Devone v. Finley

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JOHN MICHAEL DEVONE v. BRITTANY FINLEY
(AC 35460)
DiPentima, C. J., and Gruendel and Norcott, Js.
Argued January 8—officially released March 11, 2014
(Appeal from Superior Court, judicial district of
Fairfield, Hon. Howard T. Owens, Jr., judge trial
referee.)
Josephine Smalls Miller, filed a brief for the appel-
lant (plaintiff).
Anne Louise Blanchard, with whom was Maria Var-
one, for the appellee (defendant).
Opinion
GRUENDEL, J. This case involves a custody dispute
between the plaintiff, John Michael Devone, and the
defendant, Brittany Finley. The plaintiff appeals from
the judgment of the trial court dismissing his custody
application for lack of subject matter jurisdiction.1 He
claims that the court improperly afforded full faith and
credit to the judgment of the Georgia Superior Court
regarding an individual’s custody rights to a child born
out of wedlock.2 We affirm the judgment of the trial
court.
The following factual and procedural history, as set
forth in the trial court’s memorandum of decision, is
relevant to this appeal. ‘‘The plaintiff . . . filed a cus-
tody complaint for sole legal custody and primary resi-
dence of the minor child. His complaint contends that
it is in the best interest of the minor child for Connecti-
cut to hear this case. The complaint alleges that the
minor child has lived in Connecticut for the past sixteen
months. The minor child was born out of wedlock in
Georgia, where he has resided continuously until on
or about January 26, 2012. During that time, the child
resided primarily with [the defendant] who shared sig-
nificant parenting time with the [plaintiff], who also
resided in Georgia until late 2011.
‘‘In August 2012, the minor child was living in Georgia
with the [defendant]. The [plaintiff], who was living in
Connecticut, requested from the [defendant] and was
granted parenting time with the minor child for a three-
week visit to Connecticut to visit with the [plaintiff]
and [his] parents. At that time, the [plaintiff] anticipated
securing a job and returning to Georgia to reside. When
the three weeks passed and the [plaintiff’s] expectation
of a job in Georgia fell through, the [plaintiff] claimed
he did not have the money to make the trip back to
Georgia so the parties agreed that the [plaintiff] could
return the minor child to Georgia at Thanksgiving. The
[plaintiff] did not return the child at Thanksgiving. The
[defendant] gathered the funds in January, 2013, to fly
to Connecticut to retrieve her son.
‘‘The [plaintiff] refused to return the son to the [defen-
dant]. The [defendant], who had been verbally promised
assistance on several occasions from the Bridgeport
police before traveling to Bridgeport, was unable to get
their help in securing her son’s return because she had
no formal court orders concerning custody. She had
only the Georgia law which establishes her as the sole
custodian. The [defendant] returned home to Georgia
and contacted the Marietta Police Department [which],
after investigating her claims and attempting to negoti-
ate the child’s return with the child’s paternal relatives,
secured on January [23], 2013, a warrant (No. 13-W-767
signed by Magistrate Court of Cobb County) for the
felony charge of interstate interference with custody
(Marietta police case no. 0113001159). On February 7,
2013, the [plaintiff] surrendered himself in Connecticut
on the warrant and posted a bond (F02B-CR13-
0270463). A February 21, 2013 Connecticut hearing was
scheduled on what appears to be his extradition.
‘‘On or about February 2, 2013, a custody complaint
was left at the maternal grandmother’s home bearing
a hearing date of February 11, 2013. The hearing did
not proceed on February 11, 2013, due to a court closing
. . . .’’ On February 20, 2013, the defendant filed a
motion to dismiss the plaintiff’s custody complaint,
claiming that Connecticut lacks custody jurisdiction.
On February 26, 2013, the defendant obtained an
emergency temporary custody order from the Georgia
Superior Court, in which that court concluded that the
defendant ‘‘shall have immediate custody of the minor
child.’’ In receipt of such custody order, the plaintiff
filed a motion for an emergency hearing in Connecticut
and an objection to the defendant’s motion to dismiss.
The trial court held a hearing on February 28, 2013.
The trial court thereafter dismissed the plaintiff’s cus-
tody application, stating in relevant part: ‘‘This court
should give full faith and credit to the Georgia law
where the parties and the minor child lived at the time
of the child’s birth and where the [defendant] and son
have always resided. The [defendant] has sole right to
the custody of the parties’ son under Georgia law.
Unless the [plaintiff] legitimizes the child as provided
by law, a judgment separate and distinct in Georgia from
simply acknowledging paternity, then the [plaintiff] has
no standing with reference to the child. Under Georgia
law, as the only recognized parent, the [defendant’s]
status is akin to a judicial determination that she is
the sole custodian. As such, the [plaintiff] unlawfully
withheld the child from the [defendant] when he refused
to return the child to [her] custody in Georgia.’’3 Accord-
ingly, the court dismissed the matter for lack of subject
matter jurisdiction and this appeal followed.
‘‘A motion to dismiss . . . properly attacks the juris-
diction of the court, essentially asserting that the [plain-
tiff] cannot as a matter of law and fact state a cause
of action that should be heard by the court . . . . [It]
tests, inter alia, whether, on the face of the record, the
court is without jurisdiction.’’ (Internal quotation marks
omitted.) In re Iliana M., 134 Conn. App. 382, 387–88,
38 A.3d 130 (2012). ‘‘The issue of standing implicates
subject matter jurisdiction and is therefore a basis for
granting a motion to dismiss. Practice Book § [10-30
(a)].’’ (Internal quotation marks omitted.) McWeeny v.
