Opinion
No. FA 04-0129782
February 2, 2005
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS
After careful review of the evidence presented and the relevant statutes, Practice Book sections and case law, the court makes the following findings of fact.
By summons and complaint, dated June 2, 2004, the plaintiff father sought custody of a child he had with the defendant mother. The marshal was directed to leave service for the defendant at 16 Jay Street, New London, Connecticut, which is the administrative office of the Women's Center of Southeastern Connecticut. There are no living quarters or residences at 16 Jay Street and it is used for administrative purposes only. The marshal went to 16 Jay Street and left the summons and complaint on the front counter and left. He did not personally serve the defendant. The process had a return date of June 22, 2004. The plaintiff did not seek an order of notice pursuant to Connecticut General Statutes § 46b-46.
After the matter was returned to court, the plaintiff sought a default judgment because the defendant had not filed an appearance. The default judgment was granted and the plaintiff was awarded custody of the child.
Thereafter, the defendant filed motions to open the judgment and to dismiss the case on the grounds of improper service.
After an evidentiary hearing on September 13, 2004, the court opened the judgment on October 4, 2004, and set aside the order of custody. Thereafter, the court took further evidence and heard the arguments of counsel on the Motion to Dismiss. Both sides submitted briefs on the issue.
It is undisputed that the defendant is currently in Germany with the minor child. For the reasons that follow, the court grants the defendant's motion to dismiss.
DISCUSSION
The defendant's motion to dismiss, properly brought under Practice Book § 25-13, is based on three grounds: (1) lack of jurisdiction, (2) insufficient process and (3) insufficient service of process. "[T]he Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction." (Internal quotation marks omitted.) Kim v. Magnotta, 249 Conn. 94, 101-02, 733 A.2d 809 (1999). "One who is not served with process does not have the status of a party to the proceeding . . . A court has no jurisdiction over persons who have not been made parties to the action before it." (Internal quotation marks omitted.) Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn.App. 224, 234-35, 755 A.2d 990, cert. denied, 254 Conn. 939, 761 A.2d 760 (2000).
Section 25-13(a) provides; in relevant part: "The motion to dismiss shall be used to assert . . . (2) lack of jurisdiction over the person . . . (4) insufficiency of process and (5) insufficiency of service of process." It is noted that, by not filing a memorandum of law in opposition to the defendant's motion to dismiss, the plaintiff is not in compliance with § 25-13(b), which provides, in relevant part: "If an adverse party objects to this motion he or she shall file and serve . . . a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record."
General Statutes § 52-57(a) provides that "process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state." Section 52-54 indicates, in pertinent part, that "the service of a writ of summons shall be made by the officer . . . by leaving an attested copy thereof with [the defendant] or at his [or her] usual place of abode. When service is made by leaving an attested copy at the defendant's usual place of abode, the officer making service shall note in his return the address at which such attested copy was left."
"The clear impact of § 52-57(a) is that one of its two alternatives, personal or abode service, must be followed . . ." Hibner v. Bruening, 78 Conn.App. 456, 460, 828 A.2d 150 (2003). Abode service serves both to confer jurisdiction and to give notice. "Its chief purpose is to ensure actual notice to the defendant that the action is pending." Smith v. Smith, 150 Conn. 15, 19, 183 A.2d 848 (1962). Abode service also requires that "process be served by leaving it at the usual place of [the defendant's] abode . . . Abode service is not effective if it is left at an address that is not the usual address of the party served, and an action commenced by such improper service must be dismissed." (Citation omitted; internal quotation marks omitted.) Hibner v. Bruening, supra, 463. Thus, essential to the court's exercise of jurisdiction is a determination that service was made on the defendant in her usual place of abode. The usual place of abode is "[t]he place where the defendant would most likely have knowledge of service of process and is generally recognized as the place where [the defendant] is living at the time of service." Grayson v. Wofsey, Rosen, Kweskin Kuriansky, 40 Conn.Sup. 1, 3, 478 A.2d 629 (1984). "Accordingly, our courts are reluctant to recognize abode service where process is not left for the defendant at the place he is living at the time service is made, even in cases where the defendant receives actual notice of the action." Lange v. Bianco, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0198017 (September 30, 2004, Lewis, J.T.R.) ( 38 Conn. L. Rptr. 49).
See, e.g. East Lyme v. Huntington, 22 Conn.Sup. 288, 169 A.2d 752 (1961) (stating that location where the defendant maintained an office was not equivalent to the defendant's usual place of abode); Grayson v. Wofsey, Rosen, Kweskin Kuriansky, 40 Conn.Sup. 1, 478 A.2d 629 (1984) (finding that service left at the defendant's law firm address did not amount to proper abode service).
