De Almeida-Kennedy v. Kennedy, 207 Conn. App. 244 (2021) (UCCJEA & Continuing Exclusive Jurisdiction)
Officially released September 7, 2021
In Short: Continuing exclusive Jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) must be continuing. If all parties and children move out of the state, the state does not recover exclusive continuing jurisdiction later if one parent returns to the state. The court can lose subject matter jurisdiction over UCCJEA issues and retain jurisdiction over other issues not covered by the UCCJEA.
The long and winding background: The parties were divorced in 2010 by separation agreement, which provided Wife with legal custody of the two minor children, Husband with supervised visits, and that Husband would pay unallocated alimony and child support. The Judgment was modified by agreement in 2014 to provide a reduction in Husband’s financial obligations and joint legal custody with primary physical custody to Wife. In 2015 Husband sought a further reduction in his financial obligations, which the trial court denied, and which denial was affirmed in prior appeal. In 2016 the trial court appointed a guardian ad litem (“GAL”) for the minor children.
On August 30, 2017, Wife filed a motion for contempt which was scheduled for a hearing on November 8, 2017. Prior to that hearing, Husband moved to Florida. At the November 8, 2017 hearing, the trial court found Husband in contempt and suspended his unsupervised visitation rights. Husband has not seen the children in person since November 8, 2017.
In April, 2018, Wife and the children relocated to Tennessee. Husband then filed motions in April and May including a motion for reduction of his unallocated support obligations, a motion to modify his visitation order, and a motion for an ex parte order of custody, which ex parte request was denied.
On November 7, 2018, Wife filed a motion to dismiss Husband’s pending motions for lack of subject matter jurisdiction under the UCCJEA, as she had resided in Tennessee for more than six months and neither party nor the children resided in Connecticut. Husband filed another motion for ex parte order which was granted, with a hearing to be held within fourteen days.
On December 11, 2018, the trial court held a hearing on the ex parte motion at which Wife’s counsel, Husband, and the GAL were present. The GAL apprised the court that Husband’s motion for ex parte relief contained “misleading, incorrect, incomplete as well as false statements.” The trial court ordered all existing orders regarding custody of the minor children stayed until Wife’s motion to dismiss for lack of subject matter jurisdiction was resolved.
On May 1, 2019, the trial court held a hearing on Wife’s motion to dismiss. Wife was unable to travel to be present but submitted an affidavit in support of her motion. Husband was present. Wife’s affidavit indicated she and the children had lived in Tennessee for at least seven months as of November 7, 2018, and that Husband had lived for a year in Florida before returning to Connecticut in October 2018. Wife’s affidavit indicated that she lacked the means to travel for court or for an attorney. Husband testified that he returned to Connecticut from Florida in October of 2018, and argued that Wife’s dates of residence were inconsistent and that Wife travelled out of state.
The trial court found that “all parties no longer lived in [Connecticut] at the time of the filing of the motion to dismiss on November 7, 2018.” The trial court concluded it did not have exclusive continuing jurisdiction under § 46b-115l(a)(1) of the UCCJEA, and further expressly declined to exercise jurisdiction under the basis of inconvenient forum. The trial court ordered that the ex parte order be stayed upon the condition that a proceeding be promptly commenced in Tennessee.
Husband appealed the judgment and filed a motion to reargue. Husband’s motion for modification of alimony, support and visitation remained pending. The trial court then stayed consideration of that motion until the motion to reargue was resolved. Husband filed an amended appeal of that stay order.
The trial court issued a memorandum of decision on Husband’s motion to reargue in which it abandoned its ruling of inconvenient forum in light of its decision that it lacked exclusive continuing jurisdiction. The trial court further amended its ruling to vacate the stay and dismiss the custody proceedings. Finally, the trial court entered an order dismissing two additional pending motions filed by Husband. Husband amended his appeal to challenge the ruling on his motion to reargue.
Husband’s first claim on appeal was that the trial court lacked a proper basis on which to grant the motion to dismiss, claiming Wife “did not introduce any admissible evidence as to her residence, the length of time at the residence, the location of the children, nor [her] financial circumstances.” The Appellate Court rejected this claim upon plenary review. It found that Wife introduced such evidence via her sworn affidavit filed with her motion to dismiss as prescribed by the Practice Book.
Husband’s second claim on appeal was that the trial court abused its discretion in staying enforcement of the emergency ex parte custody order. The Appellate Court held that, pursuant to Practice Book § 61-14, the sole remedy for review on a stay of execution is by motion for review under Practice Book § 66-6, and such issues cannot be raised on direct appeal. As Husband failed to file a timely motion for review of the stay, his claim is unreviewable on appeal.
Husband’s third claim on appeal was that the trial court improperly concluded that it did not have exclusive continuing jurisdiction pursuant to § 46b-115l(a)(1) of the UCCJEA. The Appellate Court applied plenary review to this issue of subject matter jurisdiction. The Appellate Court held that, pursuant to the UCCJEA, continuing exclusive jurisdiction ceases when the child and all persons acting as parents leave the state. The UCCJEA pertains to continuing jurisdiction, not interrupted or intermittent jurisdiction, and Husband provided no authority to support the contention that his return to Connecticut reinstated jurisdiction.
Husband’s fourth claim on appeal was that the trial court improperly dismissed certain motions unrelated to the issue of child custody or visitation. The Appellate Court found that the UCCJEA is limited in scope, concerning only issues of custody or visitation. Husband’s motion to modify the unallocated financial orders, his motion for a Strobel order (to preclude Wife from filing further motions without leave of the Court), his motion to remove the guardian ad litem, and his motion to compel compliance with discovery were beyond the scope of the UCCJEA, and therefore improperly dismissed for lack of jurisdiction under that act.
Husband’s fifth claim on appeal was that the court abused its discretion in deferring consideration of his motion to modify financial orders and visitations orders. The Appellate Court held that the trial court was correct to seek to resolve issues of subject matter jurisdiction immediately upon the issue being raised, and within its discretion to defer consideration of other issues while addressing subject matter jurisdiction.
The judgment was reversed only with respect to the dismissal of Husband’s motions which were not within the scope of the UCCJEA and remanded for further proceedings as to those motions only.
