Parisi v. Niblett ( 2020 )

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JASON S. PARISI v. ABBY NIBLETT
(AC 42438)
DiPentima, C. J., and Elgo and Devlin, Js.*
Syllabus
The plaintiff, who had sought to modify child custody orders entered as
part of the judgment of dissolution of his marriage to the defendant,
appealed from the trial court’s dismissal of that motion. The plaintiff and
the defendant had been divorced in Florida. Subsequently, the defendant
moved to Alabama and the plaintiff moved to Connecticut. The parties
rotated custody of the child on a monthly basis. Their settlement agree-
ment provided that once the child reached formal school age, the parties
were to negotiate a time sharing schedule in the best interest of the child.
The parties thereafter each sought to enroll the child in kindergarten,
in both Connecticut and Alabama. The plaintiff filed a petition for modifi-
cation of child custody in Florida, which he subsequently withdrew,
and the defendant also filed a petition for modification in Florida. The
plaintiff then filed a motion to modify child custody in Connecticut. The
trial court conducted a telephone conference with the Florida court to
discuss jurisdiction, and determined that Florida retained jurisdiction,
as the Florida court did not stay its proceedings or relinquish jurisdiction
because there was a custody action pending in Florida at the time the
plaintiff filed his motion to modify in Connecticut. On appeal, the plaintiff
claimed, inter alia, that the trial court erred in concluding that it lacked
subject matter jurisdiction without first conducting an evidentiary hear-
ing. Held:
1. The trial court properly applied the provisions of the Uniform Child
Custody Jurisdiction and Enforcement Act (§ 46b-115 et seq.) to deter-
mine if that court had subject matter jurisdiction to modify the Florida
court’s custody order; contrary to the plaintiff’s argument, the domestica-
tion of a foreign judgment pursuant to statute (§ 46b-70 et seq.) did not
automatically grant subject matter jurisdiction over a foreign judgment,
rather, the UCCJEA expressly and unambiguously required that the trial
court determine if it had subject matter jurisdiction under the UCCJEA
prior to considering the modification of a custody order.
2. The trial court improperly determined that it lacked subject matter jurisdic-
tion because it did not afford the plaintiff an evidentiary hearing, as
there were unresolved issues of fact that could not initially be determined
on appeal, including whether Connecticut was the home state of the
child when the plaintiff filed his motion for modification, whether the
time the child spent in Alabama was considered a temporary absence
from Connecticut, whether Florida was the home state of the child at
the time the defendant’s motion for modification was filed in Florida,
and whether the plaintiff and the child have a significant connection
with Connecticut.
Argued January 23—officially released September 1, 2020
Procedural History
Motion by the plaintiff for modification of child cus-
tody in connection with a foreign judgment of dissolu-
tion, brought to the Superior Court in the judicial dis-
trict of Hartford, where the court, Olear, J., dismissed
the plaintiff’s motion, and the plaintiff appealed to this
court. Reversed; further proceedings.
John F. Morris, for the appellant (plaintiff).
Opinion
DiPENTIMA, C. J. The plaintiff, Jason S. Parisi,
appeals from the judgment of the trial court dismissing
his motion for modification of Florida child custody
orders on jurisdictional grounds. On appeal, the plaintiff
claims that the court improperly (1) failed to conclude
that it had subject matter jurisdiction to modify the
Florida judgment pursuant to General Statutes § 46b-
56 (a), and (2) deferred to the Florida court and deter-
mined that it lacked subject matter jurisdiction regard-
ing the plaintiff’s motion for modification without first
conducting an evidentiary hearing. We do not agree
with the plaintiff’s first claim, but agree with his second
claim.1 Accordingly, we reverse the judgment of the
trial court.
The following facts, as gleaned from the record, and
procedural history are relevant to the plaintiff’s claims
on appeal. In March, 2016, the marriage of the plaintiff
and the defendant, Abby Niblett, was dissolved in a
Florida Circuit Court. The judgment of dissolution
incorporated by reference the parties’ settlement agree-
ment and parenting plan. The settlement agreement
provided that the parties share parental responsibilities
with respect to their minor child. The parenting plan
provided that ‘‘[t]he parents shall have 50/50 parenting
time’’ and specifically provided that ‘‘[t]he parents shall
have month to month time sharing with the father hav-
ing the child in the even months and the mother having
the child in the odd months. . . . Once the child starts
school, the parties shall negotiate to develop a time
sharing schedule that is in the best interest of the child.’’
With respect to modification, the parenting plan pro-
vided that ‘‘[t]he court will revisit the issue of time
sharing when the minor child begins attending formal
kindergarten.’’
The plaintiff filed a ‘‘supplemental petition for modifi-
cation of time sharing’’ in Florida on April 12, 2017.
In that petition, the plaintiff stated that, prior to the
judgment of dissolution, the defendant had moved to
Alabama. The plaintiff sought to be the child’s major
time sharing parent as a result of the child’s having
reached the age to attend formal kindergarten. On July
14, 2017, the defendant moved to dismiss the petition.
On August 9, 2018, the defendant filed an ‘‘emergency
motion for return of the minor child’’ in Florida. In this
motion, the defendant alleged that she had moved to
Warrior, Alabama in July, 2014, and that, since 2015,
both parties continuously conducted parenting time on
a monthly rotating basis, but that the plaintiff interfered
with that schedule by keeping the child for longer than
one month.
In October, 2017, the plaintiff moved to Connecticut.
