Barr v. Barr

• Decision Date: 28 January 2020
• Docket Number: AC 42333
• Citation: 195 Conn.App. 479,225 A.3d 972
• Court: Connecticut Court of Appeals
• Parties: Alison BARR v. Dean BARR

195 Conn.App. 479

225 A.3d 972

Alison BARR

v.Dean BARR

AC 42333

Appellate Court of Connecticut.

Argued November 13, 2019

Officially released January 28, 2020

Joseph M. Pastore III, Stamford, for the appellant (defendant).

Keller, Bright and Sheldon, Js.

KELLER, J.

The defendant, Dean Barr, appeals from the trial court's judgment granting the postjudgment motion for contempt brought by the plaintiff, Alison Barr.¹ The defendant claims that, with respect to the motion, the plaintiff did not properly serve the defendant with process.² We agree with the defendant and, accordingly, reverse the judgment of the court and remand the case with direction to dismiss the motion for contempt.

The record reveals the following procedural history. The court, S. Richards, J. , rendered judgment dissolving the parties' marriage on December 31, 2015. On October 7, 2016, the plaintiff filed five postjudgment motions for contempt, citing the defendant's noncompliance with various dissolution orders. On March 21, 2017, the court, Heller, J. , issued a memorandum of decision, in which it granted three³ of the plaintiff's motions for contempt and denied two⁴ of the plaintiff's motions for contempt. On June 21, 2018, the plaintiff filed a motion for contempt seeking an additional order holding the defendant in contempt for failing to comply with the orders set forth in the March 21, 2017 memorandum of decision. The plaintiff's counsel certified the June 21, 2018 motion to an address for the defendant in Suwanee, Georgia. On July 16, 2018, the court held a hearing on the plaintiff's motion. The defendant did not file an appearance and was not present at the hearing, but the court found that the defendant had notice of the hearing and of the June 21, 2018 motion for contempt. The court did not make any finding with respect to whether the out-of-state defendant was served with process in accordance with the applicable long arm statutes. On November 9, 2018, the court issued a memorandum of decision, in which it granted the plaintiff's motion for contempt. The defendant filed the present appeal on November 29, 2018.⁵

On appeal, the defendant asserts that the plaintiff's counsel had claimed that a copy of the June 21, 2018 postjudgment motion for contempt was mailed to a Georgia address on file for the defendant and was e-mailed to the defendant's e-mail address on file. The defendant claims that the plaintiff, therefore, did not properly serve the defendant with process. We agree.

Preliminarily, we address the reviewability of the defendant's claim because he raises the issue of personal jurisdiction for the first time on appeal. "Under our well established jurisprudence, [a] challenge to a court's personal jurisdiction ... is waived if not raised by a motion to dismiss within thirty days [after the filing of an appearance] .... The general waiver rule, however, is inapplicable in situations in which there has been no service of process or attempt of service." (Citations omitted; internal quotation marks omitted.) Bowen v. Seery , 99 Conn. App. 635, 638, 915 A.2d 335, cert. denied, 282 Conn. 906, 920 A.2d 308 (2007). In Bowen , this court held that a party did not waive its challenge to personal jurisdiction by not filing a motion to dismiss within the time constraints of Practice Book § 10-30 because the party was not served with process and did not appear in the action. Id., at 640, 915 A.2d 335 n.5.

Further, our Supreme Court has held that "[i]t is axiomatic that a court cannot render a judgment without first obtaining personal jurisdiction over the parties. No principle is more universal than that the judgment of a court without jurisdiction is a nullity.... Such a judgment, whenever and wherever declared upon as a source of a right, may always be challenged." (Internal quotation marks omitted.) Argent Mortgage Co., LLC v. Huertas , 288 Conn. 568, 576, 953 A.2d 868 (2008). "As a matter of law, in the absence of jurisdiction over the parties, a judgment is void ab initio and is subject to both direct and collateral attack." (Internal quotation marks omitted.) Wilkinson v. Boats Unlimited, Inc. , 236 Conn. 78, 84, 670 A.2d 1296 (1996). The Restatement (Second) of Judgments categorizes relief by way of an appeal from a judgment as a direct attack. 2 Restatement (Second), Judgments, c.5, introductory note, pp. 140–41 (1982).⁶

Having determined that this court can review the defendant's claim, we now turn to the applicable standard of review.⁷ "[A] challenge to the jurisdiction of the court presents a question of law over which our review is plenary." Ryan v. Cerullo , 282 Conn. 109, 118, 918 A.2d 867 (2007). "[T]he Superior Court ... may exercise jurisdiction over a person only if that person has been properly served with process , has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction." (Emphasis added; internal quotation marks omitted.) Kim v. Magnotta , 249 Conn. 94, 101–102, 733 A.2d 809 (1999).

