Cato v. CatoCato v. Cato
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Lead Opinion
The defendant appeals from the judgment dissolving the parties’ marriage. He claims that the trial court improperly determined that the process and service of process were sufficient, and that the court had personal jurisdiction over him. We affirm the judgment of the trial court.
The following undisputed facts are relevant to this appeal. The parties were married in Amsterdam, New York, on November 12, 1965. In 1970, they purchased a home in Bloomfield and were domiciled there until their separation in March, 1989. After the separation, the defendant resided in Texas where he was personally served with divorce papers in-hand by a sheriff of that state on January 3, 1990. The defendant continued to *144own property in Connecticut. He appeared specially to contest personal jurisdiction, and, on January 22, 1991, the court, Barall, J., denied his motions to dismiss.1 Thereafter the court, Steinberg, J., rendered judgment dissolving the parties’ marriage and ordered the defendant to pay periodic alimony to the plaintiff in the amount of $630 per week. The court also ordered that the defendant maintain $250,000 in life insurance coverage and name the plaintiff as an irrevocable beneficiary, convey his interest in the marital home to the plaintiff, and pay certain counsel fees.
The defendant claims that the court lacked jurisdiction over the complaint as well as personal jurisdiction over the defendant. We do not agree. Mere notice of an action is not sufficient to confer personal jurisdiction over a nonresident defendant. Robertson v. Robertson, 164 Conn. 140, 144, 318 A.2d 106 (1972). “Such jurisdiction over a nonresident requires statutory authorization.” Goldstein v. Fischer, 200 Conn. 197, 201, 510 A.2d 184 (1986). Such personal jurisdiction may be allowed pursuant to
The defendant correctly asserts that a statutory basis for jurisdiction is mandatory, and that the concept of due process cannot take the place of statutory compliance. We do not agree with the defendant’s claim, however, that, under the circumstances of this case,
Our Supreme Court in Jones addressed the applicability of
We cannot agree with the defendant that
“The purpose of an order of notice is, of course, to give notice to the party being sued. It is not a mere perfunctory act in order to satisfy the technicalities of a statute, but has, as its basis, constitutional dimensions. ‘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 pen-dency 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).” Bank Mart v. Langley, 39 Conn. Sup. 198, 199-200, 474 A.2d 491 (1984).
*147It would be both illogical and unreasonable to construe our domestic relations long-arm statute6 in such a narrow manner as to ignore its very purpose. The defendant agrees that
The judgment is affirmed.
In this opinion Norcott, J., concurred.
Notes
The defendant filed two motions 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.”
The defendant does not challenge the satisfaction of the other two conditions: (1) that the plaintiff met the residency requirements of § 46b-44, and (2) that Connecticut was the domicile of both parties immediately prior to or at the time of their separation.
While a long-arm statute may allow Connecticut courts to assert personal jurisdiction over a nonresident, such assertion of jurisdiction must still comply with federal constitutional requirements of due process. Gaudio v. Gaudio, 23 Conn. App. 287, 298, 580 A.2d 1212, cert. denied, 217 *148Conn. 803, 584 A.2d 471 (1990). All assertions of state court jurisdiction must be evaluated according to a minimum contacts test. Standard, Tallow Corporation v. Jowdy, 190 Conn. 48, 51, 459 A.2d 503 (1983). The defendant does not contest this requirement nor does he claim that his due process rights have been violated.
Dissenting Opinion
dissenting. The defendant appeals on two grounds from the judgment in this case, which ordered *148alimony, attorney’s fees, and the disposition of real estate and other personal property. The first ground is insufficiency of process; the second is lack of personal jurisdiction.
The parties jointly own a house and resided there for nineteen years as husband and wife until April, 1989. In 1988, the defendant obtained new employment in Texas. The defendant considered Connecticut his residence and domicile until he determined that his wife no longer wanted to live with him. Between 1988 and April, 1989, he lived alone in Texas making trips back home. In April, 1989, after his trip home in March, he changed his residence to Bay City, Texas.
Around Labor Day, 1989, he came back to Connecticut to see if his wife would change her mind and go to Texas with him. As a result of that final refusal, in October, 1989, the defendant instituted a divorce action in Texas in which the plaintiff did not appear.
On December 11, 1989, the plaintiff filed a complaint, returnable January 16, 1990, to the Superior Court in the Judicial District of Hartford-New Britain at Hartford. The summons gave the defendant’s address as 1208 Avenue G, Bay City, Texas. The plaintiff’s attorney sent the summons and complaint to the sheriff of Matagorda County, Texas. The return states that on January 3, 1990, at 7 p.m., the deputy sheriff delivered to the defendant in person “a true copy of this notice with a true and correct copy of the show cause order attached thereto.” It must be noted that no show cause order could be attached to the complaint as none had been sought in the Connecticut court. It is impossible *149to know, on the basis of the foregoing quote from the sheriffs return, what was served on this defendant. Obviously, the service is insufficient on its face.