The plaintiff voluntarily withdrew his petition in Florida
on September 13, 2018. On September 22, 2018, the
defendant filed a petition for modification in Florida.2
On October 9, 2018, the plaintiff filed a postjudgment
motion for modification in Connecticut. In this motion,
the plaintiff alleged that the minor child had attained
school age and that the parties have not been able to
agree on the school that the child should attend or on
new time sharing arrangements. The plaintiff stated that
he had enrolled the child in kindergarten in Newington,
where he resided, and that the defendant attempted to
enroll the child in school in Warrior, Alabama, where
she resided. The plaintiff did not file an affidavit, as
required by Practice Book § 25-57.3 On November 5,
2018, the defendant moved to dismiss the plaintiff’s
motion for modification. In that motion, she noted that
the plaintiff had failed to notify the Connecticut court
regarding the ongoing child custody litigation in Florida,
and argued that Florida retained jurisdiction over the
matter.
On December 14, 2018, the Connecticut court con-
ducted a telephone conference with the Florida court
to discuss jurisdiction.4 Counsel for both parties were
present, as well as the plaintiff himself.5 The Florida
court noted that a child custody case was pending in
Florida. The Florida court explained that it ‘‘had juris-
diction when the initial divorce occurred,’’ but that ‘‘the
parties decided for whatever reason to basically relo-
cate without permission of the Florida court. So in order
for the Florida court to have any jurisdiction, one of
them would need to move back here with that child.
And obviously, they’ve been doing whatever they want
to do, and now, unfortunately, they’ve got a problem,
and coming to the courts to say, we’ve messed up. So,
taking that into account, Florida certainly is not–would
have continuing jurisdiction, however, since the child
is not here, the venue should not be in Florida, and
honestly, it should not be in Connecticut either. The
venue should be in Alabama . . . where this child’s
been for the entire time since the divorce.’’ The Con-
necticut court stated that ‘‘I think since no one is in
Florida, not one parent, and not the child, that . . .
even though I believe you did have jurisdiction, I believe
you had continuing jurisdiction until I think you lost it
when everyone left.’’ The Florida court continued, ‘‘so
we have jurisdiction . . . the problem is this . . .
Florida is not going to hear it. . . . [The plaintiff] needs
to go to Alabama because we’re in a situation where
Florida doesn’t have any of these people. . . . These
two people decided to do whatever they wanted to do,
no matter what the court order said. . . . I assume
what’s going to happen is . . . [the defendant’s] attor-
ney will do a motion to domesticate in Alabama, which
is actually where that child has been for the last three
or four years.’’ The Connecticut court stated that it only
had allegations, and no affidavits regarding the child’s
residence following the divorce. The Florida court
noted that the child would come to Florida while the
plaintiff resided in Florida and the defendant in Ala-
bama, and then the plaintiff moved to Connecticut. The
Florida court reasoned, ‘‘so, right now Florida maintains
the continuing jurisdiction, but . . . unless one of
them, being the mother or father, is going to move back
here to Florida . . . this is going to have to be heard
in Alabama, which is where that child has actually been
. . . because the [plaintiff] decided to vacate the state
of Florida.’’ The plaintiff’s attorney noted that the plain-
tiff had lived in Connecticut for more than one year
and the child lived equally in both Connecticut and
Alabama during that time. The Florida court noted that
the defendant had submitted an affidavit that did not
indicate that. The Florida court stated that ‘‘the fact of
the matter is Florida has continuing jurisdiction.’’ The
Connecticut court stated, ‘‘I agree, until you give it
up.’’ The Florida court stated that it was not giving up
jurisdiction. The Florida court asked, ‘‘would you just
dismiss your jurisdiction or lack of jurisdiction, then
[the defendant’s attorney] will do what needs to be
done?’’ The Connecticut court responded in the affirma-
tive and stated, ‘‘so, you’re keeping jurisdiction. So, I’ll
enter a ruling in our case that due to Florida retaining
jurisdiction, we don’t have any.’’ The Connecticut court
issued an order that day stating that ‘‘Florida shall retain
jurisdiction in this matter and the plaintiff’s motion to
modify . . . is hereby dismissed.’’ This appeal
followed.
Following oral argument before this court, we
ordered the trial court to articulate the factual and
legal basis for its decision that it lacked subject matter
jurisdiction over the plaintiff’s motion for modification.
The court clarified that the defendant was living in
Alabama and that the plaintiff relocated to Connecticut
in violation of the Florida divorce decree and without
the consent of the defendant. The court noted that, at
the time it dismissed the plaintiff’s motion to modify,
a custody action was pending in Florida. The court
determined that the Florida court did not stay its pro-
ceedings or relinquish jurisdiction. The court stated that
it dismissed the plaintiff’s motion to modify pursuant
to General Statutes §§ 46b-115a, 46b-115k, 46b-115l, and
46b-115m, particularly in light of the fact that Florida
had not relinquished jurisdiction.
I
The plaintiff first claims that, because he followed
the statutory procedures for registering the Florida
judgment in this state pursuant to General Statutes
§ 46b-70 et seq., the court was required to conclude that
it had subject matter jurisdiction to modify the Florida
judgment pursuant to § 46b-56 (a). On September 17,
2018, the defendant filed in Connecticut a copy of the
Florida judgment, and certified that the parties had been
divorced in Florida on March 23, 2016, that to the best
of his knowledge the judgment is final and has not been
modified, altered, amended, set aside or vacated, and
that the enforcement of such judgment has not been
stayed or suspended, and that such certificate sets forth
the full name. He further provided the last known
address of the defendant. See General Statutes § 46b-
71.6 He contends that he properly registered the Florida
judgment pursuant to § 46b-71 and he also states that
‘‘[t]here is no claim . . . that he failed to properly
notify the defendant or wait the requisite period before
filing this motion.’’ See General Statutes § 46b-72.7 We
do not agree that, following the filing of a certified
copy of the Florida judgment, the court was required to
conclude that it had subject matter jurisdiction without
first examining the Uniform Child Custody Jurisdiction
and Enforcement Act (UCCJEA), which is codified in
Connecticut at General Statutes § 46b-115 et seq.
