in the pending litigation.”  Gen.Stat. § 46b–115q(b).

A consideration of these factors dictates that this court should decline jurisdiction in favor of the West Virginia courts.   The first statutory factor does not apply as there is no evidence that family violence occurred or is likely to occur in the future.   The second factor weighs heavily in favor of declining jurisdiction as the minor children have resided in West Virginia for over five years.   The third factor, the distance between the Connecticut and West Virginia courts, does not compel the conclusion that Connecticut is any more or less inconvenient than West Virginia for purposes of resolving the current custody dispute.

The fourth factor, the relative financial circumstances of the parties, weighs in favor of this court declining jurisdiction.   While it is a hardship for either party to travel to the other party's home state, the defendant must make arrangements for the care of the minor children if she is required to travel to Connecticut and she will incur additional travel costs if the minor children are required to come to Connecticut for evaluations or court appearances.   The court notes further that the current parenting plan contemplates that the defendant will travel to West Virginia to visit the minor children approximately five times a year.   It is feasible that any court proceedings in West Virginia could be coordinated around the defendant's scheduled travel to West Virginia in order to minimize any financial hardship to the defendant.

The fifth factor, the parties' agreement that Connecticut would retain jurisdiction for one year, weighs in favor of this court declining jurisdiction.   While the parties' September 2008 agreement does not expressly provide that West Virginia would have jurisdiction over custodial issues after one year, it can be reasonably inferred from the language of the agreement (although not binding on this court as discussed supra ) that such was their intent.

The sixth factor requires the court to consider the nature and location of the evidence required to resolve the pending litigation, including the testimony of the children.   This factor weighs in favor of this court declining jurisdiction.   The children, daughter Gabby and son Jake, are now 14 and 11 years old, respectively.   Since relocating to West Virginia more than five years ago, they have been continuously enrolled in Martinsburg, West Virginia schools and are presently involved in numerous sports and activities, both at school and in their community.   The children's teachers, coaches, grandparents, extended family and health care providers are all located in West Virginia.   Consequently, the bulk of the evidence required to resolve the pending custody motion lies in West Virginia.

The seventh factor concerns the ability of the court of each state to expeditiously decide the custodial issues and the procedures necessary to present the evidence.   There is no evidence before this court that would suggest that West Virginia could not expeditiously decide the custodial issues presented by the defendant's motion.   However, the children's availability to be interviewed or present testimony in the state in which they currently reside militates in favor of this court declining jurisdiction in favor of West Virginia.

The only factor weighing in favor of this court retaining jurisdiction over this matter is the eighth factor—the familiarity of the court of each state with the facts and issues in the pending litigation.   No custody action is presently pending in West Virginia whereas this case has been pending in Connecticut since 2004.   This court has approved various custody and visitation agreements between the parties and the minor children are familiar with the prior GAL. However, as observed by one Connecticut jurist when evaluating the same issue:  “[n]o issue in this case to date is so complex as to beguile a judge of the state of South Carolina, so this factor does not, in the balance offset the weight of the others.”   Diaz v. Diaz, Superior Court, judicial district of New London at New London, Docket No. KNL FA 06–4006173S (May 27, 2010, Boland, J.).   The same holds true in this case.

Having concluded that Connecticut is an inconvenient forum in which to adjudicate the defendant's motion for modification and that West Virginia is a more appropriate forum, the court must now determine the appropriate relief to be awarded.   The plaintiff requests that the motion to dismiss be granted.   However, dismissal of an action upon a determination that Connecticut is not a convenient forum is not authorized under the UCCJEA.   See Lord v. Lord, Superior Court, judicial district of Fairfield, Docket No. FA–97–0348367–S (September 14, 2001, Sheedy, J.) (“Because the UCCJA provision for dismissal of the Connecticut action when this state determines it is an inconvenient forum (Connecticut General Statutes § 46b–97(e)) was not carried over into the new legislation, the defendant's motion to dismiss is denied”).   Rather, Gen.Stat. § 46b–115q(c) provides for a conditional stay of the child custody proceedings:  “If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.”  (Emphasis added.)  “The issue of inconvenient forum may be raised upon a motion of a party, the guardian ad litem for the child or the attorney for the child, the court's own motion or a request of another court.”  Gen.Stat. § 46b–115q(a).   Accordingly, the court may stay, but not dismiss, the defendant's motion for modification.

III

CONCLUSION

For all the foregoing reasons, the plaintiff's motion to dismiss the defendant's motion for modification is denied but proceedings on the defendant's motion for modification are stayed on the condition that a child custody proceeding be commenced in West Virginia within ninety (90) days from the date of this decision.   If a child custody proceeding is not commenced in West Virginia as provided herein, either party may file a motion with this court seeking that the stay be lifted and that this court consider the defendant's motion for modification on its merits.

(MORGAN, J.)

JUDGE

FOOTNOTES

FN1. The defendant did not object to or dispute the contents of the plaintiff's Affidavit..  FN1. The defendant did not object to or dispute the contents of the plaintiff's Affidavit.

FN2. Pursuant to the court's order, the defendant has parenting time with the minor children in Connecticut as follows:  Thanksgiving break in odd years, Christmas break in even years, every Spring school vacation and the first three weeks of July. The defendant also has additional parenting time with the minor children in West Virginia four weekends per year and one additional summer vacation week..  FN2. Pursuant to the court's order, the defendant has parenting time with the minor children in Connecticut as follows:  Thanksgiving break in odd years, Christmas break in even years, every Spring school vacation and the first three weeks of July. The defendant also has additional parenting time with the minor children in West Virginia four weekends per year and one additional summer vacation week.

FN3. “The purposes of the UCCJEA are to avoid jurisdictional competition and conflict with courts of other states in matters of child custody;  promote cooperation with the courts of other states;  discourage continuing controversies over child custody;  deter abductions;  avoid re-litigation of custody decisions;  and to facilitate the enforcement of custody decrees of other states ․ The UCCJEA addresses inter-jurisdictional issues related to child custody and visitation.”  (Internal quotation marks omitted.)  In re Iliana M., 134 Conn.App. 382, 390, 38 A.3d 130 (2012)..  FN3. “The purposes of the UCCJEA are to avoid jurisdictional competition and conflict with courts of other states in matters of child custody;  promote cooperation with the courts of other states;  discourage continuing controversies over child custody;  deter abductions;  avoid re-litigation of custody decisions;  and to facilitate the enforcement of custody decrees of other states ․ The UCCJEA addresses inter-jurisdictional issues related to child custody and visitation.”  (Internal quotation marks omitted.)  In re Iliana M., 134 Conn.App. 382, 390, 38 A.3d 130 (2012).

Morgan, Lisa K., J.