Mejias v. Sebastian, No. FA98-0116648 (CT 12/1/2004)
| Decision Date | 01 December 2004 |
| Docket Number | No. FA98-0116648,FA98-0116648 |
| Court | Connecticut Supreme Court |
| Parties | Marilyn Mejias v. Don Ricardo Sebastian Opinion No.: 86711 |
LIFSHITZ, MAGISTRATE.
The court has before it the plaintiff's motion for contempt against Don Ricardo Sebastian dated June 12, 2002, alleging failure to pay a child support order and an accrued arrearage of over $118,000.00. Don Ricardo Sebastian, by his counsel, has filed a motion to dismiss and also a motion to open the default paternity judgment. After numerous scheduling delays, a full contested hearing was held over several days, concluding on November 7, 2002.1
The procedural history of the file reveals that on August 5, 1998 the Department of Social Services commenced a paternity petition pursuant to General Statutes §46b-162. The petition alleged that the named plaintiff, Marilyn Mejias, is the mother of the minor child Shiana Marie Sebastian, born October 6, 1996. It is alleged that the plaintiff was unmarried at the time of birth, and that the child's father is one "Don Ricardo Sebastian, 56 Meetinghouse Lane, Ledyard, CT 06339."
The petition was served by an investigator of the Department of Social Services.2 The return of service indicates that a copy of the petition, order and summons were left at the usual place of abode of "Don Ricardo `Rick' Sebastian" at 56 Meetinghouse Lane, Ledyard, CT at 4:00 p.m. on December 4th, 1998. The investigator added a cryptic notation: "verified by cousin." The hearing date indicated on the summons was January 8, 1999. The original petition, order and summons together with the return of service were timely filed with the court cleric.
On the appointed court date the named plaintiff, Marilyn Mejias appeared in court. Because she was then a minor, a guardian ad litem was appointed for her. The defendant did not appear. The court, Langley, F.S.M., found that there was valid abode service and that the defendant was not in the military service and then continued the matter for further proceedings to February 5, 1999. On February 5, the court, Alvord, F.S.M., found that the defendant had notice of the hearing but failed to appear. Testimony was presented by the plaintiff, after which the court entered a judgment of paternity, holding that the defendant is the father of Shiana. The case was continued again for financial orders.
On March 5, 1999 once again the plaintiff was present with her mother, who was the appointed guardian ad litem, and the defendant failed to appear. The State of Connecticut introduced evidence that the defendant was a member of the Mashantucket Pequot Tribal Nation. The State further introduced evidence (State's Exhibit A) in the form of an earnings history statement which disclosed the defendant's income from the tribe. For the period from May 2, 1998 until August 29, 1998 the statement indicated that the tribe had provided $91,460.67 to the defendant. Over the 18 weeks disclosed, the average weekly gross income was $5,081.15. The plaintiff mother's gross and net income was zero. The court, Alvord, F.S.M., ordered the defendant to pay $947.00 per week child support plus $189.00 per week on the arrearage.3 The court found arrearages in the amounts of $71,972 to the plaintiff and $46,403 to the State of Connecticut.
The assistant attorney general sent a notice of the default order pursuant to General Statues §52-362.4 The notice was sent by certified mail to the same address at which the original process was served. It was signed by a "Donna Sebastian" and filed with the court on April 9, 1999.
On May 10, 2000 a support enforcement officer, Sylvia Carver, served the defendant in hand with a contempt citation alleging failure to pay the child support order. The citation alleges the amount of the order (stated as $1,136 per week which is the total of the $947 weekly child support plus the $189 per week on the arrearage) and claims a total arrearage of $177,089. The citation was returnable to this court for a hearing on December 12, 2001. The defendant did not appear on that date, but the citation was marked off by the court.5
In June 2002, the plaintiff, by her counsel, issued another contempt citation. The return of the State Marshal states that service was made "personally with the defendant . . . at the current home of the defendant at 56 Meetinghouse La., Ledyard" on July 6, 2002. That citation commenced the sequence of current issues before the court. On July 30, 2002 the defendant's counsel filed an appearance. Thereafter, defendant, by his counsel, filed a Motion to Dismiss dated September 17, 2002 together with a Supporting Memorandum of Law. The plaintiff, in response, filed a written objection to the Motion to Dismiss, with supporting memorandum. On October 1, 2002 the defendant filed a Motion to Set Aside or Open Judgment. Subsequently, the State, by the Assistant Attorney General, and the plaintiff, by her counsel, have filed written objections to the motion to open, with supporting memorandum of law, thus joining the issues.
