Cato v. CatoCato v. Cato
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- Before:
- Berdon
Lead Opinion
Thе sole issue in this appeal is whether an order of notice is necessary to meet the jurisdictional requirements of
The following facts are undisputed. The defendant, Herbert J. Cato, and the plaintiff, Judith A. Cato, were married in New York in 1965. They purchased a home in Bloomfield in 1970 and were domiciled there until their separation in March, 1989. After their separation, the defendant moved to Texas where he was personally served with a writ, summons and complaint brought by the plaintiff, seeking a dissolution of the marriage. The defendant was served in-hand, by a Texas sheriff, a process server. The defendant appeared specially to contest personal jurisdiction.2 The defendant also filed two motions to dismiss,3 both of which were denied by the trial court, Barall, J., on the ground that the order of notice requirement in
After hearing the merits of the case, the trial court, Steinberg, J., rendered judgment dissolving the marriage of the parties. The trial court ordered the defendant to pay periodic alimony to the plaintiff, to maintain life insurance coverage for the benefit of the plaintiff, to convey to the plaintiff his interest in the family home, and to pay attorney’s fees. The defendant appealed to the Appellate Court, claiming that “the trial court improperly determined that the process and service of *4process were suffiсient, and that the court had personal jurisdiction over him.” Cato v. Cato, 27 Conn. App. 142, 143, 605 A.2d 558 (1992). A divided Appellate Court affirmed the judgment of the trial court. The defendant petitioned this court for certification. We granted his petition, limited to the following issue: “Was the divided Appellate Court correct in holding in a claim for dissolution that
The defendant does not challenge the constitutionality of
*5At issue is the construction to be afforded
Neither party disputes that the first sentence of
This court has often held that “when the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.” (Internal quotation marks omitted.) Weinberg v. ARA Vending Co., 223 Conn. 336, 341, 612 A.2d 1203 (1992). In this case, the plain language of the statute does not support the defendant’s contention that an order of notice is mandatory. As noted above, the first sentence of
Our reading of the statute is consistent with our holding in Smith v. Smith, 150 Conn. 15, 183 A.2d 848 (1962). In Smith, this court held that the trial court had jurisdiction to render a decree of separation and in personam jurisdiction to order a money judgment for alimony pendente lite following abode service on a defendant who resided in Connecticut but was absent from the state when the service was made. We examined the language of
We note, additionally, the narrow construction advanced by the defendant would serve no practical function. The purpose of an order of notice is to ensure that the defendant actually receives notice. See 1 W. Moller & W. Horton, Connecticut Practice Book Annotated (3d Ed. 1989) § 199, comment. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950). In this case, the defendant received in-hand service of process. We have often held that in-hand service оf process is the “best and highest type of service” and should be used whenever possible. Smith v. Smith, supra, 22-23. An order of notice could have done nothing more to ensure that the defendant actually received notice. *9Accordingly, it would ignore the very purpose of the statute to construe
Furthermore, the defendant advances no policy reason for mandating an order of notice other than that it allows the Superior Court to maintain control over these procedures. This control is effectively exercised under
We conclude that in a case such as this, where service of process can be accomplished by the most reliable means—that is, in-hand service of process by a process server in accordance with § 52-57a—an order of notice is not required pursuant to
The judgment is affirmed.
In this opinion Peters, C. J., and Katz, J., concurred.
Notes
“(b) The court may exercise personal jurisdiction over the nonresident party as matters concerning temporary or permanent alimony or support of children, only if: (1) The nonresident party has received actual notice under subsection (a) of this section; and (2) the party requesting alimony or support of children meets the residency requirement of section 46b-44; and (3) this state was the domicile of both parties immediately prior to or at the time of their separation.”
After the trial court decided this case,
Although the defendant in this case appeared specially, a defendant may contest jurisdiction “even after having entered a general appearance . . . by filing a motion to dismiss within thirty days of the filing of an appearance.”
The motions to dismiss were entitled “Motion to Dismiss for Insufficiency of Process and Insufficiency of Service of Process,” and “Motion to Dismiss for Lack of Personal Jurisdiction over Defendant.”
Of course, in-hand service of process is authorized as a means of service for persons in this state.
The defendant concedes that the requirements of
Although the statutory section has been renumbered, its language remains substantively similar.
