Carter v. Carter

• Decision Date: 15 March 1960
• Citation: 159 A.2d 173,147 Conn. 238
• Court: Connecticut Supreme Court
• Parties: Nancy W. CARTER v. Arthur W. CARTER, Jr. Supreme Court of Errors of Connecticut

Page 173

159 A.2d 173

147 Conn. 238

Nancy W. CARTER v. Arthur W. CARTER, Jr.

Supreme Court of Errors of Connecticut.

March 15, 1960.

Sigmund L. Miller, Bridgeport, with whom were Philip Baroff, New Haven, and, on the brief, Arthur Salvin, Norwalk, and Charles Hanken, Bridgeport, for appellant (defendant).

Bernard S. Peck, Bridgeport, with whom were Jacob D. Zeldes, Bridgeport, and, on the brief, David Goldstein, Bridgeport, for appellee (plaintiff).

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ, and SHEA, JJ.

SHEA, Associate Justice.

In her action for a divorce, the plaintiff seeks alimony as well as custody of two minor children and support for them. The plaintiff is domiciled in this state, but the defendant is a nonresident. Pursuant to orders issued in accordance with § 46-17 of the General Statutes, notice of the institution of the action was sent by registered mail to the defendant at various addresses in New York City. Under a subsequent order, dated, November 5, 1958, notice of the pending action was served on the defendant while he was attending court in this state in connection with another matter. On November 26, 1958, the defendant appeared specially and filed a plea in abatement and to the jurisdiction on the grounds that he was not served personally with process before the return day and no property owned by him in this state had been attached. The plaintiff demurred to the plea, claiming that in a divorce action against a nonresident, notice of the pendency of the action before the return day is not essential to give the court jurisdiction. The demurrer was sustained.

On December 11, 1958, the plaintiff, acting under § 52-281 of the General Statutes, applied for and obtained an order authorizing the attachment of property of the defendant in Fairfield County. The order contained a direction to the officer serving it to deposit a true and attested copy of the application and order in a post office, 'postage paid and letter registered, personal return receipt requested, directed to' the defendant at two different addresses in New York City. On the following day, a deputy sheriff purported to attach the defendant's interest in certain real estate situated in Greenwich. According to his return, he left in the town clerk's office 'a true and attested copy of the * * * Application for Attachment, Order of Attachment and Process with [his] doings thereon endorsed,' and he mailed by registered mail two like true and attested copies to the defendant at the addresses specified in the order.

Thereafter, the plaintiff filed a motion requesting alimony and support for the children pendente lite. The defendant again appeared specially to contest the jurisdiction of the court. After a hearing, an order was entered directing the defendant to pay to the plaintiff, during the pendency of the action, a nominal sum for alimony and a specified weekly amount for the support of the children. The defendant has appealed, claiming that the court erred in sustaining the plaintiff's demurrer to the plea in abatement and that the court was without jurisdiction to enter the order for alimony and support pendente lite.

Jurisdiction to grant a divorce is founded on domicil. If there is the necessary domicil and the requirements of our statutes as to notice to an absent or nonresident defendant are complied with, the court has jurisdiction to grant the divorce. Cikora v. Cikora, 133 Conn. 456, 462, 52 A.2d 310. The Superior Court had jurisdiction of the present action for a divorce, and the court did not err in sustaining the demurrer to the plea in abatement.

An order directing the payment of alimony or support is a judgment in personam. Beardsley v. Beardsley, 144 Conn. 725, 726, 137 A.2d 752. Without personal service upon the defendant, the court has no jurisdiction to enter a judgment in personam unless the defendant appeared voluntarily. Pennoyer v. Neff, 95 U.S. 714, 727, 24 L.Ed. 565; Mendrochowicz v. Wolfe, 139 Conn. 506, 510, 95 A.2d 260; Smith v. Smith, 74 Vt. 20, 21, 51 A. 1060. Constructive service of process on a nonresident defendant is not sufficient to furnish a basis for a judgment in personam, even though it may be shown that the defendant had actual notice of the pending action. Hood v. Hood, 130 Ga. 610, 612, 61 S.E. 471, 19 L.R.A.,N.S., 193; Proctor v. Proctor, 215 Ill. 275, 277, 74 N.E. 145, 69 L.R.A. 673; 2 Nelson, Divorce and Annulment (2d Ed.) § 14.12. While a court is powerless to enter a personal decree against a nonresident defendant based solely on constructive service, it has power to deal with the defendant's property within the jurisdiction of the court. Constructive service of process upon a defendant in a proceeding against specific property of that defendant within the jurisdiction will enable the court to render a decree binding on the property. The judgment, when rendered, constitutes a charge to be satisfied out of the property which has been seized. The judgment is quasi in rem. Pennington v. Fourth National Bank, 243 U.S. 269, 272, 37 S.Ct. 282, 61 L.Ed. 713; Pennoyer v. Neff, supra, 95 U.S. 734, 24 L.Ed. 565; Coyne v. Plume, 90 Conn. 293, 300, 97 A. 337; Artman v. Artman, 111 Conn. 124, 130, 149 A. 246.