Hartford, 287 Conn. 56, 63, 946 A.2d 862 (2008).
Our standard of review is well established. ‘‘[W]here
legal conclusions of the [trial] court are challenged, we
must determine whether they are legally and logically
correct and whether they find support in the facts set
out in the memorandum of decision . . . . Thus, our
review of the trial court’s ultimate legal conclusion and
resulting grant of the motion to dismiss will be de novo.’’
(Citation omitted; internal quotation marks omitted.)
Borden v. Planning & Zoning Commission, 58 Conn.
App. 399, 405, 755 A.2d 224, cert. denied, 254 Conn. 921,
759 A.2d 1023 (2000).
In the present case, the plaintiff claims that the court
improperly began its determination on the custody peti-
tion by affording full faith and credit to the substantive
law in Georgia. The plaintiff argues that the proper
inquiry, pursuant to the Uniform Child Custody Jurisdic-
tion and Enforcement Act, General Statutes § 46b-115
et seq., is first to determine where the minor child lived
or had recently lived in order to determine the home
state of the child and the subsequent jurisdictional law
the court should apply. This claim is unavailing.
‘‘It is axiomatic that a party must have standing to
assert a claim in order for the court to have subject
matter jurisdiction over the claim.’’ (Internal quotation
marks omitted.) Connecticut Podiatric Medical Assn.
v. Health Net of Connecticut, Inc., 302 Conn. 464, 469,
28 A.3d 958 (2011). ‘‘In order for a plaintiff to have
standing, it must be a proper party to request adjudica-
tion of the issues. . . . One cannot rightfully invoke
the jurisdiction of the court unless he has, in an individ-
ual or representative capacity, some real interest in the
cause of action, or a legal or equitable right, title or
interest in the subject matter of the controversy.’’ (Cita-
tions omitted; internal quotation marks omitted.)
Ganim v. Smith & Wesson Corp., 258 Conn. 313, 347,
780 A.2d 98 (2001).
The full faith and credit clause of the United States
constitution provides in relevant part that ‘‘Full Faith
and Credit shall be given in each State to the public
Acts, Records, and judicial Proceedings of every other
State. . . .’’ U.S. Const., art. IV, § 1. That constitutional
mandate ‘‘requires a state court to accord to the judg-
ment of another state the same credit, validity and effect
as the state that rendered the judgment would give it.’’
(Internal quotation marks omitted.) Nastro v. D’Ono-
frio, 76 Conn. App. 814, 814, 822 A.2d 286 (2003). ‘‘[T]he
burden of proving a lack of jurisdiction rests heavily
upon . . . the party attacking the judgment . . .
regardless of whether the judgment at issue was ren-
dered after a full trial on the merits or after an ex
parte proceeding.’’ (Internal quotation marks omitted.)
Business Alliance Capital Corp. v. Fuselier, 88 Conn.
App. 731, 737, 871 A.2d 1051 (2005).
On our review of the record before us, we conclude
that the trial court lacked jurisdiction in the present
case. The Georgia Superior Court, in accordance with
the law prescribed by its state,4 issued a temporary
custody order giving the defendant immediate custody
of the minor child. That court found that the plaintiff
failed to legitimize the child and thus concluded that
the defendant is the only party entitled to custody of
the child. The full faith and credit clause requires our
courts to recognize and enforce the judgment of the
Georgia Superior Court. In so doing, the trial court held
that the plaintiff, who has no recognized custody rights
over the minor child, lacked standing to bring a custody
application in this state. ‘‘If a party is found to lack
standing, the court is without subject matter jurisdic-
tion to determine the cause. . . . Subject matter juris-
diction involves the authority of the court to adjudicate
the type of controversy presented by the action before
it. . . . [A] court lacks discretion to consider the merits
of a case over which it is without jurisdiction . . . .’’
(Internal quotation marks omitted.) In re Christina M.,
280 Conn. 474, 480, 908 A.2d 1073 (2006). The trial court,
therefore, properly dismissed the custody application
for lack of jurisdiction.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff’s counsel failed to appear for oral argument before this
court.
2
The plaintiff also asserts that the court committed error by (1) finding
that it lacked jurisdiction to make custody orders, (2) dismissing the plain-
tiff’s child custody complaint, (3) declining jurisdiction based upon alleged
unjustifiable conduct by the plaintiff, (4) finding that Georgia was the home
state of the minor child, and (5) finding that a criminal arrest warrant was
tantamount to a child custody proceeding under General Statutes § 46b-
115p. Because we conclude that the plaintiff lacked standing to bring the
action, we do not discuss those claims.
3
The trial court dismissed the plaintiff’s custody application the same day
the Georgia Superior Court awarded the defendant sole legal and physical
custody of the child. The plaintiff filed an application to appeal the judgment
of the Georgia Superior Court, and the defendant filed a motion to dismiss
that application. The Georgia Court of Appeals ultimately dismissed the
plaintiff’s application as untimely and for lack of jurisdiction.
4
According to Georgia law, the father of a child born out of wedlock
must file a petition to legitimize in order to render his relationship with the
child legitimate. See Georgia Code Ann. § 19-7-22 (2013). Otherwise, ‘‘the
mother may exercise all parental power over the child.’’ Georgia Code Ann.
§ 19-7-25 (2008).