226 Conn. 1 | Conn. | 1993
Lead Opinion
The sole issue in this appeal is whether an order of notice is necessary to meet the jurisdictional requirements of General Statutes (Rev. to 1989) § 46b-46,
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.
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
The defendant does not challenge the constitutionality of § 46b-46 or suggest that the statutory requirements, if met, do not comport with due process. Rather, the defendant argues that because the statute provides the basis for obtaining jurisdiction, due process requires strict compliance with the methods set forth by the statute. He argues that the statute mandates an order of notice as a condition precedent to actual notice and submits that the plaintiffs failure to comply with this statutory requirement deprived him of his property without due process of law. We conclude that an order of notice under § 46b-46 is permissive, not mandatory, and is not a condition precedent to effective, in-hand service in another state pursuant to § 52-57a, which provides that “[a] person domiciled in or subject to the jurisdiction of the courts of this state . . . may be served with process without the state, in the same manner as service is made within the state, by any person authorized to make service by the laws of the state, territory, possession or country in which service is to be made . . . .”
Section 46b-46 (a) provides: “On a complaint for dissolution, annulment or legal separation, if the defendant resides out of or is absent from the state or the whereabouts of the defendant is unknown to the plaintiff, any judge or clerk of the supreme court or of the superior court may make such order of notice as he deems reasonable. After notice has been given and proved to the court, the court may hear the complaint if it finds that the defendant has actually received notice that the complaint is pending.” (Emphasis added.) Section 46b-46 (b) provides in part: “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 . . . .”
Neither party disputes that the first sentence of § 46b-46 (a) is permissive and merely gives a judge or clerk the option of issuing an order of notice. The second sentence is the source of dispute. The defendant claims that the language “[a]fter notice has been given and proved to the court, the court may hear the complaint if it finds that the defendant has actually received notice” makes an order of notice a necessary prerequisite to a finding of actual notice. He further contends that the personal jurisdiction requirements of subsection (b) cannot be met unless an order of notice is issued pursuant to subsection (a). We disagree.
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 § 46b-46 (a) gives a judge or clerk the option of making an order of notice. The second sentence does not say “after an order of notice”; rather, it provides that after notice has been served and proved to the court, the court must determine whether the defendant had actual notice of the complaint. The phrase “[ajfter notice has been given and proved to the court,” is subordinate to the remainder of the sentence which
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 General Statutes § 46-17,
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 of 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.
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 § 46b-46, which requires that notice be “proved to the court” and that the court find that the defendant has “actually received notice” before the trial court hears the plaintiff on the merits of the case.
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 § 46b-46.
The judgment is affirmed.
In this opinion Peters, C. J., and Katz, J., concurred.
General Statutes (Rev. to 1989) § 46b-46 provides: “(a) On a complaint for dissolution, annulment or legal separation, if the defendant resides out of or is absent from the state or the whereabouts of the defendant is unknown to the plaintiff, any judge or clerk of the supreme court or of the superior court may make such order of notice as he deems reasonable. After notice has been given and proved to the court, the court may hear the complaint if it finds that the defendant has actually received notice that the complaint is pending. If it does not appear that the defendant has had such notice, the court may hear the case, or, if it sees cause, order such further notice to be given as it deems reasonable and continue the complaint until the order is complied with.
“(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, § 46b-46 was amended by No. 91-391, § 3 of the 1991 Public Acts. The amendment is not relevant to the issue in 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.” Practice Book § 142.
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. General Statutes § 52-57 (a) provides in rele
The defendant concedes that the requirements of General Statutes § 46b-46 (b) (2) and (3) were satisfied in this case. These subdivisions require that the party requesting alimony or support of children meet the residency requirement of General Statutes § 46b-44 and that both parties were domiciled in this state immediately prior to or at the time of their separation.
Although the statutory section has been renumbered, its language remains substantively similar. General Statutes (1958 Rev.) § 46-17 provided in part: “On a complaint for divorce when the adverse party resides out of or is absent from the state or the whereabouts of the adverse party is unknown to the plaintiff, any judge or clerk of the supreme court . . . or of the superior court . . . may make such order of notice as he deems reasonable. Such notice having been given and proved to the court, such court may hear such complaint if it finds that the defendant has actually received notice that the complaint is pending, and, if it does not appear that the defendant has had such notice, the court may hear such case, or, if it sees cause, order such further notice to be given as it deems reasonable and continue the complaint until the order is complied with.”
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. General Statutes (1958 Rev.) § 46-17, now codified at General Statutes § 46b-46, which formed the basis for our decision in Smith, specifically states that it applies equally to persons who reside out of state and to persons who are absent from the state. Accordingly, it does not make sense to find that the statute mandates an order of notice for out-of-state residents but does not mandate an order of notice for persons domiciled in Connecticut, but absent from the state. The statute requires the same procedures for both groups.
