Kuser v. Orkis

• Decision Date: 01 July 1975
• Court: Connecticut Supreme Court
• Parties: Blanche KUSER v. Walter ORKIS.

Page 943

362 A.2d 943

169 Conn. 66

Blanche KUSER v. Walter ORKIS.

Supreme Court of Connecticut.

July 1, 1975.

Harold B. Yudkin, Derby, for appellant (defendant).

Edmund C. Walsh, Asst. Atty. Gen., with whom, on the brief, were Carl R. Ajello, Atty. Gen., and Paul M. Shapiro, Asst. Atty. Gen., for appellee (plaintiff).

Before HOUSE, C.J., and LOISELLE, MacDONALD, BOGDANSKI and LONGO, JJ.

HOUSE, Chief Justice.

The plaintiff, Blanche Kuser, began this action in 1963 pursuant to the provisions of what was then chapter 911 of the General Statutes, alleging that the defendant, Walter Orkis, was the father of her child born May 20, 1962, which child, when born, was a bastard, and that she was again pregnant with child begotten by the defendant, which child when born would also be a bastard. The plaintiff sought the arrest of the defendant and other relief as provided by statute. Pursuant to § 52-435, a provision of chapter 911, a warrant was issued by the plaintiff's attorney as a commissioner of the Superior Court for the arrest of the defendant. The defendant was arrested, brought before a judge of the Circuit Court on October 2, 1963, and released upon posting a $500 bond pending a hearing on probable cause. On the same day as the arrest, he was also served personally with a true and attested copy of the writ, summons and complaint in the present action in response to which he entered a general appearance on December 10, 1963.

Thereafter, in January and February, 1964, the defendant successively demurred to the complaint, moved for summary judgment, and moved to dismiss the complaint, all predicated on the grounds that §§ 52-435, 52-436 and 52-443 of the bastardy statutes as they then read violated the fourteenth amendment to the constitution of the United States, that § 52-443 violated the thirteenth amendment to the constitution of the United States which forbids involuntary servitude, and that these same sections of the statutes violated the constitution of Connecticut, article first, §§ 8, 9, 10 and 12. In July, 1965, the court (O'Brien, J.) overruled the demurrer and dismissed the motion for summary judgment and the motion to dismiss.

On September 10, 1965, the defendant closed the pleadings by filing his answer which denied the essential allegations of the plaintiff's complaint. Ten days later, on September 20, 1965, the plaintiff claimed the case for the trial list and it was accordingly placed on the docket as a court case. General Statutes § 52-215. Subsequently, on December 8, 1965, the defendant, acting by his present counsel, entered a second general appearance in the case and on March 15, 1966, the plaintiff again claimed the case for the trial list. In August, 1967, the plaintiff amended her complaint to state that the birth of the second child referred to in her complaint had occurred on September 27, 1963. ¹ Thereafter the case lay dormant for five years except that it was by the court discontinued from the docket in 1969, 1970, 1971 and 1972, and each time restored to the docket on motion by counsel. On September 26, 1972, the defendant filed a motion pursuant to the provisions of § 94 of the Practice Book to erase the case from the docket on the reasserted ground that § 52-435 was unconstitutional. The court denied this motion commenting on the 'innumerable motions, pleadings, continuances and changes of counsel for both parties' and the four discontinuances and restorations to the docket. It pertinently observed in its memorandum of decision: 'If a like amount of time is spent on this case in the future, the infant subjects of the suit will have reached the age of majority.' Three days after filing his motion to erase, the defendant filed a 'Not Guilty' answer to the complaint as it had been amended five years previously on August 14, 1967, and also filed a claim for trial by a jury of six. The plaintiff thereupon moved to strike the claim for a jury and the motion was granted on November 27, 1972. The case was reached for trial to the court in July, 1973. The court found that the defendant was the father of the older child and ordered the defendant to pay to the plaintiff medical expenses, counsel fees, costs and support and maintenance for that child until he reached age eighteen. From this judgment the defendant appealed to the Appellate Division of the Court of Common Pleas claiming error in the court's overruling of his demurrer, dismissing his motion for summary judgment and his motion to dismiss, denying his motion to erase and granting the plaintiff's motion to strike his jury claim. The Appellate Division found no error in the trial court's judgment, and this court granted the defendant's petition for certification.

