Case of the Day: Zitkene v. Zitkus

The case of the day is Zitkene v. Zitkus (Conn. Ct. App. 2013). The husband and the wife, both Lithuanian nationals at the time, were married in Lithuania in 1963. In the 1990s they moved to the United States. The separated, and the wife moved back to Lithuania. In 2004, the husband learned that the wife had sought to dissolve the marriage in the Kaunas City District Court in Lithuania, and he hired an attorney who took part in the Lithuanian case on his behalf. He also claims to have sought and obtained an ex parte divorce decree from the New York Supreme Court, but he did not file the New York judgment in Connecticut under the statute governing recognition of foreign matrimonial judgments. In any event, the New York judge refused to decree a division of assets, holding that such an action had to be brought in Lithuania. Meanwhile, the Lithuanian court approved the parties’ agreement on asset division and entered a judgment dissolving the marriage. The agreement gave the wife the greater share of the property, including real property in Lithuania, but it obligated her to make installment payments to the husband.

The wife made the first two payments, but then ceased making payments and appealed to the Kaunas Area Court, seeking to be excused from making the payments. The appellate court rejected her appeal.

The wife then brought a dissolution action in Connecticut. Her petition alleged on its face that the parties had entered into an agreement that had been accepted by the Lithuanian court, but it claimed that the agreement was “in contravention of Connecticut public policy and is invalid as obtained by gross misrepresentations of facts by the defendant; duress by the defendant; and mistakes in interpreting [United States] law committed by the Lithuanian court.” She sought dissolution of the marriage, an equitable division of property, and temporary and permanent alimony. The husband moved to dismiss. The trial court granted the motion. It granted comity to the Lithuanian divorce decree and then held that since there was no existing marriage, it lacked jurisdiction. The wife appealed.

The case for comity here seemed very strong, since there was no question that the wife was a bona fide domiciliary of Lithuania, and thus the Lithuanian court had jurisdiction to enter a divorce decree. But the wife argued that it was an abuse of discretion to grant comity in light of her allegation of fraud. But it was the wife’s burden to prove fraud. I don’t know anything about Connecticut procedure, let alone Connecticut procedure in family law cases. But it does seem to me that in the abstract it might be premature to make a decision on comity on a motion to dismiss, since ordinarily motions to dismiss are decided on the pleadings, not on the evidence. (On the other hand, a plaintiff ordinarily has an obligation to plead fraud with particularity, and it doesn’t seem the wife did so here). But here the husband submitted affidavits explaining exactly what had happened in Lithuania, and pointing in particular to the extensive negotiations, the parties’ representation to the court in Lithuania that they understood the agreement and were entering into it freely, etc. The wife filed her own affidavits, but she did not contradict any of this evidence. So essentially, the lower court granted a summary judgment, and the appellate court found no reason to overturn it. The court also pointed to the inequity of the wife’s position (her challenge to the judgment in the Lithuanian appellate court rested on different grounds than her present challenge) and held that she should be estopped to seek a dissolution in Connecticut.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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