The plaintiff objects to the Motion to Dismiss and has raised procedural and jurisdictional issues. Initially, as the plaintiff asserts, the defendant's motion is unclear as to whether it seeks to dismiss the entire action, or merely the pending contempt citation. The face of the motion states a demand that "the court dismiss the pending Motion for Contempt (filed June 10, 2002)" (emphasis and parenthesis in original). Yet the substantive claims in the motion mostly appear to relate to a challenge to the validity of the initial process rather than the contempt citation. Accordingly, although the motion does not effectively differentiate which claims apply to which proceeding, the court will consider the motion to dismiss as applying to both the contempt citation and the original action.
The plaintiff argues that the defendant failed to comply with the requirements of Practice Book §10-31 and 11-10 which require the moving party to file a memorandum of law and supporting affidavits. The defendant did file a document on September 17, 2002 entitled "Supporting Memorandum of Law" and another document on October 1, 2002 entitled "Certification of Complainant's Attorney" which defendant argues substantially complies with the practice rules.
The plaintiff rejoined: "The Defendant's so-called memorandum of law is absolutely devoid of any legal authority to support his Motion to Dismiss which accounts in large portion for the difficulty in determining the basis for the Motion to Dismiss." It is true that the documents filed by the defendant fall short of reasonable expectation of supporting memoranda and affidavits. The document labeled "memorandum" contains no supporting authority—no cases are cited, and the only reference to the law is a rote listing of the several sections of General Statutes which relate to the basis of the action and service of process. A recitation of claimed facts follows. This section might be more appropriate in satisfaction of the affidavit requirement except that it is not verified under oath. The same may be said for the several appended documents. The document entitled "Certification" repeats the "memorandum" almost verbatim, with an added statement by counsel that he believes the stated facts to be true. No part of either document is sworn to by the defendant.
The defects raised by the plaintiff are not mere technicalities. The failure of the defendant to personally verify under oath that there is a factual basis for his defense is a serious omission. So is the absence of any substantial legal argument. Nonetheless, the court allowed the defendant to proceed on the substance of the motion: that the person now before the court has a different name than the person served and against whom judgment entered; that the defendant was not properly served the original process and had no notice thereof; and that the financial orders were based on outdated, or incorrect information.
The defendant also failed to comply with Practice Book §10-30 which requires that a defendant seeking to contest the court's jurisdiction must do so within thirty days of filing an appearance.6 The plaintiff argues that the court has no authority to consider the motion to dismiss because thirty days after the filing of counsel's appearance, any claims addressed to in personam jurisdiction are deemed waived.
A claim of lack of subject matter jurisdiction cannot be waived. If subject matter jurisdiction is implicated, the motion must be dismissed. Practice Book §10-33. On the other hand, lack of jurisdiction over the person or insufficiency of service of process is waived if a motion to dismiss is not filed within thirty days of an appearance or in the proper sequence. Practice Book §10-32.
"A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy." Figueroa v. C&S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1997). "Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged." Demar v. Rocky Hill Open Space & Conservation Commission, 211 Conn. 416, 425, 559 A.2d 1103 (1989); Stewart-Brownstein v. Casey, 53 Conn.App. 84, 88, 728 A.2d 1130 (1999).
Where the writ of summons was not signed by a commissioner of the Superior Court or the clerk of the court thus failed to comply with General Statutes §52-45a and Practice Book §8-1, it was nonetheless held that the defect did not deprive the court of subject matter jurisdiction, only of jurisdiction over the person, which was waived when the defendants filed appearances. "Defects in process do not deprive a court of subject matter jurisdiction." Plasil v. Tableman, 223 Conn. 68, 78, 612 A.2d 763 (1992); Bridgeport v. Debek, 210 Conn. 175, 178, 554 A.2d 728...
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