Although the plaintiff did not raise this issue in the
trial court, we will nonetheless address it because this
issue implicates subject matter jurisdiction, which can
be raised at any time, including on appeal. See, e.g.,
Gonzalez v. Commissioner of Correction, 107 Conn.
App. 507, 511, 946 A.2d 252, cert. denied, 289 Conn. 902,
957 A.2d 870 (2008). Plenary review is afforded to issues
of subject matter jurisdiction; see, e.g., Temlock v. Tem-
lock, 95 Conn. App. 505, 518, 898 A.2d 209, cert. denied,
279 Conn. 910, 902 A.2d 1070 (2006); and statutory con-
struction. See, e.g., Boisvert v. Gavis, 332 Conn. 115,
141, 210 A.3d 1 (2019).
The procedures for domesticating a foreign matrimo-
nial judgment are established by statute. ‘‘Foreign matri-
monial judgments may be enforced, modified or other-
wise dealt with in Connecticut pursuant to the
provisions of General Statutes §§ 46b-70 through 46b-
75. Section 46b-71 requires the filing of a certified copy
of a foreign matrimonial judgment in the courts of this
state where enforcement is sought and empowers the
courts of this state to treat such a judgment in the same
manner as any like judgment of a court of this state.’’
(Footnote omitted.) Vitale v. Krieger, 47 Conn. App.
146, 148, 702 A.2d 148 (1997). ‘‘[Section] 46b-71 (b)
consigns to the courts of this state the power to enforce,
satisfy, modify, alter, amend, vacate, set aside or sus-
pend a foreign matrimonial judgment that has been
properly filed in a Connecticut court.’’ Mirabal v. Mira-
bal, 30 Conn. App. 821, 825, 622 A.2d 1037 (1993). ‘‘For-
eign matrimonial judgment,’’ as the term is used in Gen-
eral Statutes §§ 46b-70 through 46b-75, includes ‘‘any
judgment, decree or order of a court of any state in the
United States in an action for divorce . . . for the cus-
tody, care, education, visitation, maintenance or sup-
port of children or for alimony, support or the disposi-
tion of property of the parties to an existing or
terminated marriage, in which both parties have entered
an appearance.’’ General Statutes § 46b-70.
Section 46b-70 et seq. establishes the procedures for
domesticating a foreign matrimonial judgment in this
state, and the jurisdiction of a trial court to modify a
foreign child custody order is limited by the UCCJEA.
A trial court is required to determine whether it has
jurisdiction to make a custody determination pursuant
to the UCCJEA. See Scott v. Somers, 97 Conn. App. 46,
50–51, 903 A.2d 663 (2006). According to § 46b-56 (a),
a trial court may make or modify a child custody order
only if it has jurisdiction under the UCCJEA. Section
46b-56 (a) provides in relevant part: ‘‘In 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 jurisdic-
tion under the provisions of chapter 815p [UCCJEA].’’8
The purposes of the UCCJEA coincide with the statu-
tory requirement that a trial court assess its jurisdiction
under the UCCJEA prior to modifying a child custody
order made by another state. ‘‘The purposes of the UCC-
JEA 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 cus-
tody; deter abductions; avoid [relitigation] of custody
decisions; and to facilitate the enforcement of custody
decrees of other states. . . . The UCCJEA addresses
[interjurisdictional] issues related to child custody and
visitation. . . . The UCCJEA is the enabling legislation
for the court’s jurisdiction.’’ (Citations omitted; internal
quotation marks omitted.) In re Iliana M., 134 Conn.
App. 382, 390, 38 A.3d 130 (2012).
Accordingly, § 46b-56 (a) does not automatically
grant subject matter jurisdiction over a properly domes-
ticated foreign child custody judgment but, rather,
expressly and unambiguously requires the trial court
to examine the enabling legislation, the UCCJEA, in
order to determine whether it has subject matter juris-
diction to modify Florida’s child custody order. We con-
clude, therefore, that it was proper for the court to
apply the provisions of the UCCJEA.9
II
The plaintiff claims, alternatively, that the court erred
by deferring to the Florida court and dismissing his
motion for lack of jurisdiction without first conducting
an evidentiary hearing regarding unresolved factual
issues pertaining to jurisdiction. We agree with the
plaintiff that the court should have held an eviden-
tiary hearing.
‘‘A determination regarding a trial court’s subject mat-
ter jurisdiction is a question of law. . . . Subject matter
jurisdiction involves the authority of a court to adjudi-
cate the type of controversy presented by the action
before it. . . . If a court lacks subject matter jurisdic-
tion to hear and determine cases of the general class
to which the proceedings in question belong, it is axiom-
atic that a court also lacks the authority to enter orders
pursuant to such proceedings. . . . We must determine
whether the court had subject matter jurisdiction to
entertain the plaintiff’s [motion to modify]. We are
mindful that [a] court does not truly lack subject matter
jurisdiction if it has competence to entertain the action
before it . . . . [W]here a decision as to whether a
court has subject matter jurisdiction is required, every
presumption favoring jurisdiction should be indulged.’’
(Citations omitted; internal quotation marks omitted.)
Temlock v. Temlock, supra, 95 Conn. App. 518–19.
‘‘[W]here a jurisdictional determination is dependent
on the resolution of a critical factual dispute, it cannot
be decided on a motion to dismiss in the absence of
an evidentiary hearing to establish jurisdictional facts.
. . . [W]hen issues of fact are necessary to the determi-
nation of a court’s jurisdiction . . . due process
requires that a [trial like] hearing be held, in which
an opportunity is provided to present evidence and to
cross-examine adverse witnesses. . . . [I]n some cases
. . . it is necessary to examine the facts of the case to
determine whether it is within a general class that the
court has power to hear. . . . An evidentiary hearing
is necessary because a court cannot make a critical
factual [jurisdictional] finding based on memoranda and
documents submitted by the parties.’’ (Citations omit-
ted; footnote omitted; internal quotation marks omit-
ted.) Conboy v. State, 292 Conn. 642, 652–54, 974 A.2d
669 (2009).
