SUSAN ALEY v. WILLIAM ALEY
(AC 26825)
Appellate Court of Connecticut
Argued May 2—officially released October 10, 2006
97 Conn. App. 850
Jоhn F. Morris, for the appellant (defendant). Howard M. Gould, with whom, on the brief, was Patricia J. Gillin, for the appellee (plaintiff).
Opinion
FLYNN, C. J. The defendant, William Aley, appeals from the judgment dissolving his marriage to the plaintiff, Susan Aley. He claims that the trial court (1) imprоperly proceeded to judgment in his absence, without adequate notice to him or an opportunity to be heard, (2) lacked jurisdiction to order a certain home equity payment obligation to be characterized as spousаl support and nondischargeable in bankruptcy and that the home equity order lacked clarity, and (3) improperly entered certain financial orders without evidentiary support.1 We are not persuaded by the defendant‘s claim concerning lack of notice or his challenge to jurisdiction. However, pursuant to Practice Book § 60-5, we deem it necessary for the proper disposition of this case
The parties were married in July, 1996, and there was one minor child issue of the marriage, who was six years old at the date of dissolution. In November, 2004, the plaintiff cоmmenced her action seeking dissolution of the marriage. The court held a hearing on July 28, 2005, at which the pro se defendant was not present. The plaintiff testified that the defendant was vacationing in Romania and had indicated that he would not be present for the divorce proceeding. Ruling orally, the court stated that it was adopting paragraphs one through twelve, inclusive, of the plaintiff‘s claims for relief, making them the orders of the court and incorporating them by reference into the judgment.2 The court, as requested
in paragraphs one and two of the plaintiff‘s claims for relief, dissolved the parties’ marriage and awarded the parties joint custody of the minor child, with physical residence with the plaintiff and reasonable rights of visitation with thе defendant. The court, by incorporating the remaining paragraphs, entered other financial orders for asset distribution and payment obligations. It made no explicit findings underlying those orders. This appeal followed. Additional facts will be set forth as necessary.
I
The defendant first claims that the court improperly proceeded to judgment in his absence, without adequate notice to him or an opportunity to be heard. We are not persuaded.
At the outset, we note the рrinciples underlying the necessity for adequate and proper notice. “It is the settled rule of this jurisdiction, if indeed it may not be safely called an established principle of general jurisprudence, that no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable oppоrtunity to appear and be heard.” (Internal quotation marks omitted.) Hasbrouck v. Hasbrouck, 195 Conn. 558, 559-60, 489 A.2d 1022 (1985). “It is a fundamental premise of due process that a court cannot adjudicate a matter until the persons directly concerned have been notified of its pendеncy and have been given a reasonable opportunity to be heard in sufficient time to prepare their positions on the issues involved.” (Internal quotation marks omitted.) Roberts v. Roberts, 32 Conn. App. 465, 475, 629 A.2d 1160 (1993).
Our review of the record reveals that the defendant was given more than three months notice of the July 28, 2005 court date. The court stated in its notice, dated April 26, 2005, that “this case is assigned for pretrial and trial to the family limited list on 07/28/05 at 10:00 a.m. . . . You must be ready to proceed with your witnesses and have all required papеrwork prepared!” The plaintiff testified at the hearing that she spoke with the defendant approximately two weeks prior to the court date and that he indicated that he would on vacation and would not be attending the divorce proceeding. The defendant could have made a motion for a continuance, but he did not. “[I]t is the established policy of the Connecticut
II
The defendant next claims that the court did not have jurisdiction to order that certain second mortgage paymеnt obligations were in the nature of spousal support and nondischargeable for bankruptcy purposes. We conclude that the court had jurisdiction. The defendant has not cited any legal authority or provided us with any analysis as to why he сlaims the court did not have jurisdiction. Generally, “[w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abаndoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Merchant v. State Ethics Commission, 53 Conn. App. 808, 818, 733 A.2d 287 (1999). However, “a claim that the court lacks jurisdiction over the subject matter cannot be waived and must be addressed whenever it is brought to the court‘s attention. . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . Accordingly, [t]he subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal.” (Citations omitted; internal quotation marks omitted.) Manifold v. Ragalia, 94 Conn. App. 103, 116-17, 891 A.2d 106 (2006).
It is axiomatic that jurisdiction “involves the power in a court to hear and determine the cаuse of action presented to it and its source is the constitutional and statutory provisions by which it is created.” Connecticut State Employees Assn., Inc. v. Connecticut Personnel Policy Board, 165 Conn. 448, 456, 334 A.2d 909 (1973).
III
We next address the defendant‘s claim that the court improperly entered certain financial orders without evidentiary support. We deem it necessary for the proper disposition of this case to remand for further articulation on two points. First, we direct the court to articulate the value of the marital home, which it found upon the entry of the dissolution decree. Second,
The case is remanded with direction to articulate the value of the parties’ marital home and the defendant‘s gross and net earnings.
In this opinion DiPENTIMA, J., concurred.
MIHALAKOS, J., dissenting in part. The majority concludes that it is necessary, for proper disposition of the claim by the defendant, William Aley, that the trial court was without sufficient evidenсe to render its financial orders for asset distribution and payment obligations, to remand the case for the court to articulate on two points, the value of the marital home and the defendant‘s gross and net earnings. Although I agree with the anаlysis set forth in parts I and II of the majority‘s opinion, I write separately because I respectfully disagree with the majority‘s decision to remand the matter for articulation.
“An appellate court will not disturb a trial court‘s orders [financial or оtherwise] in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . . In determining whether a trial court has abused its broad discretion in domestic rеlations matters, we allow every reasonable presumption in favor of the correctness of its action.
. . . We apply that standard of review because it reflects the sound policy that the trial court has the unique opportunity to view the parties and their testimony, and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, including such factors as the demeanor and the attitude of the parties.” (Citation omitted; internal quotation marks omitted.) Dombrowski v. Noyes-Dombrowski, 273 Conn. 127, 132, 869 A.2d 164 (2005).
Although a court must consider all of the statutory factors for determining alimony and property distribution set forth in
The majority‘s decision to remand suggests its concern either that the court had no evidence of valuation and earnings, or that whatever evidence did exist was insufficient for the entry of its financial orders. Thаt is not the case.
Regarding the distribution of the marital home, the court had before it the defendant‘s financial affidavit, which showed the value of the home, on which it was entitled to rely in awarding the home to the plaintiff, Susan Aley. The court was not requirеd to make explicit reference to the value it assigned to the marital home. Because only one estimate of value was presented to the court, it is clear that this is the value the court chose to adopt.
Moreover, the court had before it the defendant‘s financial affidavit and a child support guidelines worksheet showing the defendant‘s gross and net earnings and the child support to be paid by the defendant in accordance with those earnings. The court was entitled to accept whatever evidence
“When faced with the constraints of incomplete information, a court cannot be faulted for fashioning an award as equitably as possible under the circumstances.” Commissioner of Transportation v. Larobina, 92 Conn. App. 15, 32, 882 A.2d 1265, cert. denied, 276 Conn. 931, 889 A.2d 816 (2005); see also Brycki v. Brycki, 91 Conn. App. 579, 591-92, 881 A.2d 1056 (2005). I bеlieve that no articulation is necessary in the present case and that there was sufficient evidence in the record to support the court‘s orders. For the reasons previously discussed, I respectfully dissent only as to the majority‘s remand for articulation and would affirm the judgment of the trial court.