On his appeal to this court the defendant has made no attack on the merits of the court's conclusions as to the defendant's paternity and the provisions of its orders for payment of expenses and support for the older child but has pressed the same claims originally made to the trial court by his demurrer, motion to dismiss and motion to erase. His basic claim is a jurisdictional one-that because the procedure by which the action was commenced pursuant to the provisions of § 52-435-the civil arrest of the defendant-was unconstitutional, the trial court lacked jurisdiction over him, and the unconstitutionality of the initial arrest rendered the final judgment invalid.

Under now repealed § 52-435 of the General Statutes governing bastardy proceedings, a commissioner of the Superior Court had authority, upon complaint under oath by the mother, to issue a warrant and cause the arrest of the putative father. In most cases, as in the present case, the commissioner issuing the warrant was also the plaintiff's attorney. Section 52-435 was repealed by 1965 Public Acts, No. 406 § 8, and what is now § 52-435a substituted for it. This statute omits any authorization for the arrest of the putative father and now provides that paternity proceedings shall be initiated upon the verified petition of the mother filed in the Court of Common Pleas which shall cause a summons to be issued requiring the putative father to appear and show cause why the prayer of the petition should not be granted.

The Appellate Division of the Court of Common Pleas agreed with the defendant's contention that the procedure leading to his arrest was unconstitutional because the determination of probable cause to issue the arrest warrant was not made by a neutral and detached magistrate; Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436; but concluded that, under the circumstances, this did not render the trial court's final judgment invalid. It found no error in the judgment of the trial court and dismissed the appeal.

The purpose of what were formerly called bastardy actions and are now called paternity proceedings is to relieve the public of the burden of supporting an illegitimate child and to provide the mother with assistance in carrying out her obligation of support. State v. Wolfe, 156 Conn. 199, 203, 239 A.2d 509; Pelak v. Karpa, 146 Conn. 370, 372, 151 A.2d 333. It is the long established policy of this state to require a father to support his illegitimate child. State v. Wolfe, supra.

Historically, the action was criminal in form but civil in nature. It is fundamental, however, that the rules governing civil actions apply. As this court observed in Pelak v. Karpa, supra: 'It is settled law that our bastardy procedure (c. 911), while permitting the arrest of the body of the defendant for purposes of security, is fundamentally a civil action, to which the general rules governing civil actions are applicable.' See cases therein cited. The distinction between a body arrest of the defendant for purposes of security and service of civil process to obtain jurisdiction in personam of him was well illustrated by the decision in Copes v. Malacarne, 118 Conn. 304, 172 A. 89. In that case the defendant pleaded in abatement that service made on him was not sufficient to institute a bastardy action as his body was not actually arrested and the only way in which the process was served was by leaving it at his usual place of abode. This court found no error in the decision of the trial court overruling the plea in abatement, noting that '(t)he arrest and detention of the body are for security, and not to give jurisdiction' and '(i)t follows that the suit was commenced . . . upon the day when the copy of the process was left at the usual place of abode of the defendant.' Id., 306, 172 A. 90.

In the present case, personal jurisdiction over the defendant was obtained when he was served with a true and attested copy of the writ, summons and complaint. This service of process gave the court in personam jurisdiction and was valid for that purpose regardless of any irregularity or deficiency in the body arrest of the defendant for security purposes which procedure was not necessary to establish jurisdiction. Copes v. Malacarne, supra. Assuming, arguendo, that the arrest procedure permitted in 1963 by § 52-435 was unconstitutional, that circumstance is unrelated to the in personam jurisdiction of the court acquired by proper service of civil process on the defendant. If any doubt remained as to the court's jurisdiction over the defendant, it was removed by the two general appearances which he entered first on December 10, 1963, and again on December 8, 1965. By his general appearances he submitted himself to the jurisdiction of the court. Fine v. Wencke, 117 Conn. 683, 684, 169 A. 58; see Beardsley v. Beardsley, 144 Conn. 725, 729, 137 A.2d 752; Pavlick v. Meriden Trust & Safe Deposit Co., 139 Conn. 733, 737, 97 A.2d 265; Paiwich v. Krieswalis, 97 Conn. 123, 127, 115 A. 720; Stephenson, Conn.Civ.Proc. §§ 4, 53; Practice Book, Form No. 527.

The defendant, by way of several assignments of error, claims that § 52-443 as it read in 1963 ² and as it remains substantially unchanged...