The following discussion regarding the enactment of
the UCCJEA, as described by the Tennessee Court of
Appeals provides background for our analysis. ‘‘The
UCCJEA was designed as a replacement for the Uniform
Child Custody Jurisdiction Act (UCCJA) . . . [which
was] [p]romulgated in 1968 in an effort to bring order
out of the chaos that once marked interstate custody
disputes when the courts of different states claimed
authority to issue contradictory custody orders. . . .
By 1983, all fifty states had enacted some version of
the UCCJA. Unfortunately, state legislatures made sig-
nificant changes to the UCCJA before adopting it, and
. . . [a]s a result, the goal of seamless enforcement of
child custody determinations across state lines
remained unattained. In 1980, Congress added an addi-
tional layer of complexity when it exercised its author-
ity under the [f]ull [f]aith and [c]redit [c]lause [of the
United States constitution] and other constitutional pro-
visions to enact the Parental Kidnapping Prevention
Act of 1980 (PKPA) . . . . [T]he PKPA deviated from
the UCCJA [and] significantly altered the analysis for
modification jurisdiction. . . . The PKPA added the
concept of continuing jurisdiction, 28 U.S.C.A. § 1738A
(c) (2) (E) [and] (d), and provided that once a state
had entered or modified a child custody determination
in compliance with the statute’s jurisdictional require-
ments, its jurisdiction would continue . . . as long as
. . . such [s]tate remains the residence of the child or
of any contestant. . . . The PKPA prohibited courts
from modifying another state’s child custody determina-
tion if the other state had continuing jurisdiction over
the determination and had not declined to exercise it.
28 U.S.C.A. § 1738A (g) [and] (h). Thus, while home
state jurisdiction was at the top of the jurisdictional
hierarchy under the UCCJA, under the PKPA, continu-
ing jurisdiction trumped home state jurisdiction.
‘‘The prioritization of the four basic jurisdictional
tests [of home state jurisdiction, significant connection
jurisdiction, inconvenient forum jurisdiction, and juris-
diction when no other basis for jurisdiction is avail-
able]10 and the addition of the concept of continuing
jurisdiction in the modification context created a gap
between the jurisdictional standards of the UCCJA and
the PKPA. As a result, child custody determinations
made in compliance with the UCCJA were usually, but
not always, entitled to full faith and credit—i.e., enforce-
ment and [nonmodification]—in all fifty states as a mat-
ter of federal law under the PKPA. . . . The differences
between the uniform act and the federal statute
spawned numerous jurisdictional clashes that often
resulted in the creation of conflicting case law as the
courts struggled to parse the fine distinctions between
the jurisdictional requirements of the PKPA and the
various state versions of the UCCJA. . . . Thus, one
of the primary goals of theUCCJEAwas to eliminate the
friction between the jurisdictional analysis of the PKPA
and the uniform act by incorporating clarified versions
of the PKPA’s prioritized [four part] hierarchy for sub-
ject matter jurisdiction and the concept ofcontinuing
jurisdiction. . . . Another primary goal of the UCCJEA
was to sweep away the enormous body of conflicting
decisions that had accreted over the past thirty years
under the UCCJA by streamlining the language and
structure of the underlying uniform statute. Thus, while
the UCCJEAretained the central concepts of the UCCJA
and the PKPA, it substantially revised and clarified both
the statutory text and the official commentary with the
goal of allowing the courts to develop a new and truly
uniform body of decisional law to govern interstate
child custody disputes.’’ (Citations omitted; footnotes
added and omitted; internal quotation marks omitted.)
Staats v. McKinnon, 206 S.W.3d 532, 544–47 (Tenn.
App. 2006), appeal denied, Tennessee Supreme Court
(October 16, 2006).
In order for a Connecticut court to determine if it had
jurisdiction to modify Florida’s initial custody order,
it must refer to § 46b-115m. That section provides in
relevant part that ‘‘a court of this state may not modify a
child custody determination made by a court of another
state unless a court of this state has jurisdiction to
make an initial determination under subdivisions (1) to
(4), inclusive, of subsection (a) of section 46b-115k and
one of the following occurs: (1) The court of the other
state determines that it no longer has exclusive, contin-
uing jurisdiction under a provision substantially similar
to section 46b-115l; (2) a court of another state deter-
mines that a court of this state would be a more conve-
nient forum under a provision substantially similar to
section 46b-115q; or (3) a court of this state or another
state determines that the child, the child’s parents and
any person acting as a parent do not presently reside
in the other state.’’ General Statutes § 46b-115m (a).
On the basis of the plain language of § 46b-115m (a),
in order for Connecticut to have jurisdiction to modify
Florida’s initial custody order, there must be two find-
ings in the present case:11 that the Connecticut trial
court has initial custody jurisdiction pursuant to § 46b-
115k (a) (1) through (4) and either that Connecticut or
Florida determines that neither parent nor the child
presently resides in Florida, thereby ending Florida’s
exclusive, continuing jurisdiction. These two steps as
to whether Connecticut has initial custody jurisdiction
and as to whether Florida retains exclusive, continuing
jurisdiction, stand on equal footing under the plain lan-
guage of § 46b-115m (a). We begin our analysis with
the latter because it formed the basis of the decision
of the Connecticut court.
