Cato v. Cato

• Decision Date: 21 May 1992
• Docket Number: No. 10156,10156
• Citation: 27 Conn.App. 142,605 A.2d 558
• Court: Connecticut Court of Appeals
• Parties: Judith A. CATO v. Herbert J. CATO, Jr.

Page 558

605 A.2d 558

27 Conn.App. 142

Judith A. CATO v. Herbert J. CATO, Jr.

No. 10156.

Appellate Court of Connecticut.

Argued Nov. 6, 1991.

Decided March 24, 1992.

Certification Granted May 21, 1992.

William H. Meanix, Jr., North Conway, N.H., for appellant (defendant).

John K. Currie, with whom, on the brief, was Courtney B. Bourns, West Hartford, for appellee (plaintiff).

Before NORCOTT, FOTI and GEEN, JJ.

FOTI, Judge.

The defendant appeals from the judgment dissolving the parties' marriage. He claims that the trial court improperly determined that the process and service of process were sufficient, and that the court had personal jurisdiction over him. We affirm the judgment of the trial court.

The following undisputed facts are relevant to this appeal. The parties were married in Amsterdam, New York, on November 12, 1965. In 1970, they purchased a home in Bloomfield and were domiciled there until their separation in March, 1989. After the separation, the defendant resided in Texas where he was personally served with divorce papers in-hand by a sheriff of that state on January 3, 1990. The defendant continued to own property in Connecticut. He appeared specially to contest personal jurisdiction, and, on January 22, 1991, the court, Barall, J., denied his motions to dismiss. ¹ Thereafter the court, Steinberg, J., rendered judgment dissolving the parties' marriage and ordered the defendant to pay periodic alimony to the plaintiff in the amount of $630 per week. The court also ordered that the defendant maintain $250,000 in life insurance coverage and name the plaintiff as an irrevocable beneficiary, convey his interest in the marital home to the plaintiff, and pay certain counsel fees.

The defendant claims that the court lacked jurisdiction over the complaint as well as personal jurisdiction over the defendant. We do not agree. Mere notice of an action is not sufficient to confer personal jurisdiction over a nonresident defendant. Robertson v. Robertson, 164 Conn. 140, 144, 318 A.2d 106 (1972). "Such jurisdiction over a nonresident requires statutory authorization." Goldstein v. Fischer, 200 Conn. 197, 201, 510 A.2d 184 (1986). Such personal jurisdiction may be allowed pursuant to General Statutes § 46b-46(b), the domestic relations long-arm statute. Jones v. Jones, 199 Conn. 287, 290-91, 507 A.2d 88 (1986).

The defendant correctly asserts that a statutory basis for jurisdiction is mandatory, and that the concept of due process cannot take the place of statutory compliance. We do not agree with the defendant's claim, however, that, under the circumstances of this case, General Statutes § 46b-46(a) ² mandates service of process only by an order of notice and does not permit in-hand service outside of Connecticut on the defendant who is subject to personal jurisdiction under § 46b-46(b). ³ The defendant concedes that he knew of the existence of the complaint; he does not claim that he did not have the opportunity to defend. We conclude that General Statutes § 52-57a ⁴ allows for in-hand service outside of Connecticut on a resident of another state if all of the other requirements of § 46b-46(b) have been satisfied.

Section 46b-46(b) allows a court to "exercise personal jurisdiction over the nonresident party as [to] matters concerning temporary or permanent alimony or support of children, only if: (1) The nonresident party has received actual notice under subsection (a) of this section...." (Emphasis added). ⁵ Subsection (a) confers jurisdiction on a court to entertain complaints for dissolution when the defendant is a nonresident or his whereabouts are unknown. Jones v. Jones, supra, at 290-91, 507 A.2d 88. It also describes methods to be followed to give 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." Id.

Our Supreme Court in Jones addressed the applicability of § 46b-46 to postjudgment modification proceedings in Connecticut dealing with a Connecticut divorce judgment. The court stated that the enactment of a domestic relations long-arm statute respecting family matters demonstrates an intent by our legislature to "exercise its full constitutional power, limited only by the constraints of due process, over nonresidents being sued for nonsupport of their children"; id., at 292, 507 A.2d 88; as well as those being sued for alimony.

We cannot agree with the defendant that § 46b-46(b) should be construed narrowly. Statutes that provide for parental support and maintenance of minor children are to be construed broadly. Id., at 291, 507 A.2d 88.