The plaintiff apparently concedes that there was no personal service of process on the defendant within this state. She claims, however, that the attachment of the defendant's property during the pendency of the action furnished a valid basis for jurisdiction quasi in rem so that the court could properly make the order for alimony and support pendente lite. The defendant has challenged the plaintiff's right to attach his property after the return day and while the action was pending. Such a procedure is clearly authorized by our statute (§ 52-281), and so long as the defendant had a reasonable opportunity to be heard before any order based upon the attachment was made he has no cause to complain. Geary v. Geary, 272 N.Y. 390, 402, 6 N.E.2d 67, 108 A.L.R. 1293 & note, 1302.

The decision of this case turns on the question whether the attachment which the plaintiff purported to make on property of the defendant in this state was invalid because it was not made in accordance with § 52-284, which prescribes in particular detail the requirements for service of a writ of attachment on a nonresident. Section 52-281 specifically states that an order of attachment 'shall be served and returned in the same manner as an original writ of attachment.' The method prescribed under § 52-284 for the attachment of a nonresident's property is exclusive. Since the statute is in derogation of common right and common law, it must be strictly construed. Its requirements may not be disregarded with impunity or waived or changed by any court. Chapel-High Corporation v. Cavallaro, 141 Conn. 407, 410, 106 A.2d 720; Fosdick v. Roberson, 91 Conn. 571, 577, 100 A. 1059; Munger v. Doolan, 75 Conn. 656, 659, 55 A. 169; Ahern v. Purnell, 62 Conn. 21, 24, 25 A. 393; Sanford v. Pond, 37 Conn. 588, 590; Cady v. Gay, 31 Conn. 395, 397.

The officer purported to attach the property in question by leaving in the office of the town clerk of Greenwich 'a true and attested copy of the * * * Application for Attachment, Order of Attachment and Process with [his] doings thereon endorsed.' Thereafter, as directed in the order, he sent by registered mail true and attested copies of the same documents to the defendant at two different addresses in New York City. Under § 52-284, when land of a nonresident is attached, a copy of the process and complaint shall be left in the office of the town clerk of the town where the land lies. A like copy shall be left with the agent or attorney of the defendant in this state. If there is no such agent or attorney, the copy shall be left with the person 'in charge or possession of the estate attached.' If there is no such person, the court before which the action is returnable, or any judge thereof, may order such notice of the pendency of the action to be given to the defendant as the court or judge deems reasonable. That notice, having been given and proved, shall be deemed sufficient service of process in the action, and the attachment shall thereupon become effective against the estate attached and the defendant in the action.

In order that a valid judgment may be rendered against a nonresident upon whom it is claimed that constructive service has been made, § 52-284 must be strictly observed and the facts showing compliance with it must appear of record. Reade v. Indemnity Ins. Co., 121 Conn. 309, 312, 184 A. 646; Watters v. Watters, 210 Ala. 550, 551, 98 So. 813; O'Rear v. Lazarus, 8 Colo. 608, 9 P. 621; Anderson v. Anderson, 229 Ill. 538, 539, 82 N.E. 311; 1 Freeman Judgments (5th Ed.) pp. 687, 688; note, 21 A.L.R.2d 929, 932, 940; see Hyde v. Richard, 145 Conn. 24, 25, 138 A.2d 527; Cugno v. Kaelin, 138 Conn. 341, 343, 84 A.2d 576; Rodriguez v. Rodriguez, 224 N.C. 275, 283, 29 S.E.2d 901. Section 52-284 requires that a specific course be pursued if a man's property is to be taken from him without jurisdiction of his person. It recognizes no equivalents and admits no evasions. Nothing less than, or different from, that which the statute prescribes can satisfy its requirements, even though substantially the same ends have been accomplished. Munger v. Doolan, supra, 75 Conn. 660, 55 A. 170. The copies referred to in the statute must be true and sttested copies, as in the case of service on a resident of this state. This procedure has long been the established law. Cady v. Gay, supra, 31 Conn. 396. The return of service of process must show clearly and fully the manner in which the service was made. 72 C.J.S. Process § 95, p. 1132.

The order of notice of the attachment in this case was not made in conformity with the statutory requirements. Before such an order of notice may be issued, there must be an application for the order and there must be a finding, after...