Morabito v. Wachsman

• Decision Date: 16 August 1983
• Citation: 191 Conn. 92,463 A.2d 593
• Parties: Norma F. MORABITO v. Harvey F. WACHSMAN.
• Court: Connecticut Supreme Court

Page 593

463 A.2d 593

191 Conn. 92

Norma F. MORABITO v. Harvey F. WACHSMAN.

Supreme Court of Connecticut.

Aug. 16, 1983.

[191 Conn. 93] William S. Herrmann, Stamford, for appellant (plaintiff in each case).

Robert K. Ciulla, New Haven, with whom, on the brief, was Kathy K. Priest, New Haven, for appellee (defendant in each case).

Before SPEZIALE, C.J., and PETERS, ARTHUR H. HEALEY, PARSKEY and GRILLO, JJ.

SPEZIALE, Chief Justice.

These two appeals, No. 10922 and No. 10923, were heard together because they involve the same parties and present the common question of the effect of a prior determination of jurisdiction on a subsequent proceeding in another state to enforce a judgment. In No. 10922 the plaintiff is appealing from the trial court's refusal to enforce a 1972 Nevada child support arrearage judgment under Connecticut's Enforcement of Foreign Matrimonial Judgments Act, General Statutes §§ 46b-70 through 46b-75. ¹ In No. 10923 the plaintiff is appealing from the trial court's refusal to enforce a 1979 Nevada child support arrearage judgment and its denial of her request for current child support. The defendant argued in both cases that Nevada was without personal jurisdiction over him when it entered the child support decree and, therefore In the action to enforce the 1972 judgment the trial court, Novack, J., granted the defendant's motion to dismiss for lack of jurisdiction in Nevada. ² In the action to enforce the 1979 judgment the trial court granted summary judgment for the defendant on the first count, holding that Nevada lacked jurisdiction over the defendant, and dismissed the second count on the ground that the Connecticut court lacked jurisdiction to award child support for nonresident children. The plaintiff appealed the judgments to this court claiming, inter alia, that the court erred: (1) in its treatment of her actions for arrearages because the issue of jurisdiction had been decided in her favor in the Nevada courts and was res judicata for purposes of full faith and credit; and (2) in dismissing her action for current child support. We agree.

the Nevada judgments are void and not entitled to full faith and credit.

I BACKGROUND

A The 1971 Nevada Divorce Decree and Child Support Order

In 1971, the plaintiff, who resided in Nevada with her three children, was granted a divorce from the defendant by a decree of the District Court of the Eighth Judicial District of the state of Nevada. The defendant, who was not a resident of Nevada at the time the proceeding commenced, did not appear to contest the action. Process was served on the defendant by publication and by the mailing of a copy of the summons and complaint to a relative of the defendant who was unaware of his whereabouts. The divorce decree and a decree ordering the defendant to pay $1000 monthly child support were entered September 17, 1971.

B The 1972 Nevada Child Support Arrearage Judgment

In 1972, the plaintiff made a motion in Nevada to reduce the child support arrearages to judgment. The defendant entered a special appearance to contest the motion, arguing that "the Court had no jurisdiction to enter its Order of child support and the same is void." The defendant filed an affidavit stating that he had never been personally served in the 1971 proceeding, and he also filed a memorandum of law supporting his position. Following a hearing held on March 27, 1972, the Nevada court, "having heard the evidence," found that the defendant had been obligated to pay child support from the date of the 1971 decree. Implicit in the court's order is a finding that the Nevada court did have jurisdiction in the 1971 action. Only by finding jurisdiction over the defendant could the court have made that order. "The question of the ... validity of the order was distinctly presented by the [defendant's response] and necessarily was resolved against him by the judgment affirming the order. Omitting to mention that question in the opinion did not eliminate it from the case or make the judgment of affirmance any the less an adjudication of it." Grubb v. Public Utilities Commission of Ohio, 281 U.S. 470, 477-78, 50 S.Ct. 374, 377-78, 74 L.Ed. 972 (1930). See also State v. Kallio, 92 Nev. 665, 668, 557 P.2d 705 (1976); Clark v. Clark, 80 Nev. 52, 58-59, 389 P.2d 69 (1964). The defendant did not appeal or otherwise challenge this judgment.

C

The 1979 Nevada Child Support Arrearage Judgment

In 1979, the plaintiff again made a motion in Nevada to reduce arrearages to judgment. While the defendant had actual notice of these proceedings, he did not appear

                [191 Conn. 96]  in the 1979 action and judgment was rendered for the plaintiff.   Again, the defendant did not appeal or otherwise challenge this judgment
                

II THE ISSUE OF JURISDICTION IS RES JUDICATA BEFORE THE CONNECTICUT COURT

On June 19, 1980, the plaintiff filed an action to enforce her 1972 Nevada judgment in Connecticut pursuant to General Statutes §§ 46b-70 through 46b-75, the Enforcement of Foreign Matrimonial Judgments Act. ³ On September 8, 1980, in a separate action in Connecticut, the plaintiff brought suit on the 1979 Nevada judgment and also brought suit in a second count for current support.

