Cashman v. Cashman, 14179

Decision Date21 May 1996
Docket NumberNo. 14179,14179
Citation676 A.2d 427,41 Conn.App. 382
CourtConnecticut Court of Appeals
PartiesCharles CASHMAN v. Concetta CASHMAN.

Dianne Andersen, Danbury, with whom, on the brief, was Susan Williams, Stamford, for appellant (defendant).

Patrick R. Gill, for the appellee (plaintiff).

Before LAVERY, LANDAU and SHEA, JJ.

LAVERY, Judge.

The defendant appeals from the judgment of the trial court granting the plaintiff's motion to dismiss on the ground that the court lacks personal jurisdiction over the plaintiff. On appeal, the defendant claims that the trial court improperly (1) found that General Statutes § 46b-46(b) 1 was not applicable to the defendant's motion for modification, (2) found that § 46b-46(b) was not satisfied because Connecticut was not the domicile of both parties at the time of dissolution, and (3) concluded that the exercise of personal jurisdiction over the plaintiff would violate due process. We conclude that the trial court improperly found that it lacked personal jurisdiction over the plaintiff and reverse the judgment of the trial court.

The following facts were presented to the trial court by way of the pleadings and documents accompanying the plaintiff's motion to dismiss. The plaintiff and the defendant were married in 1959 and resided in Connecticut prior to their separation in 1980. After the separation, the plaintiff moved to Ardsley, New York. The defendant has continued to reside in Connecticut. In December, 1980, the plaintiff commenced this action for dissolution of marriage in Connecticut while residing in New York state. On February 9, 1983, the trial court rendered a judgment that, inter alia dissolved the marriage and awarded to the defendant periodic alimony.

On May 26, 1994, the defendant filed a motion for modification of alimony. The plaintiff was personally served with the motion at his home in Purdys, New York. On June 10, 1994, the plaintiff filed a motion to dismiss for lack of personal jurisdiction. On November 4, 1994, the trial court held that it lacked personal jurisdiction over the plaintiff and granted the plaintiff's motion to dismiss. In its memorandum of decision, the trial court found that General Statutes § 46b-46(b) is not applicable to the defendant's motion for modification of alimony because the matter is not one for dissolution, annulment, legal separation or custody. The court also found that the domicile requirement of § 46b-46(b) has not been satisfied because Connecticut was not the domicile of both parties immediately prior to or at the time of dissolution. Finally, the trial court found that it would violate the plaintiff's due process rights to assert jurisdiction in this case. The defendant filed this appeal.

I

The defendant claims that the trial court improperly found that General Statutes § 46b-46(b) is not applicable to the defendant's motion for modification of alimony. The defendant argues that § 46b-46(b) permits Connecticut courts to exercise personal jurisdiction over nonresidents in matters concerning modification of alimony if the nonresident receives actual notice of the proceeding, the party requesting modification is a resident of Connecticut and Connecticut was the domicile of both parties immediately prior to their separation. We agree.

We begin our analysis of § 46b-46(b) by examining the text of the statute. 2 "In interpreting the language of a statute, the words must be given their plain and ordinary meaning and their natural and usual sense unless the context indicates that a different meaning was intended. Caldor, Inc. v. Heffernan, 183 Conn. 566, 570, 440 A.2d 767 (1981). When the language is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature's intent. American Universal Ins. Co. v. Del-Greco, 205 Conn. 178, 193, 530 A.2d 171 (1987). Indeed, [a] basic tenet of statutory construction is that when a statute ... is clear and unambiguous, there is no room for construction.... State v. Genotti, 220 Conn. 796, 807, 601 A.2d 1013 (1992)." (Internal quotation marks omitted.) Oller v. Oller-Chiang, 230 Conn. 828, 848, 646 A.2d 822 (1994). The plain meaning of § 46b-46(b) allows the trial court to "exercise personal jurisdiction over the nonresident party as to all matters concerning temporary or permanent alimony " if the specific notice, residency and domicile provisions are satisfied. (Emphasis added.) We interpret the language of the statute to include matters concerning the modification of alimony.