During the phone conference, the Connecticut court
agreed with the Florida court that that Florida court
retains exclusive, continuing jurisdiction until the Flor-
ida court decides to relinquish such jurisdiction and, as
a result, the Connecticut court dismissed the plaintiff’s
motion for modification. In its articulation, the court
noted that it dismissed the plaintiff’s motion to modify
in light of the UCCJEA, ‘‘particularly as Florida did not
relinquish jurisdiction.’’ The plaintiff argues that the
court improperly deferred to the Florida court, and we
agree. The exclusive, continuing jurisdiction provision
of Florida’s UCCJEA, Fla. Stat. Ann. § 61.515,12 which is
substantially similar to § 46b-115l, provides in relevant
part: ‘‘(1) . . . [A] court of this state which has made
a child custody determination consistent with [the pro-
vision of Florida’s UCCJEA pertaining to initial child
custody jurisdiction] . . . has exclusive, continuing
jurisdiction over the determination until: (a) A court of
this state determines that the child, the child’s parents,
and any person acting as a parent do not have a signifi-
cant connection with this state and that substantial
evidence is no longer available in this state concerning
the child’s care, protection, training, and personal rela-
tionships; or (b) A court of this state or a court of
another state determines that the child, the child’s par-
ent, and any person acting as a parent do not presently
reside in this state. (2) A court of this state which has
made a child custody determination and does not have
exclusive, continuing jurisdiction under this section
may modify that determination only if it has jurisdiction
to make an initial determination under s. 61.514.’’
(Emphasis added.) According to the plain language of
Fla. Stat. Ann. § 61.515 (1) (a), only Florida can deter-
mine if it lost jurisdiction due to a lack of significant
contacts/substantial evidence, but pursuant to subsec-
tion (b), either the Florida court or the Connecticut
court can determine that the Florida court no longer
has exclusive, continuing jurisdiction over the child
custody matter due to the child and the child’s parents
no longer presently residing in Florida.
During the phone conference, the Florida court stated
that both parents and the child had left Florida and had
relocated to other states. The Florida court specifically
explained that the defendant relocated to Alabama, that
the child would visit Florida every month while the
plaintiff was still in Florida, but that eventually the
plaintiff relocated to Connecticut, resulting in a situa-
tion in which the child and both parents were no longer
in the state of Florida. The Florida court further stated
that it would not hear the case and that Alabama, in
which no proceeding was then pending, was the proper
venue. The Connecticut court stated that ‘‘everyone
left’’ Florida, but concluded that it would ‘‘enter an
order in our case that due to Florida retaining jurisdic-
tion, we don’t have any.’’
The Connecticut court based its decision on an incor-
rect interpretation of the UCCJEA that Florida retains
exclusive, continuing jurisdiction until it decides to
relinquish it. Although the UCCJEA grants exclusive,
continuing jurisdiction over child custody disputes to
the state that made the initial custody determination,
the UCCJEA also provides an end date to that exclusive,
continuing jurisdiction.13 See General Statutes 46b-115l
(a); Fla. Stat. Ann. § 61.515 (West 2012); see also In re
Marriage of Nurie, 176 Cal. App. 4th 478, 502, 98 Cal.
Rptr. 3d 200 (2009) (noting UCCJEA ‘‘reflects a deliber-
ate effort to provide a clear end-point to the decree
state’s jurisdiction, to prevent courts from treading on
one another’s jurisdiction, and to ensure that custody
orders will remain fully enforceable until a court deter-
mines they are not’’).
The comment to § 202 of the UCCJEA, which con-
cerns continuing exclusive jurisdiction, explains that
‘‘[t]his is a new section addressing continuing jurisdic-
tion. Continuing jurisdiction was not specifically
addressed in the UCCJA. Its absence caused consider-
able confusion, particularly because the PKPA, § 1738
(d), requires other [s]tates to give [f]ull [f]aith and
[c]redit to custody determinations made by the original
decree [s]tate pursuant to the decree [s]tate’s continu-
ing jurisdiction so long as that [s]tate has jurisdiction
under its own law and remains the residence of the child
or any contestant. . . . This section provides [that the]
continuing jurisdiction of the original decree [s]tate is
exclusive. It continues until one of two events occurs:
1. If a parent or a person acting as a parent remains in
the original decree [s]tate, continuing jurisdiction is lost
when neither the child, the child and a parent, nor the
child and a person acting as a parent continue to have
a significant connection with the original decree [s]tate
and there is no longer substantial evidence concerning
the child’s care, protection, training and personal rela-
tions in that [s]tate. . . . 2. Continuing jurisdiction is
lost when the child, the child’s parents, and any person
acting as a parent no longer reside in the original decree
[s]tate. . . . The phrase [‘do not presently reside’] is
meant to be identical in meaning to the language of the
PKPA which provides that full faith and credit is to be
given to custody determinations made by a [s]tate in
the exercise of its continuing jurisdiction when that
[s]tate remains the residence of. . . . It is the intention
of [the section of the UCCJEA regarding exclusive con-
tinuing jurisdiction that the phrase ‘‘presently reside’’]
means that the named persons no longer continue to
actually live within the [s]tate. Thus, unless a modifica-
tion proceeding has been commenced, when the child,
the parents, and all persons acting as parents physically
leave the [s] tate to live elsewhere, the exclusive, contin-
uing jurisdiction ceases. . . . If the child, the parents,
and all persons acting as parents have all left the [s]tate
which made the custody determination prior to the
commencement of the modification proceeding, consid-
erations of waste of resources dictate that a court in
[s]tate B, as well as a court in [s]tate A, can decide that
[s]tate A has lost exclusive, continuing jurisdiction.
. . . [O]nce a [s]tate has lost exclusive, continuing juris-
diction, it can modify its own determination only if it
has jurisdiction under the standards of [initial custody
jurisdiction]. . . .’’ Unif. Child Custody Jurisdiction and
Enforcement Act (1997), § 202, comment, 9 U.L.A. (Pt.
IA) 511–12 (2019).