The defendant here in Connecticut contested both actions on the Nevada judgments on the basis that the state of Nevada had no jurisdiction over him in 1971. The trial court examined the circumstances surrounding the 1971 divorce action and found that Nevada lacked personal jurisdiction over the defendant. Thus, the court held, the 1972 and 1979 Nevada judgments were void. The trial court erred, however, because the issue of jurisdiction was fully and fairly litigated in the 1972 Nevada proceedings. The defendant is barred from raising it anew in these collateral proceedings.

The full faith and credit clause, article IV, § 1 of the United States constitution, requires that judgments of the courts of each state be given the same faith, credit, and effect in sister states as they have by law or custom in the courts of the state rendering them. Durfee v. Duke, 375 U.S. 106, 109, 84 S.Ct. 242, 244, 11 L.Ed.2d 186 (1963); Williams v. North Carolina, 325 U.S. 226, 228, 65 S.Ct. 1092, 1094, 89 L.Ed. 1577 (1945); Milliken v. Meyer, 311 U.S. 457, 462, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940); Stoll v. Gottlieb, 305 U.S. 165, 170, 59 S.Ct. 134, 136-37, 83 L.Ed. 104 (1938); Milwaukee County v. M.E. White Co., 296 U.S. 268, 273, 56 S.Ct. 229, 232, 80 L.Ed. 220 (1935); Roche v. McDonald, 275 U.S. 449, 451, 48 S.Ct. 142, 143, 72 L.Ed. 365 (1928). The United States Supreme Court has stated that recovery upon a judgment may be resisted if the court that rendered it was without jurisdiction. Milwaukee County v. M.E. White Co., supra, 296 U.S. at 275, 56 S.Ct. at 233. The defendant contends that the Nevada judgments are not valid because Nevada lacked jurisdiction over him in the original proceedings. The defendant, however, has already had an opportunity for full hearing on this precise issue in the courts of Nevada.

"When a defendant appears in an action to object that the court has no jurisdiction over him and the court overrules the objection and renders judgment against him, the local law of the State where the judgment was rendered determines, subject to constitutional limitations, whether the parties are precluded from attacking the judgment collaterally on the ground that the court had no jurisdiction over the defendant." 1 Restatement (Second), Conflicts § 96. In conformity with this view, we look to Nevada law to determine whether the defendant, having already litigated in Nevada the question of Nevada's jurisdiction over him, may now collaterally attack the judgments on the basis of jurisdiction.

In Paradise Palms Community Association v. Paradise Homes, 89 Nev. 27, 505 P.2d 596, cert. denied, 414 U.S. 865, 94 S.Ct. 129, 38 L.Ed.2d 117 (1973), the Supreme Court of Nevada barred a claim of lack of jurisdiction in a collateral action. In the original action in that case the defendant moved to set aside a default judgment against it as void because the person served with process was not a person upon whom service was authorized. The court, after a hearing, found against the defendant. In a later collateral action the defendant again objected to the jurisdiction of the court due to lack of proper service. The Nevada court held that the issue of jurisdiction had been In a more recent case the Supreme Court of Nevada affirmed that "[t]he doctrine of res judicata proscribes the hearing of an issue determined by a court of competent jurisdiction in a previous proceeding between the same parties in the same cause of action.... This doctrine applies to questions of jurisdiction with the same force as to other legal issues." (Emphasis added and citations omitted.) Alitalia-Linee Aeree Italiane-S.p.A. v. Second Judicial District Court of the State of Nevada, 92 Nev. 638, 640, 556 P.2d 544 (1976). See also Durfee v. Duke, supra, 375 U.S. at 111, 84 S.Ct. at 245; Williams v. North Carolina, supra, 325 U.S. at 230, 65 S.Ct. at 1095; Vecchione v. Wohlgemuth, 426 F.Supp. 1297, 1309, (E.D.Pa.), aff'd, 558 F.2d 150 (3d Cir.), cert. denied sub nom. Beal v. Vecchione, 434 U.S. 943, 98 S.Ct. 439, 54 L.Ed.2d 304 (1977); Breslerman v. American Liberty Ins. Co., 218 F.Supp. 345, 346-47 (S.D.N.Y.1963), aff'd, 326 F.2d 756 (2d Cir.1964); Cascade Chemical Coatings, Inc. v. Wellco Chemical Products Co., 15 Ill.App.3d 1056, 1057, 305 N.E.2d 595 (1973), cert. denied, 419 U.S. 841, 95 S.Ct. 72, 42 L.Ed.2d 69 (1974); Vander v. Casperson, 12 N.Y.2d 56, 59, 236 N.Y.S.2d 33, 187 N.E.2d 109 (1962). Because the defendant would be precluded in Nevada from again litigating the question of jurisdiction in a collateral proceeding, whether or not that question had been rightly decided originally, he may not do so here. ⁴

                determined in the prior proceeding and was res judicata in the later proceeding.   Id., 89 Nev. at 30-32,

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