The plaintiff argues that § 46b-46 applies only to initial divorce proceedings and does not apply to proceedings to modify divorce decrees. The trial court agreed with the plaintiff and held that § 46b-46 is not applicable to the defendant's motion because this matter is not one for dissolution, annulment, legal separation or custody as stated in § 46b-46(a). 3 We conclude that § 46b-46(b) is not limited to the proceedings outlined in § 46b-46(a).

Subsections (a) and (b) of § 46b-46 serve distinct purposes. "Subsection (a) confers jurisdiction upon a court to deal with complaints for dissolution, annulment or legal separation when the defendant is a nonresident or his whereabouts are unknown. Subsection (a) describes the procedures that are to be followed to give such a nonresident party actual notice of the pending proceedings, and authorizes the court to hear the complaint either if the nonresident party has received such notice or if a reasonable effort to afford him notice has been made." Jones v. Jones, 199 Conn. 287, 290-91, 507 A.2d 88 (1986).

Section 46b-46(b) is a long arm statute applicable to all matters concerning alimony and support, and is not limited to complaints for dissolution, annulment, legal separation and custody. Subsection (b) allows a court to assert personal jurisdiction over a nonresident defendant for judgments that operate in personam and bind the obligor personally; Beardsley v. Beardsley, 144 Conn. 725, 726-27, 137 A.2d 752 (1957); and imposes greater requirements than does subsection (a). In addition to the notice requirements identified in subsection (a), the party requesting alimony must meet the residency requirement of General Statutes § 46b-44 and show that Connecticut was the domicile of both parties immediately prior to or at the time of their separation.

In Jones v. Jones, supra, 199 Conn. at 294, 507 A.2d 88, our Supreme Court held that § 46b-46(b) permits a trial court to modify a dissolution judgment to require a nonresident defendant to pay child support if the nonresident had actual notice of the modification proceedings. We see no reason that our Supreme Court's reasoning in Jones is not equally applicable to modification of a judgment for the payment of alimony. We conclude that the trial court improperly found that § 46b-46(b) was inapplicable to the defendant's motion for modification of alimony.

II

The defendant claims that the trial court improperly concluded that the domicile requirement of § 46b-46(b) was not satisfied because Connecticut was not the domicile of both parties immediately prior to or at the time of dissolution. The defendant argues that § 46b-46(b) does not require that both parties be domiciled in Connecticut at the time of dissolution, but requires that both parties be domiciled in Connecticut at the time of their separation. We agree.

The plain language of § 46b-46(b) states that the operative inquiry to determine whether long arm jurisdiction exists in this case as to matters concerning alimony or child support is whether Connecticut "was the domicile of both parties immediately prior to or at the time of their separation." This language is plain and unambiguous, and the legislature intended that the trial court's inquiry should focus on the time of the parties' separation, not the time of dissolution. In this case, it is undisputed that Connecticut was the domicile of both parties immediately prior to their separation in 1980. It is also undisputed that the defendant meets the residency requirements of § 46b-44 and that the plaintiff received actual notice. We conclude, therefore, that the statutory requirements of § 46b-46(b) have been met.

III

Having concluded that the requirements of § 46b-46(b) have been satisfied, we shift our inquiry to whether the exercise of personal jurisdiction in this case comports with the principles of due process. See Frazer v. McGowan, 198 Conn. 243, 252, 502 A.2d 905 (1986); Gaudio v. Gaudio, 23 Conn.App. 287, 298, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990). The trial court held that the due process clause precluded it from exercising personal jurisdiction over a nonresident in an action to modify a judgment. We conclude that the due process clause is not violated because the plaintiff purposefully availed himself of the benefits and protections of the laws of Connecticut when he brought this action for dissolution of the marriage.

The due process clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S.Ct. 2174, 2181-82, 85 L.Ed.2d 528 (1985). The United States Supreme Court has held that the test to be applied in considering the reach of personal jurisdiction is whether (1) the nonresident party has created a substantial connection to the forum state by action purposefully directed toward the forum state or otherwise invoking the benefits and protections of the laws of the state, and (2) the exercise of jurisdiction based on those minimum contacts would not offend traditional notions of fair play and substantial justice. Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 111-12, 107 S.Ct. 1026, 1031-32, 94 L.Ed.2d 92 (1987); Burger King Corp. v. Rudzewicz, supra, 471 U.S....

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