An additional means of control is provided by General Statutes § 52-87, which requires a three month continuance following a nonresident defendant’s failure to appear, and authorizes a judge to direct further notice to the nonappearing party.
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 General Statutes § 52-57a. The defendant misreads Bank Mart, which focused on the sufficiency of service by newspaper publication. Bank Mart held that notice by newspaper publication should be used only as a last resort and stated that “if notice by publication is to be utilized, the plaintiff must clearly and in detail set forth in affidavit form all the steps taken to determine whether notice by some other form could be given so that the court may make an independent determination of the adequacy of notice.” (Emphasis added.) Id., 201-202.
Dissenting Opinion
with whom
joins, dissenting. The majority opinion: (1) ignores the relevant historical background of General Statutes § 46b-46, the statute at issue in this case; (2) renders critical language of the statute superfluous; (3) ignores the meaning of the language that it quotes from our only precedent interpreting the statute; (4) fails to recognize the legitimate purposes of the statutory requirement of an order of notice; (5) confuses the question of the interpretation of a long-arm statute with the question of its constitutionality; (6) blurs the distinction, long recognized in our law, between service of process and notice; (7) creates a mechanism for acquiring personal jurisdiction over a domiciliary of another state that is unheard of in any of our other statutes providing for such acquisition of jurisdiction; and (8) relies for support on a clearly distinguishable and inapplicable case. I therefore dissent.
First, the majority ignores the historical background of § 46b-46. Prior to 1975, our law was clear that, in a marital dissolution case, our courts could not obtain personal jurisdiction over an out-of-state domiciliary, who had not been personally served within the state, for purposes of entering enforceable financial orders. See, e.g., Carter v. Carter, 147 Conn. 238, 241-42, 159 A.2d 173 (1960). Although the court could, if the plaintiff complied with what was then General Statutes (Rev. to 1975) § 46-39
This state of affairs was not due to any constitutional limitation; rather, it was because Connecticut had not
Hence the enactment in 1975 of Public Act No. 75-276, which redesignated § 46-39 as § 46-39 (a), and added thereto subsection (b) of § 46-39 as follows: “When the nonresident party has received actual notice pursuant to subsection (a) of this section, and the party requesting alimony or support of children meets the residency requirement of section 46-35, and this state was the domicile of both parties immediately prior to or at the time of their separation, the court may exercise personal jurisdiction over the nonresident party as to all matters concerning temporary or permanent alimony or support of children.” (Emphasis added.) General Statutes (Rev. to 1977) § 46-39 (a) and (b) is now codified, with some subsequent amendments not at issue in this case, as General Statutes § 46b-46 (a) and (b).
The majority, however, holds that a type of service of notice never before countenanced under § 46b-46 (a) now suffices, namely, service by a sheriff of a foreign state upon the sole direction of the plaintiffs attorney, without any authorization by the Superior Court. Thus, according to the reasoning of the majority, the legislature, by enacting § 46b-46 (b), somehow also ipso facto amended § 46b-46 (a).
This leads to my second criticism of the majority opinion: the opinion renders superfluous the critical language, “under subsection (a) of this section,” 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
This analysis leads, in turn, to my third reason for disagreement with the 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 General Statutes § 46b-46] ‘confers jurisdiction upon a court to deal with complaints for dissolution, annulment or legal separation when the defendant is a nonresident or his whereabouts are unknown’; Jones v. Jones, supra, 290-91; and ‘describes the procedures that are to be followed to give such a nonresident party actual notice of the pending proceedings, and authorizes the court to hear the complaint . . . .’ Id., 291. Subsection (b), which incorporates the procedural rules of subsection (a), provides personal
Indeed, the entire passage from Jones makes the point even more clearly. That passage is as follows: “From this perspective,
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,
Fourth, the majority fails to recognize the legitimate purposes of the statutory requirement of an order of notice pursuant to § 46b-46 (a). The majority states: “[T]he narrow construction advanced by the defendant would serve no practical function.” The majority argues that because the purpose of an order of notice is to ensure that the defendant actually receives notice, “an order of notice could have done nothing more to ensure that the defendant actually received notice.”
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
This leads to my fifth reason: the majority has confused the process of interpreting a long-arm statute 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
Sixth, the majority reads § 46b-46 to blur the distinction, long recognized in our law, between service of process and notice. Service of process is the method by which a complaint, or other legal document, is delivered to a party. 1E. Stephenson, Connecticut Civil Procedure (1970) § 19. Service of process has two functions: conferring jurisdiction and giving notice. Smith v. Smith, 150 Conn. 15, 20, 183 A.2d 848 (1962). That does not mean, however, as the majority’s reading of the statute suggests, that simply because there was notice there was also jurisdiction. Although one of the purposes of service of process is to give notice, in order for there to be personal jurisdiction there must have been substantial compliance with the statute defining the applicable method of service of process. See, e.g., Tarnopol v. Connecticut Siting Council, 212 Conn. 157, 163, 561 A.2d 931 (1989); Hillcroft Partners v. Commission on Human Rights & Opportunities, 205 Conn. 324, 326-27, 533 A.2d 852 (1987); cf. Tolly v. Department of Human Resources, 225 Conn. 13, 29, 621 A.2d 719 (1993). The majority has simply read that entire notion out of § 46b-46 in the case of an out-of-state domiciliary.
