Donahey v. Donahey, No. Fa 99 0171888s (Jul. 20, 1999)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION de DEFENDANT'S MOTION TO DISMISS PENDENTE LITE (111) The plaintiff wife in this case alleges in her complaint to be a resident of Greenwich, Connecticut, and seeks a dissolution of the marriage to the defendant that took place in the British West Indies on December 13, 1995.

The defendant husband in this case has initiated an action for divorce in the Supreme Court, Westchester County, New York seeking to dissolve the marriage. He alleges in the summons that he is a resident of Greenwich, Connecticut.

Our statute allows a dissolution of marriage action to be maintained if one of the parties is a Connecticut resident at the time it is started, § 46b-44, Conn. Gen. Stat. In the present case both the plaintiff and the defendant are Connecticut residents. Their status as a married couple cannot be severed from them.

The defendant's motion to dismiss assumes the initiation of the New York action is sufficient to capture what the defendant characterizes as the "marital res". This major premise, if granted, makes the defendant's theory logical.

There is nothing in the record to explain why New York would exercise jurisdiction in these circumstances. If a New York CT Page 10062 resident brought suit against the spouse who also resided in New York in our court, would Connecticut have captured the "marital res"? This court thinks not.

The "res incorporales" location is not yet "res adjudicata" but remains "res controversa" since this court declines to adopt the defendant's premise.

The defendant's motion to dismiss is denied.

HARRIGAN, J.