The defendant, on January 2, 1991, filed two motions claiming that the plaintiff failed to follow
The court, Bar all, J., denied the motions holding (1) that the parties had separated in March, 1989, and that the Connecticut long-arm statute was applicable because in March, 1989, the parties had been domiciled in Connecticut, (2) that
Dissolution actions involve legal and equitable relief. The process by which persons are brought to court and the decision the court makes affect the basic structure of society, the family.
Our civil process statutes are intended to provide fairness.
In this particular action, the Texas return fails to describe what was served on this defendant other than a show cause order that does not exist. We can not assume what was delivered.
The court found that both parties were domiciled in Connecticut in March, 1989. The trial court also found as a fact that the defendant established residence in Texas in April, 1989. Accordingly, the marriage being a Connecticut based marriage with the plaintiff still resident and domiciled here, subject matter jurisdiction is not an issue. Personal jurisdiction over the defendant, however, is an issue.
The trial court’s decision does not state where the defendant was domiciled in January, 1990. Because, as the trial court found, the defendant had become a Texas resident in April, 1989, Connecticut did not have jurisdiction over him as a resident in January, 1990. Nor did the court find that the defendant had resumed his residence in Connecticut. We are therefore compelled to conclude that his domicile was in Texas in January, 1990. Because the defendant was a nonresident domiciled in a foreign jurisdiction,
Because dissolution proceedings involve the breakup of a family, child custody, visitation, child support, alimony, and the division of assets and liabilities, they are not usual civil cases. Historically, only the legislature had the power to grant a divorce. The proceeding is purely statutory. The Superior Court is authorized by statute to grant both legal and equitable relief that did not exist at common law. Steele v. Steele, 35 Conn. 48, 53-54 (1868). Thus, all of Chapter 815J must be carefully studied and followed.
*151Too little attention is paid to civil procedure. Emphasis is placed on the substantive law. Procedure, however, provides the frame work in which substantive law is conducted, giving it needed resiliency but protecting it from falling into disarray from the tugs and pulls of competing interests. In other words, the playing field must be level and the rules of practice and procedure observed where they affect the most basic principle of civilization, the family.
In Cikora v. Cikora, 133 Conn. 456, 460, 52 A.2d 310 (1947), the Supreme Court noted that, provided due process of law is observed, each state has the power to alter the marriage status of its domiciliaries. See Williams v. North Carolina, 325 U.S. 226, 229, 65 S. Ct. 1092, 89 L. Ed. 1577 (1944). In Cikora, the court approved service on the nondomiciled defendant spouse by an order of notice requiring notice by publication in a newspaper.
As held in Carter v. Carter, 147 Conn. 238, 241, 159 A.2d 173 (1960), an order directing payment of alimony or support by a defendant in a divorce action is a judgment in personam. Without personal service, there is no jurisdiction over the person unless he appears voluntarily. That court went on to say, “ [constructive service of process on a nonresident defendant is not sufficient to furnish a basis for a judgment in personam, even though it may be shown that the defendant had actual notice of the pending action.” The court held that as to real property Connecticut has in rem jurisdiction, but that the attachment of real property requires that the defendant be afforded a reasonable opportunity to be heard before any order based on the attachment is made. Id., 242.
There was no order of notice pursuant to
Of interest is that the plaintiff in her December 21, 1990 motion for the above restraining order refers to the Texas divorce proceeding in which the defendant acknowledged that the Texas court had no personal jurisdiction over this Connecticut plaintiff.
Yet, the trial court here in Connecticut went ahead and exercised in personam jurisdiction as to this nonresident, nondomiciliary defendant placing a prior restraint on the alienation in Connecticut of his personal assets without notice or a chance to be heard, which would have been required in any prejudgment remedy application.
This is contrary to the determination in Williams v. North Carolina, supra, Pinsky v. Duncan, 898 F.2d 852, modified, 907 F.2d 17 (2d Cir. 1990), aff’d sub nom. Connecticut v. Doehr, 501 U.S. , 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991), Carter v. Carter, supra, and Cikora v. Cikora, supra.
The plaintiff asserts that
This court agrees that
Should such decisions be left to attorneys and pro se litigants (who are becoming ever more numerous in family cases), or is it not more in keeping with fairness and justice for the Superior Court to keep control of such matters. It is that court to which the legislature delegated those powers, not to the general public.
As to
In this particular case, the principles discussed in Goldstein v. Fischer, 200 Conn. 197, 510 A.2d 184 (1986), and Jones v. Jones, 199 Conn. 287, 507 A.2d 188 (1986), cited in the majority opinion, entirely support the reasoning of this dissent.
For all the foregoing reasons, I would find both an insufficiency of process and lack of in personam jurisdiction of the defendant. The plaintiff should be required to begin anew.