Opinion
No. FA 10-4013103-S
May 25, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS #102
I BACKGROUND
By complaint dated March 24, 2010, the plaintiff, Richard Giammarco, filed suit seeking the dissolution of his marriage with the defendant, Melissa Giammarco. The plaintiff therein alleges, inter alia, that the parties were married on September 27, 2002, one of the parties was a resident of this state for at least twelve months preceding the date of the filing of the complaint and that the marriage has broken down irretrievably without prospect of reconciliation. On April 13, 2010, the defendant filed a motion to dismiss the complaint for insufficiency of service of process. The matter was heard at a hearing on May 3, 2010.
II DISCUSSION
Practice Book § 25-13 provides in relevant part: "(a) The motion to dismiss shall be used to assert . . . (2) lack of jurisdiction over the person . . . This motion shall always be filed with a supporting memorandum of law and, where appropriate, with supporting affidavits as to facts not apparent on the record."
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "The burden rests with the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004).
"[I]n ruling on a motion to dismiss, the trial court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). In order to establish proper service of process, "[f]acts showing the service of process in time, form and manner sufficient to satisfy the requirements of mandatory statutes . . . are essential . . ." (Internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989).
In her motion to dismiss, the defendant states that she "arrived home on March 31, 2010 to find a manila envelope on the front porch of the marital home. The manila envelope had her husband's name, Richard Giammarco, on it. She believed the envelope to be papers from a marshal attempting to serve her husband with the divorce papers she had recently completed. As the envelope did not have her name on it, she did not open the envelope and therefore was unaware that the unmarked envelope contained papers from a marshal for this divorce proceeding commenced by the husband. This case was filed with the Court on April 6, 2010 by husband's counsel and contains a marshal's return stating that abode service was made on the Defendant. The wife's summons and divorce complaint were served in hand on the husband on April 7, 2010 and were then filed in New Haven on April 8, 2010." The defendant argues that "[w]hile it is true that a copy of the summons and complaint was left at the residence of the Defendant, it was not done so in a manner that would reasonably indicate the papers were intended for her."
The plaintiff did not file a memorandum in opposition to the defendant's motion to dismiss. At a May 3, 2010 hearing, the plaintiff testified that he moved back to the marital residence on April 7, 2010. The plaintiff stated that he saw the envelope on the front porch at some point but did not take it inside. The plaintiff testified that he did not know what the envelope was but he did know that his wife was trying to have him served. The plaintiff also stated that he did not write his own name on the envelope.
In the return of service submitted by the plaintiff, state marshal Michael F. Cassidy states that on March 31, 2010, he served process "at the usual place of abode of the within named defendant Melissa Giammarco, 85 Hidden Valley Drive, Meriden, Connecticut, with my endorsement thereon." At the May 3, 2010 hearing, marshal Cassidy stated that he made abode service at the defendant's residence on March 31, 2010, by securing the papers into the side of the front door. Marshal Cassidy further testified that he has never served process in a manila envelope like the one found on the parties' front porch.
"A return of service indicating that abode service was made is prima facie evidence of the facts stated in the return . . . [A]n officer's return is only prima facie evidence of the facts stated therein. It may be contradicted and the facts shown to be otherwise The defendant has the burden of proof when contesting the presumptively valid abode service . . . All process involves a reasonable attempt to give notice to the defendant of the pendency of an action against him or his property." (Citations omitted.) Burke v. Centrix Management Company, LLC, Superior Court, judicial district of Hartford, Docket No. 7445 (October 12, 2006) [ 42 Conn. L. Rptr. 206].
In the present case, the plaintiff has provided a return of service evidencing that marshal Cassidy served the defendant at her abode on March 31, 2010, in compliance with Practice Book §§ 10-13 and 10-14. The defendant has failed to submit evidence that rebuts the plaintiff's return of service other than her own testimony given on May 3, 2010, that she did not open the manila envelope that she claims was on the front porch to the marital house where she was residing, did not know of its contents prior to the May 3 hearing and did not otherwise receive service of process. "The Connecticut Supreme Court has decided that where a sheriff's notice is signed and filed, in accordance with the applicable service of process statute . . . it is prima facie evidence of proper and sufficient service of process . . . Further, a Connecticut court will exercise every presumption in favor of its jurisdiction." (Citations omitted.) Flanagan v. Baybanks Credit Corp., Superior Court, judicial district of Middlesex, Docket No. CV 66274 (January 27, 1993, Walsh, J.) [ 8 Conn. L. Rptr. 269]. Accordingly, the court finds that the defendant failed to overcome the presumption of the sufficiency of the plaintiff's service of process, and the plaintiff properly served process upon the defendant by abode service on March 31, 2010.
At the May 3, 2010 hearing, the defendant testified to her desire to have this action proceed at the judicial district courthouse in New Haven because she works in New Haven, the plaintiff is a Meriden police officer, the police station in Meriden is next to the courthouse and the defendant feels that coming to the court house is an intimidating experience because of that. Practice Book § 12-1 provides in relevant part: "Any cause, or the trial of any issue therein, may be transferred from a judicial district court location to any other judicial district court location . . . by order of a judicial authority (1) upon its own motion . . ." See also General Statutes § 51-347b(a); Sanford v. Gorton, Superior Court, judicial district of Fairfield, Docket No. CV 09 4028647 (September 16, 2009, Bellis, J.). Under the circumstances, and in light of the defendant's testimony, the court believes that this action should be heard at the judicial district courthouse in New Haven. This case is therefore ordered transferred to the Superior Court for the judicial district of New Haven for further proceedings.
III CONCLUSION
For the above stated reasons, the defendant's motion to dismiss is denied. The court orders that the case be transferred to the Superior Court for the judicial district of New Haven for further proceedings.