Pursuant to the UCCJEA, exclusive continuing juris-
diction ends when the original decree state determines
that the significant connection and the substantial evi-
dence requirements are no longer met, or when either
the original decree state or another state determines
that neither parent nor the child continues to reside in
the original decree state. See General Statutes § 46b-
115l (a); Fla. Stat. Ann. § 61.515 (West 2002). The com-
ment to § 203 of the UCCJEA, which concerns jurisdic-
tion to modify a custody determination by another state,
states in relevant part: ‘‘The modification [s]tate is not
authorized to determine that the original decree [s]tate
has lost its jurisdiction. The only exception is when the
child, the child’s parents, and any person acting as a
parent do not presently reside in the other [s]tate. In
other words, a court of the modification [s]tate can
determine that all parties have moved away from the
original [s]tate.’’ Unif. Child Custody Jurisdiction and
Enforcement Act (1997), § 203, comment, 9 U.L.A. (Pt.
1A) 516. Accordingly, the Connecticut court was not
required to defer automatically to the Florida court
under all circumstances, but had the authority to deter-
mine whether Florida lost exclusive, continuing juris-
diction as a result of neither parent nor the child pres-
ently residing in Florida at the time that the plaintiff
commenced his Connecticut modification proceeding.14
We remand the matter so that the court can apply the
proper law.
The remaining step in determining whether Connecti-
cut has jurisdiction to modify the Florida order pursuant
to § 46b-115m is for the Connecticut court to assess
whether it has jurisdiction to make an initial custody
determination pursuant to § 46b-115k (a) (1) through
(4). We agree with the plaintiff that the Connecticut
court was unable to make the prerequisite findings with-
out an evidentiary hearing.
Section 46b-115k (a) (1) through (4) establishes a
hierarchy of four bases that grant a state jurisdiction
to make an initial custody determination: home state
jurisdiction, significant connection jurisdiction, and
more appropriate forum jurisdiction. Specifically,
§ 46b-115k (a) provides in relevant part: ‘‘(1) This state
is the home state of the child on the date of the com-
mencement of the child custody proceeding; (2) This
state was the home state of the child within six months
of the commencement of the child custody proceeding,
the child is absent from the state, and a parent or a
person acting as a parent continues to reside in this
state; (3) A court of another state does not have jurisdic-
tion under subdivisions (1) or (2) of this subsection,
the child and at least one parent or person acting as a
parent have a significant connection with this state
other than mere physical presence, and there is substan-
tial evidence available in this state concerning the
child’s care, protection, training and personal relation-
ships; (4) A court of another state which is the home
state of the child has declined to exercise jurisdiction
on the ground that this state is the more appropriate
forum under a provision substantially similar to section
46b-115q or section 46b-115r, the child and at least one
parent or person acting as a parent have a significant
connection with this state other than mere physical
presence, and there is substantial evidence available
in this state concerning the child’s care, protection,
training and personal relationships . . . .’’
It is undisputed that the Florida court had jurisdiction
to make an initial determination regarding custody
when it rendered its dissolution judgment on March 23,
2016. In the judgment of dissolution, the Florida court
found that Florida was the home state of the child and
that the father had been a resident of the state of Florida
for at least six months prior to the filing of the petition
for the dissolution of marriage. See Fla. Stat. Ann.
§ 61.514 (West 2002). Since then, however, circum-
stances have changed and the child and both parents
have relocated out of Florida. Although the Florida
court had jurisdiction to make the March 23, 2016 initial
determination regarding custody, there currently are
unresolved issues of fact regarding whether Florida or
Connecticut has jurisdiction to modify the March 23,
2016 determination.
Home state jurisdiction, which is given first priority
when determining initial custody jurisdiction, exists
when, in relevant part, a state is the ‘‘home state’’ of
the child ‘‘on the date of the commencement’’ of the
proceeding or when the state was the home state of
the child within six months of the ‘‘commencement’’ of
the proceeding. See General Statutes § 46b-115k (1)
and (2). Section 46b-115a (7) defines ‘‘home state’’ in
relevant part as ‘‘the state in which a child lived with
a parent or persons acting as a parent for at least six
consecutive months immediately before the commence-
ment of a child custody proceeding. . . . A period of
temporary absence of any such person is counted as
part of the period.’’
Although Florida had jurisdiction on March 23, 2016,
to make an initial determination, there exists no provi-
sion in the UCCJEA providing that jurisdiction to make
an initial determination continues until the state relin-
quishes jurisdiction even if all parties have moved out of
the state prior to the commencement of a modification
proceeding. In other words, ‘‘initial determination’’ and
the ‘‘commencement’’ of a proceeding do not necessar-
ily mean the same thing. An ‘‘initial determination’’ is
defined as ‘‘the first child custody determination con-
cerning a particular child . . . .’’ General Statutes
§ 46b-115a (8). ‘‘ ‘Commencement’ ’’ is defined as ‘‘the
filing of the first pleading in a proceeding . . . .’’ Gen-
eral Statutes § 46b-115a (5). ‘‘ ‘Child custody proceed-
ing’ means a proceeding in which legal custody, physical
custody or visitation with respect to a child is an issue.
. . .’’ General Statutes § 46b-115a (4). A proceeding con-
cerning the modification of an initial custody determina-
tion fits within the definition of ‘‘child custody proceed-
ing.’’ Accordingly, as the UCCJEA bears out, a motion
for modification of child custody constitutes the com-
mencement of a child custody proceeding.
The general scheme of the UCCJEA and Connecticut
case law provide a basis for interpreting the filing of a
motion for modification as the commencement of a
proceeding. First, § 46b-115m (3) provides that this
state can modify another state’s custody order if certain
criteria relevant to initial custody jurisdiction are met
and, among other possible additional factors, a court
of this state or another state determines that the child
and the parents no longer reside in the other state.
Additionally, in Temlock v. Temlock, supra, 95 Conn.
