Carter v. Carter

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

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

[147 Conn. 239]

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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 [147 Conn. 238] BALDWIN, C. J., and KING, MURPHY, MELLITZ, and SHEA, JJ.

[147 Conn. 239] 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 [147 Conn. 240] 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 [147 Conn. 241] 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

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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; [147 Conn. 242] 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),...