"The purpose of an order of notice is, of course, to give notice to the party being sued. It is not a mere perfunctory act in order to satisfy the technicalities of a statute, but has, as its basis, constitutional dimensions. 'An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652 , 94 L.Ed. 865 (1950)." Bank Mart v. Langley, 39 Conn.Sup. 198, 199-200, 474 A.2d 491 (1984).

It would be both illogical and unreasonable to construe our domestic relations long-arm statute ⁶ in such a narrow manner as to ignore its very purpose. The defendant agrees that § 46b-46 is permissive and not mandatory but argues that our legislature intended that actual notice by service in-hand should be unacceptable unless a condition precedent occurs, that is, the obtaining of permission of the court by an order of notice. We recognize that in-hand service on a defendant is always the best and highest type of service and should be used, if possible. Smith v. Smith, 150 Conn. 15, 22-23, 183 A.2d 848 (1962). "The concept of jurisdiction over the person encompasses two separate ideas: a basis for jurisdiction, and, more importantly, fair notice to the defendant." Anderson v. Schibi, 33 Conn.Sup. 562, 565, 364 A.2d 853 (1976); D'Occhio v. Connecticut Real Estate Commission, 189 Conn. 162, 172, 455 A.2d 833 (1983). The defendant neither challenges the fact that there was a basis for the trial court's jurisdiction over him under the long-arm statute, nor claims that the actual method used here for giving notice, in-hand service, did not satisfy the constitutional requirement of due process. The process in this matter was correctly served in a prescribed manner, giving the court personal jurisdiction over the defendant, a nonresident, in an action brought under the long-arm statute § 46b-46(b). The court properly found jurisdiction.

The judgment is affirmed.

In this opinion NORCOTT, J., concurred.

GEEN, Judge, dissenting.

The defendant appeals on two grounds from the judgment in this case, which ordered alimony, attorney's fees, and the disposition of real estate and other personal property. The first ground is insufficiency of process; the second is lack of personal jurisdiction.

The parties jointly own a house and resided there for nineteen years as husband and wife until April, 1989. In 1988, the defendant obtained new employment in Texas. The defendant considered Connecticut his residence and domicile until he determined that his wife no longer wanted to live with him. Between 1988 and April, 1989, he lived alone in Texas making trips back home. In April, 1989, after his trip home in March, he changed his residence to Bay City, Texas.

Around Labor Day, 1989, he came back to Connecticut to see if his wife would change her mind and go to Texas with him. As a result of that final refusal, in October, 1989, the defendant instituted a divorce action in Texas in which the plaintiff did not appear.

On December 11, 1989, the plaintiff filed a complaint, returnable January 16, 1990, to the Superior Court in the Judicial District of Hartford-New Britain at Hartford. The summons gave the defendant's address as 1208 Avenue G, Bay City, Texas. The plaintiff's attorney sent the summons and complaint to the sheriff of Matagorda County, Texas. The return states that on January 3, 1990, at 7 p.m., the deputy sheriff delivered to the defendant in person "a true copy of this notice with a true and correct copy of the show cause order attached thereto." It must be noted that no show cause order could be attached to the complaint as none had been sought in the Connecticut court. It is impossible to know, on the basis of the foregoing quote from the sheriff's return, what was served on this defendant. Obviously, the service is insufficient on its face.

The defendant, on January 2, 1991, filed two motions claiming that the plaintiff failed to follow General Statutes § 46b-46(a) and (b). Counsel for the defendant filed a limited appearance for the purpose of contesting only in personam jurisdiction and lack of sufficient service.

The court, Barall, J., denied the motions holding (1) that the parties had separated in March, 1989, and that the Connecticut long-arm statute was applicable because in March, 1989, the parties had been domiciled in Connecticut, (2) that § 46b-46(a) is permissive, and (3) that the defendant had actual notice of the pendency of the action.

Dissolution actions involve legal and equitable relief. The process by which persons are brought to court and the decision the court makes affect the basic structure of society, the family.

Our civil process statutes are intended to provide fairness. General Statutes § 52-57(a) provides that individuals shall be served by leaving a true and attested copy of the complaint with the defendant or at his usual place of abode in this state.

Section 52-57a ¹ allows service on a person domiciled or subject to the jurisdiction of the courts of this state...