Robertson v. Robertson

• Decision Date: 29 November 1972
• Citation: 164 Conn. 140,318 A.2d 106
• Court: Connecticut Supreme Court
• Parties: Sally K. ROBERTSON v. Peter M. ROBERTSON.

Page 106

318 A.2d 106

164 Conn. 140

Sally K. ROBERTSON v. Peter M. ROBERTSON.

Supreme Court of Connecticut.

Nov. 29, 1972.

Irwin J. Gordon, Bridgeport, with whom, the brief, was Richard K. Mulroney, Bridgeport, for appellant (plaintiff).

Donald A. Browne, Bridgeport, with whom, on the brief, was William T. Browne, Bridgeport, for appellee (defendant).

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

SHAPIRO, Associate Justice.

By writ dated November 30, 1965, the plaintiff brought an action against the defendant in the Superior Court in Fairfield County, seeking a divorce, custody, support and alimony. The sheriff's return attached to the writ indicates that an attachment was made against the defendant's real estate in Greenwich and that an attempt to serve him there was unsuccessful. The return states that 'the defendant has left my precincts to places unknown to me and there is no one in charge of the property attached who would accept service.' On December 2, 1965, the plaintiff submitted an application for an order of notice requesting that notice by registered mail be given the defendant of the commencement and pendency of the action 'because said defendant is not (a) resident or inhabitant in the State, has no agent or attorney in the State, and no person is in charge or possession of the estate attached.' The application also requested that such notice be addressed to the defendant at '80 Federal Street, Boston, Massachusetts.' The court ordered such notice. On June 24, 1966, the defendant having failed to appear, the plaintiff obtained a decree of divorce in which the judgment included orders for alimony and support. The judgment also recited that the court found that at the date of the complaint 'the defendant was a resident of Boston in the state of Massachusetts'; that the writ and complaint were served on him pursuant to the order of notice and that he actually received notice that the complaint was pending.

On October 26, 1970, the plaintiff petitioned the court to cite the defendant for contempt on the claim that he had failed to comply with its order for support and alimony. The court order was directed to the defendant at an address in Greenwich, there to be served upon him. On January 28, 1971, the defendant filed a special appearance 'to contest jurisdiction' and further moved the court 'to correct the judgment . . . of June 24, 1966 by eliminating any provision for alimony as the Court has never had in personam jurisdiction' of him. On May 13, 1971, the court denied the plaintiff's motion for contempt and granted the defendant's motion. From a judgment rendered thereon the plaintiff has appealed to this court.

The court made no finding, although, ordinarily, one is essential to test the conclusion reached. Practice Book § 609; Wagner v. Zoning Board of Appeals, 153 Conn. 713, 714, 216 A.2d 182; Gitilitz v. Davis, 146 Conn. 280, 281, 150 A.2d 213; Mendrochowicz v. Wolfe, 139 Conn. 506, 509, 95 A.2d 260; Maltbie, Conn.App.Proc. § 126. The plaintiff did not file either a request for a finding or a draft finding. Consequently, no finding was made. The absence of a finding does not necessarily preclude action by this court. We are, however, limited in our inquiry to the material facts which appear on the record. Wooster v. Wm. C. A. Fischer Plumbing & Heating Co., 153 Conn. 700, 703, 220 A.2d 449; State v. Keating, 151 Conn. 592, 595, 200 A.2d 724, cert. denied, sub nom. Joseph v. Connecticut, 379 U.S. 963, 85 S.Ct. 654, 13 L.Ed.2d 557; Maltbie, Conn.App.Proc. § 126. Defective as this procedure is, it, nevertheless, makes possible the determination of this appeal. Thus, the record discloses that the court by its judgment of May 13, 1971, found the issues for the defendant. This means that the allegations in the defendant's motion to correct the judgment were found for the defendant. See Mendrochowicz v. Wolfe, supra, 139 Conn. 509-510, 95 A.2d 260. The question presented for decision, therefore, is whether the facts alleged in the motion to correct the judgment ¹ justify the conclusions reached by the court denying the plaintiff's application to cite in the defendant for contempt and modifying the judgment of June 24, 1966, by deleting all provisions relating to alimony or other provisions based on in personam jurisdiction.

The court had before it the sheriff's return showing that an attachment was made against the defendant's Greenwich real estate and that the defendant had left his precincts for places unknown and that no one was in charge of the attached realty who would accept service; the allegations in the plaintiff's application for an order of notice that the defendant 'is not (a) resident or inhabitant of his State, (and) has no agent or attorney in the State and no person is in charge or possession of the estate attached'; the application of the plaintiff requesting that notice be given to the defendant at a Boston address; and the recital in the court's 1966 divorce decree that the defendant was a resident of Boston. From these it is clear that the court acquired no jurisdiction to render a judgment on June 24, 1966, binding the defendant personally, since he was a nonresident on whom personal service had not been made, although it did have jurisdiction in rem over the attached realty. An order directing the payment of alimony or support is a judgment in personam. Beardsley v. Beardsley, 144 Conn. 725, 726--727, 137 A.2d 752. Without personal service on the defendant, the court on June 24, 1966, had no jurisdiction to render a judgment in personam unless the defendant appeared voluntarily. Pennoyer v. Neff, 95 U.S. 714, 727, 24 L.Ed. 565; Carter v. Carter, 147 Conn. 238, 241, 159 A.2d 173; Mendrochowicz v. Wolfe, supra, 139 Conn. 510, 95 A.2d 260....