"Proper service of process is not some mere technicality ... but is designed to provide notice of judicial proceedings that may implicate a party's rights. It is beyond question that due process of law ... requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation....

‘‘Adjudication of a motion for civil contempt implicates these constitutional safeguards.... [W]here the alleged contempt does not occur in the presence of the court ... process is required to bring the party into court, and the acts or omissions constituting the offense are to be proved as in ordinary cases." (Citations omitted; footnote omitted; internal quotation marks omitted.) Alldred v. Alldred , 132 Conn. App. 430, 434–35, 31 A.3d 1185 (2011), appeal dismissed, 303 Conn. 926, 35 A.3d 1075 (2012). This court, in Alldred , addressed an issue nearly identical to that in the present case: "[W]hether a postjudgment motion for contempt that is filed for the purpose of enforcing an antecedent judicial order requires proper service of process." Id., at 435, 31 A.3d 1185. Although the procedural posture of Alldred differed from that of the present case, because in Alldred , this court reviewed the trial court's judgment granting the plaintiff's motion to dismiss the defendant's contempt actions and, here, we are reviewing the trial court's judgment granting the plaintiff's motion for contempt, the service of process requirement delineated in Alldred remains equally applicable to the present case. Id., at 433, 31 A.3d 1185.

In Alldred , this court distinguished between the service requirements for pendente lite and postjudgment motions in holding that "proper service of process in postjudgment contempt proceedings requires the movant to cause the contempt complaint and summons to be served upon the alleged contemnor." (Emphasis omitted.) Id., at 436, 31 A.3d 1185. Further, this court relied on the family law volume of the Connecticut Practice Series to support this service of process requirement: "Where a final judgment has entered and no other matters in connection with the case are currently pending before the court ... the contempt proceeding must be initiated by way of an Application for Order to Show Cause and for Contempt Citation.... [T]he application is forwarded first to the clerk of the court who assigns a specific date and time for hearing on the contempt matter. The papers are then served on the respondent in the same manner employed for the service of civil process." A. Rutkin et al., 8 Connecticut Practice Series: Family Law and Practice with Forms (2010) § 34:5, pp. 110–11.

Further, in a postjudgment contempt proceeding, "mere knowledge of the proceedings is insufficient to confer personal jurisdiction over a party who has not been properly served." Alldred v. Alldred , supra, 132 Conn. App. at 437, 31 A.3d 1185. On the basis of the foregoing, in Alldred this court held that the defendant's "attempt to serve the plaintiff by mailing copies of the postjudgment contempt motions to the plaintiff's counsel did not confer personal jurisdiction over the plaintiff on the court." Id., at 438, 31 A.3d 1185. Our Supreme Court has also held that, "[w]hen a particular method of serving process is set forth by statute, that method must be followed.... Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction." (Internal quotation marks omitted.) Argent Mortgage Co., LLC v. Huertas , supra, 288 Conn. at 576, 953 A.2d 868.

Here, with regard to the June 21, 2018 postjudgment motion for contempt, the plaintiff did not provide the defendant with proper service of process. Pursuant to Alldred , the plaintiff must have provided the defendant with service of process in the manner required for the service of civil process. The record indicates that the plaintiff made no attempt to serve the defendant under any applicable long arm statute. Rather, the record reflects that the plaintiff's counsel certified that he mailed a copy of the motion to an address on file for the defendant in Suwanee, Georgia, and e-mailed a copy to the defendant's e-mail address on file. Whether the plaintiff's attempts to provide the defendant with mail or e-mail actually occurred, or whether they provided the defendant with actual notice of the motion, is immaterial because knowledge of the motion, without proper service, is insufficient to confer personal jurisdiction over that party. Alldred v. Alldred , supra, 132 Conn. App. at 438, 31 A.3d 1185.

The judgment is reversed and the case is remanded with direction to dismiss the June 21, 2018 motion for contempt.

In this opinion the other judges concurred.

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