App. 522, this court used the date of the filing of a
motion for modification as the relevant date for
determining home state. We find persuasive, and agree
with, the reasoning used by the Nevada Supreme Court
when interpreting ‘‘commencement of the proceeding’’
under the UCCJEA provision of Nevada’s initial custody
jurisdiction statute, which is virtually identical to § 46b-
115k. The court stated: ‘‘The relevant proceeding for
purposes of determining the date of the commencement
of the proceeding . . . is not the original divorce pro-
ceeding. Rather, it is the [postdivorce] motion concern-
ing custody or visitation that controls. . . . To 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 . . . a result
that is contrary to the underlying purpose of the UCC-
JEA. . . . [W]e [therefore] must interpret commence-
ment of the proceeding to mean the recent, [postdi-
vorce] proceeding concerning the custody of the child.’’
(Internal quotation marks omitted.) Friedman v. Eighth
Judicial District Court, 127 Nev. 842, 849, 264 P.3d
1161 (2011); see also Wahlke v. Pierce, 392 S.W.3d 426,
429 (Ky. App. 2013) (‘‘[J]urisdiction under the UCCJEA
‘attaches at the commencement of a proceeding’ . . . .
So, a family court’s jurisdiction to modify custody is
determined at the time the motion to modify is filed.’’).
The plaintiff filed his motion for modification in Con-
necticut on October 9, 2018, approximately one year
after he moved to Connecticut. At that time, the defen-
dant lived in Alabama and the child resided with the
parties on an alternating monthly basis. Under these
circumstances, there are issues of fact as to whether
Connecticut was the home state of the child on October
9, 2018, particularly whether the time the child spent
in Alabama is considered a ‘‘temporary absence’’
from Connecticut.15
Next in the hierarchy of initial custody jurisdiction
is ‘‘significant connection’’ jurisdiction, § 46b-115k (a)
(3), which exists when a court of another state does
not have home state jurisdiction and the child and at
least one parent must have a significant connection to
the state.16 Whether Florida was the home state of the
child at the time the defendant’s motion for modifica-
tion was filed in Florida is an unresolved factual issue
as is the question of whether the plaintiff and the child
have a significant connection with Connecticut.17 Thus,
the determination of jurisdiction is dependent on unre-
solved factual issues that ‘‘cannot initially be deter-
mined on appeal. . . . When issues of fact are neces-
sary to the determination of a court’s jurisdiction, due
process requires that a [trial like] hearing be held, in
which an opportunity is provided to present evidence
and to cross-examine adverse witnesses.’’ (Citation
omitted; internal quotation marks omitted.) Temlock v.
Temlock, supra, 95 Conn. App. 523. We conclude that the
court improperly determined that it lacked jurisdiction
because it did not afford the plaintiff an evidentiary
hearing. See id.The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion,
including an evidentiary hearing on the plaintiff’s
motion for modification.
In this opinion, DEVLIN, J., concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The defendant did not file a brief and we have ordered that this appeal be
considered on the basis of the plaintiff’s brief, oral argument and the record.
2
The defendant represented this undisputed procedural history to the
Connecticut court in her motion to dismiss the plaintiff’s motion for modifi-
cation.
3
Practice Book § 25-57 provides: ‘‘Before the judicial authority renders
any order in any matter pending before it involving the custody, visitation
or support of a minor child or children, an affidavit shall be filed with the
judicial authority averring (1) whether any of the parties is believed to be
pregnant; (2) the name and date of birth of any minor child born since the
date of the filing of the complaint or the application; (3) information which
meets the requirements of the Uniform Child Custody Jurisdiction and
Enforcement Act, General Statutes § 46b-115 et seq.; (4) that there is no
other proceeding in which either party has participated as a party, witness,
or otherwise, concerning custody of the child in any state; and (5) that no
person not a party has physical custody or claims custody or visitation
rights with respect to the child. This section shall not apply to modifications
of existing support orders or in situations involving allegations of contempt
of support orders.’’
4
General Statutes § 46b-115h provides in relevant part: ‘‘(a) A court of
this state may communicate with a court in another state concerning a
proceeding arising under this chapter. (b) The court may allow the parties
to participate in the communication. If the parties are not able to participate
in the communication, they must be given the opportunity to present facts
and legal arguments before a decision on jurisdiction is made. . . .’’ See
Berg v. Somers, Superior Court, judicial district of Litchfield, Docket No.
FA-XX-XXXXXXX-S (January 31, 2013) (discussing process of communication
between courts); Coyt v. Valdez, Superior Court, judicial district of Fairfield,
Docket No. XX-XXXXXXX-S(June 22, 2011) (same).
5
The Florida court explained that, under Florida law, the defendant’s
counsel, but not the defendant, was permitted to attend.
6
General Statutes § 46b-71 provides: ‘‘(a) Any party to an action in which
a foreign matrimonial judgment has been rendered, shall file, with a certified
copy of the foreign matrimonial judgment, in the court in this state in which
enforcement of such judgment is sought, a certification that such judgment
is final, has not been modified, altered, amended, set aside or vacated and
that the enforcement of such judgment has not been stayed or suspended,
and such certificate shall set forth the full name and last-known address of
the other party to such judgment and the name and address of the court in the
foreign state which rendered such judgment. (b) Such foreign matrimonial
judgment shall become a judgment of the court of this state where it is
filed and shall be enforced and otherwise treated in the same manner as a
judgment of a court in this state; provided such foreign matrimonial judgment
does not contravene the public policy of the state of Connecticut. A foreign
matrimonial judgment so filed shall have the same effect and may be
enforced or satisfied in the same manner as any like judgment of a court
of this state and is subject to the same procedures for modifying, altering,
amending, vacating, setting aside, staying or suspending said judgment as
a judgment of a court of this state; provided, in modifying, altering, amending,
setting aside, vacating, staying or suspending any such foreign matrimonial
judgment in this state the substantive law of the foreign jurisdiction shall
be controlling.’’