The dissent’s attempt to distinguish our holding in Smith v. Smith, 150 Conn. 15, 183 A.2d 848 (1962), on the ground that the defendant in Smith was domiciled in Connecticut eludes us.
An additional means of control is provided by
The defendant argues that Bank Mart v. Langley, 39 Conn. Sup. 198, 474 A.2d 491 (1984), makes an order of notice a prerequisite to personal service made under
Dissenting Opinion
with whom
Callahan, J.,joins, dissenting. The majority opinion: (1) ignores the relevant historical background of
First, the majority ignores the historical background of
This state of affairs was not due to any constitutional limitation; rather, it was because Connecticut had not *12seen fit to exercise, through statute, its constitutional power to obtain personal jurisdiction over such marital nondomiciliaries. Thus, although a Connecticut wife (typically) could dissolve her marriage to her absent husband, she could not, in the context of the dissolution proceedings, secure enforceable alimony or support orders.
Hence the enactment in 1975 of Public Act No. 75-276, which redesignated
*13This history makes clear that the purpose of
The majority, however, holds that a type of service of notice never before countenanced under
This leads to my second criticism of the majority opinion: the opinion renders superfluous the critical language, “under subsection (a) of this sеction,” and fails to read the entire context of subsection (a). The critical language involved refers, not only to the defendant’s receipt of actual notice, as the majority *14holds, but to the fact that such notice must have been received “under subsection (a).” The only notice provided for under subsection (a) is notice pursuant to an order of notice. That is the only type of notice that subsection (a) had ever provided for, and that is the type of notice to which the phrase, “under subsection (a),” refers. The majority reads that phrase, however, as referring only to the second sentence of subsection (a), divorced from the first and third sentences.5
This analysis leads, in turn, to my third reason for disagreement with thе majority: its quotation from our decision in Jones v. Jones, 199 Conn. 287, 291, 507 A.2d 88 (1986), while at the same time ignoring the meaning of the very language it quotes. The majority states: “Subsection (a) [of
Indeed, the entire passage from Jones makes the point even more clearly. That passage is as follows: “From this perspective,6 we conclude that the defendant has read
Nor can it tenably be argued that this passage is dictum. Although the precise issue in Jones was different from the issue in this case,7 this passage was the *16court’s response to the defendant’s argument that “a court’s lack of personal jurisdiction at the time of the rendering of a decree of dissolution of marriage constitutes a noncurable deficiency that forever precludes personal jurisdiction to modify the decree to impose a support obligation.” Id., 290. It cannot be that the legislature intended subsection (b) to incorporate “the manner in which notice should be given to a nonresident defendant against whom a nonsuppоrt claim is pending”; id., 292; but did not intend subsection (b) to incorporate the same rules for purposes of the issue in this case, namely, the manner in which notice should be given to a nonresident defendant against whom a dissolution complaint is pending.
Fourth, the majority fails to recognize the legitimate purposes of the statutory requirement of an order of notice pursuant to
I submit that this argument overlooks at least two other practical functions of an order of notice directed to an out-of-state domiciliary. It impresses on that party the seriousness of the summons served upon him, by assuring him that it is not only his marital adversary’s lawyer who is summoning him to appear, but the courts of the state of his former domicile as well.
Furthermore, it lodges in the courts of this state a control over the notice giving procedure that the majority does not address: by requiring that the notice be given pursuant to a judicially authorized order of notice, rather than simply by a Connecticut attorney shipping the complaint to an out-of-state sheriff for ser*17vice, the statute avoids the kind of litigation inducing questions that the majority’s holding is likely to engender.8 It is no answer to this argument, furthermore, to say that we will deal with those questions as they arise, as we sometimes do in appellate opinions. By disconnecting subsection (b) from subsection (a) in the way that the majority has done, it has removed any ascertainable and principled bounds by which these future cases can be determined. By reading subsection (b) to incorporate subsection (a), however, as we did in Jones, trial courts and this court need not decide those questions, and the only cost thereof is to require the Connecticut resident to secure an order of notice— hardly a difficult thing to do.