I therefore dissent.
General Statutes (Rev. to 1975) § 46-39 provided: “ORDER OF NOTICE TO ABSENT PARTY. WHEN COMPLAINT MAY BE CONTINUED. On a complaint for dissolution or annulment of marriage . . . when the adverse party resides out of or is absent from the state or the whereabouts of the adverse party is unknown to the plaintiff, any judge or clerk of the supreme court or of the superior court may make such order of notice as he deems reasonable. Such notice having been given and proved to the court, such court may hear such complaint if it finds that the defendant has actually received
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 General Statutes (Rev. to 1975) § 46-39, was that “[s]uch notice having been given and proved to the court, such court may hear such complaint if it finds that the defendant has actually received notice that the complaint is pending . . . .” If, however, the defendant had not received such notice by way of the first order of notice, the court could either (1) “hear [the] case,” or (2) “order such further notice to be given as it deems reasonable and continue the complaint until the order is complied with.” Thus, pursuant to the statute prior to 1975 and the practice prevailing thereunder, if the defendant received actual notice pursuant to the first order of notice, the court could hear the case and render a dissolution judgment (but not financial orders). If the first order of notice had been unsuccessful, often the court would dispense with any further order of notice and proceed to hear the case. Sometimes, however, particularly if it appeared that a second order of notice might be success
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. General Statutes (Rev. to 1975) § 46-39, now General Statutes § 46b-46 (a), has never, until the majority’s decision in this case, been understood to permit our courts to acquire jurisdiction over either the marriage res, for purposes of the dissolution of the marriage, or over the defendant’s person, by that informal process.
General Statutes § 46b-46, formerly § 46-39, provides: “notice to nonresident PARTY. JURISDICTION OVER NONRESIDENT FOR ALIMONY AND SUPPORT. (a) On a complaint for dissolution, annulment, legal separation or custody, if the defendant resides out of or is absent from the state or the whereabouts of the defendant is unknown to the plaintiff, any judge or clerk of the supreme court or of the superior court may make such order of notice as he deems reasonable. After notice has been given and proved to the 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 section 46b-44; and (3) this state was the domicile of both parties immediately prior to or at the time of their separation.”
The second sentence of General Statutes § 46b-46 (a), on which the majority’s opinion rests, is: “After notice has been given and proved to the court, the court may hear the complaint if it finds that the defendant has actually received notice that the complaint is pending.” If this were all there were to subsection (a), I would be inclined to agree with the majority. That one sentence, however, does not exist in a vacuum. It is preceded by the first sentence, which sets forth the method of providing notice to the absent defendant; and it is followed by the third sentence, which contains two references, namely, to “such notice” and “such further notice,” that clearly equate the “notice” in the second sentence with the “notice” in the first and third sentences. Indeed, it would be an odd way to draft a statute to use the same term in three successive sentences with a different meaning in the second sentence from that in the first and third sentences. We should not attribute such exotic and dysfunctional draftsmanship to the legislature.
The “perspective” referred to is the assumption that the legislature, in enacting General Statutes § 46b-46 (b), intended to exercise its full constitutional power. Jones v. Jones, 199 Conn. 287, 292, 507 A.2d 88 (1986).
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 General Statutes § 46b-46 (b) pursuant to which the nondomiciliary defendant was not personally bound for support, the plaintiff could, after the enactment of § 46b-46 (b), use the provisions of that statute to obtain personal jurisdiction over the still nondomiciliary defendant for purposes of the court rendering a prospective support obligation. The plaintiff secured an order of notice against the absent defendant. Id., 289. This court held that § 46b-46 (b) did so apply.
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 General Statutes § 52-57a, which provides: “SERVICE OF PROCESS WITHOUT STATE UPON PERSONS DOMICILED OR SUBJECT TO JURISDICTION OF COURTS IN state. A person domiciled in or subject to the jurisdiction of the courts of this state or his executor or administrator, may be served with process without the state, in the same manner as service is made within the state, by any person authorized to make service by the laws of the state, territory, possession or country in which service is to be made or by any duly qualified attorney, solicitor, barrister or equivalent in such jurisdiction.” (Emphasis added.)
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 General Statutes § 46b-46 (b) because it shows that the legislature knows how to permit out-of-state service by out-of-state officials when it intends to do so.
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.