7
General Statutes § 46b-72 provides: ‘‘Within five days after the filing of
such judgment and certificate, the party filing such judgment shall notify
the other party of the filing of such foreign matrimonial judgment by regis-
tered mail at his last-known address or by personal service. Execution shall
not issue on any such foreign matrimonial judgment for a period of twenty
days from the filing thereof and no steps shall be taken to enforce such
judgment until proof of service has been filed with the court.’’
8
‘‘[Section] 46b-56 (a) which grants the [S]uperior [C]ourt the general
authority to make or modify any proper order as to the custody or care of
minor children grants that authority only if the court ‘has jurisdiction under
the provisions of [c]hapter 815p’ which is the chapter setting forth Connecti-
cut’s version of the UCCJEA. Accordingly, the criteria for determining juris-
diction set forth in the UCCJEA are applicable in virtually every [family
relations] proceeding in which custody and/or visitation orders may be
entered. Nevertheless, the issue is not likely to be raised and the UCCJEA
requirements are not likely to be discussed if everyone involved resides in
Connecticut.’’ A. Rutkin et al., 8 Connecticut Practice Series: Family Law
and Practice (2010) § 40:3, p. 437.
9
We note, however, that the portion of the plaintiff’s motion for modifica-
tion concerning child support is not governed by the UCCJEA. Financial
orders, such as child support, are not governed by the UCCJEA. General
Statutes § 46b-115a (3) defines ‘‘child custody determination’’ as ‘‘a judgment,
decree, or other order of a court providing for the legal custody, physical
custody or visitation with respect to a child. The term includes a permanent,
temporary, initial and modification order. The term does not include an
order relating to child support or other monetary obligation of an individual.’’
10
These jurisdictional tests also form the basis for initial custody jurisdic-
tion under Connecticut’s UCCJEA. See General Statutes § 46b-115k.
11
There are only two basic findings required in this case because § 46b-
115m (a) (1) and (2) are not applicable.
12
See A. Rutkin et al., 8 Connecticut Practice Series: Family Law and
Practice (2010) § 40:10, p. 451 (‘‘[A] Connecticut trial court faced with a
motion to modify an out-of-state custody determination should refer to the
other state’s version of the UCCJEA to determine if modification jurisdiction
continues there. If it does, the Connecticut action should be dismissed.’’
(Footnote omitted.)).
13
Similar to the exclusive, continuing jurisdiction provisions of the UCC-
JEA, the PKPA ‘‘anchor[s] exclusive modification jurisdiction in the original
home state as long as the child or one of the contestants remain in that
state.’’ (Internal quotation marks omitted.) Scott v. Somers, supra, 97 Conn.
App. 53; see 28 U.S.C. § 1738A (2000). The PKPA extends the requirements
of the full faith and credit clause to custody determinations and mandates
that each state ‘‘shall enforce according to its terms, and shall not modify’’
a child custody determination, except as provided by the PKPA, ‘‘any custody
determination or visitation determination made consistently with the provi-
sions of this section by a court of another [s]tate.’’ 28 U.S.C. § 1738A (a)
(2000). Under the supremacy clause, the PKPA preempts state law when
the two conflict. See, e.g., Scott v. Somers, supra, 97 Conn. App. 51 (dis-
cussing UCCJA, which was later replaced by UCCJEA).
14
We do not express an opinion as to whether, under the sparse factual
record before the trial court, the parents and the child presently reside in
Florida. We need not determine, for purposes of this appeal, precisely what
the term ‘‘presently resides’’ means, but note that other states have expressed
a concern with conflating the phrase with physical presence, reasoning that
such an interpretation leads to jurisdictional instability permitting a parent
to race to establish a new home state for their child in effort to relitigate
custody issues in a friendlier forum once the other parent is no longer
physically present in the original decree state for a variety of reasons. See
Brandt v. Brandt, 268 P.3d 406 (Colo. 2012) (concerned with situation in
which issuing state could lose jurisdiction if parent is temporarily out of
state in hospital or on military assignment); see also K. Wessel, ‘‘Home Is
Where the Court Is: Determining Residence for Child Custody Matters Under
the UCCJEA,’’ 79 U. Chi. L. Rev. 1141, 1143–75 (2012) (detailing difficulties
in defining ‘‘presently reside’’). In an effort to combat forum shopping and
encourage stability in custody orders, some states have adopted an approach
wherein the relevant inquiry is not whether the parents reside somewhere
other than the original decree state, but whether the parents and the child
had stopped residing in the original decree state. See In re Marriage of
Nurie, supra, 176 Cal. App. 4th 499.
15
We reject the plaintiff’s argument that the Connecticut court has subject
matter jurisdiction over the motion for modification because Connecticut
is the home state of the child. An evidentiary hearing is required in order
for the court to make the necessary factual findings for that determination.
16
The final jurisdictional basis that is implicated in § 46b-115m, is ‘‘more
appropriate forum’’ jurisdiction pursuant to § 46b-115k (a) (4). There is no
discussion in the record regarding more appropriate forum jurisdiction.
17
It is not disputed that more than one year after the plaintiff moved to
Connecticut in October, 2017, he filed a motion to voluntarily dismiss his
Florida modification proceeding on September 13, 2018. Fla. Family Law
Rules of Procedure § 12.420 provides in relevant part: ‘‘(a) Voluntary Dis-
missal. (1) By Parties. An action or a claim may be dismissed (A) before
trial by serving, or during trial by stating on the record, a notice of dismissal
at any time before a hearing on motion for summary judgment, or if none
is served or if the motion is denied, before retirement of the jury in a case
tried before a jury or before submission of a nonjury case to the court for
decision . . . .’’
During the phone conference, the Florida court agreed with the defen-
dant’s counsel that the plaintiff had voluntarily dismissed his Florida motion,
and that the defendant’s motion for modification was still pending in the
Florida court. It is clear from the phone conference, that the courts were
deciding whether Connecticut had jurisdiction over the plaintiff’s motion for
modification in Connecticut or Florida had jurisdiction over the defendant’s
pending motion for modification.