This leads to my fifth reason: the majority has confused the process of interpreting a long-arm statutе with deciding its constitutionality as applied to the facts of a given case. The majority notes that due process requires notice reasonably calculated to apprise interested parties of the action and afford them an oppor*18tunity to be heard. See Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950). I agree, but due process is irrelevant to this case. It is hornbook law that, in order for the courts of one state to acquire personal jurisdiction over an out-of-state party, two requirements must be met: (1) the forum state’s long-arm statute must be complied with; and (2) there must be sufficient contacts with the forum state. See, e.g., Frazer v. McGowan, 198 Conn. 243, 246, 502 A.2d 905 (1986); Gaudio v. Gaudio, 23 Conn. App. 287, 298, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990). This case involves the first, not the second, requirement.
Sixth, the majority reads
*19Seventh, the majority has read
*20Eighth, the majority’s reliance on Smith v. Smith, supra, is unjustified. Smith involved abode service of a divorce complaint on a Connecticut domiciliary who, two days before the service, had gone to New York City en route to Nevada, but who received actual notice of the action. Id., 17. The court noted specifically that “on the jurisdiction question we are concerned only with service, on a defendant domiciled in Connecticut, by leaving the process at his usual place of abode within that state.” Id., 18.10 The court held that this service of process was sufficient “to give the Connecticut court in personam jurisdiction.” Id., 20. The court also rejected the defendant’s claim that an order of notice under then
I therefore dissent.
Prior to 1977, a plaintiff in a dissolution proceeding could also establish jurisdiction by attaching property of the defendant that was located within the state, and securing a quasi in rem judgment. Carter v. Carter, 147 Conn. 238, 241-42, 159 A.2d 173 (1960). This form of relief, however, became unavailable after the United States Supreme Court’s decision in Shaffer v. Heitner, 433 U.S. 186, 212, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977). See generally note, “Transient Jurisdiction is Here to Stay: Burnham v. Superior Court of California,” 23 Conn. L. Rev. 1125, 1131-37 (1991).
That process, as provided by
In any event, it was unheard of for a plaintiff to institute a dissolution action against an out-of-state domiciliary by simply shipping a copy of the complaint to an out-of-state sheriff for service on the defendant, without an order of notice by our own court.
“(b) The court may exercise personal jurisdiction over the nonresident party as matters concerning temporary or permanent alimony or support of children, only if: (1) The nonresident party has received actual notice under subsection (a) of this section; and (2) the party requesting alimony or support of children meets the residency requirement of
The second sentence of
The “perspective” referred to is the assumption that the legislature, in enacting
The issue in Jones v. Jones, 199 Conn. 287, 287-90, 507 A.2d 88 (1986), was whether, following a decree of dissolution rendered before the enactment of
For example, I suppose that the majority’s reading of the statute would necessarily also sanction service by the Connecticut attorney sending the complaint by certified mail, return receipt requested, without the intervention of an out-of-state sheriff. If the majority is correct in its assertion that all that is required under subsection (b) is actual notice under subsection (a), without regard to how that notice was given, this supposition seems inevitable. If we were the legislature writing such a statute; see, e.g., Tolly v. Department of Human Resources, 225 Conn. 13, 29, 621 A.2d 719 (1993); that might, or might not, recommend itself to us as a sensible policy. I cannot believe, however, that this statutory scheme embodies such a notion, and would require clearer legislative intent to do so before reading a statute to sanction such a radical departure from traditional methods of securing personal jurisdiction over out-of-state parties. Furthermore, what, then, about ordinary mail, where the Connecticut party then telephones the out-of-state party and determines that he did in fact receive the envelope? Why not, also, the Connecticut party simply traveling across state lines and delivering the complaint to her spouse herself? My point is that, if actual notice is the linchpin, and the method is irrelevant—as the analysis of the majority implies—all these questions serve as potential grist for the litigation mill.
The only exception to this statutory scheme for substituted service in this state upon out-of-state parties is
This statute does not apply to this case, however, because the defendant was not “domiciled in or subject to the jurisdiction of the courts of this state” before the service was made upon him. Furthermore, this statute, if anything, undercuts the majority’s reading of
Thus, the majority’s attempt to stretch Smith v. Smith, 150 Conn. 15, 183 A.2d 848 (1962), to fit the facts of this case; see footnote 7 of the majority opinion; ignores the court’s own, appropriate limitation on the scope of its holding.