Here, the plaintiff had a marshal serve the defendant at the Women's Center of Southeastern Connecticut, which the defendant asserts and the court agrees, is not her usual place of abode. The court heard testimony that 16 Jay Street, New London, Connecticut — the address to which the marshal purportedly delivered the summons, alleging it to be the defendant's "last known address" — was only an administrative office building. The court finds that at the time the marshal delivered the summons, the defendant was not living at 16 Jay Street, and, thus, was not properly served in hand or in her usual abode. Therefore, as the plaintiff did not comply with the requirements of §§ 52-54 and 52-57, the court did not acquire jurisdiction over the defendant.
It is noted that the summons prepared by the plaintiff states a different address for the defendant than the one stated in the marshal's return: 95 Colman Street, New London, Connecticut. "A proper officer serving process must comply with the provisions of § 52-57(a), which require that process be served by leaving it with the defendant, or at his usual place of abode . . ." (Internal quotation marks omitted.) Hibner v. Bruening, supra, 78 Conn.App. 463. "[W]hen a particular method of serving process is set forth by statute, that method must be followed." (Internal quotation marks omitted.) Commissioner of Transportation v. Kahn, 262 Conn. 257, 272, 811 A.2d 693 (2003). Moreover, "[w]hen effecting abode service, a marshal or constable cannot guess that a particular dwelling is a defendant's usual place of abode because there must be an attestation of that fact in his return." Hibner v. Bruening, supra, 465. Here, the marshal did not attest in his return that 16 Jay Street was the defendant's usual place of abode, but stated that it was her "last known address." At best, the attempted service at 16 Jay Street as the defendant's "last known address" demonstrates a "guess" as to the defendant's usual abode, and an unnecessary departure from the requirements of § 52-57(a).
General Statutes § 46b-46, as amended by No. 03-19 of the 2003 Public Acts, does allow for service at a defendant's "last known address," but an order of notice is required to do so. "[T]he first sentence of 46b-46(a) is permissive and merely gives a judge or clerk the option of issuing an order of notice." Cato v. Cato, 226 Conn. 1, 6, 626 A.2d 734 (1993). "The purpose of an order of notice is to ensure that the defendant actually receives notice." Id., 8. Notably, however, the Connecticut Supreme Court has stated that "in-hand service of process is the best and highest type of service and should be used whenever possible." (Internal quotation marks omitted.) Id. In the present case, the plaintiff neither sought nor obtained an order of notice. As such, service of process at the defendant's "last known address" is improper.
Section 46b-46 provides, in relevant part, "(a) On a complaint for . . . custody, if the defendant resides out of or is absent from the state or the whereabouts of the defendant are unknown to the plaintiff, any judge or clerk . . . of the Superior Court may make such order of notice as such judge or clerk 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. Nothing in this section shall be construed to affect the jurisdictional requirements of chapter 815p in a complaint for custody."
The defendant is now residing in Germany with the child at this time. She may or may not have been outside the country when the summons was delivered. It is important to note that, "[i]f the defendant is outside the state, the proper manner to effect service is to apply for an order of notice specifying the kind of proper notice which is most likely to come to the defendant's attention." Bove v. Bove, 77 Conn.App. 355, 365, 823 A.2d 383 (2003).
The defendant contends, moreover, that she did receive notice of the pending action against her at a later date. Such belated "actual notice," however, violates due process and does not confer jurisdiction over her. The determination of whether the court has jurisdiction over the defendant requires a two-pronged analysis: first, the court must determine whether Connecticut has jurisdiction under its statutes and, second, the court must determine whether such jurisdiction complies with due process. Cashman v. Cashman, 41 Conn.App. 382, 676 A.2d 427 (1996). Thus, if the defendant was not properly served with process "as the [relevant] statute prescribes, the court to which it is returnable does not acquire jurisdiction." Hyde v. Richard, 145 Conn. 24, 25, 138 A.2d 527 (1958). In addition, even if the defendant was properly served, jurisdiction must comport with "traditional notions of fair play and substantial justice." See Shaffer v. Heitner, 433 U.S. 186 (1977).
The Appellate Court in Bove v. Bove, 77 Conn.App. 355, 823 A.2d 383 (2003), addressed a situation similar to the present case, wherein the defendant was served improperly by attempted abode service at a place other than his usual place of abode, the action was dismissed against him, and he received notice of the action thereafter. The court stated that "[a]n attempt to serve a person affected improperly by making abode service at a place where that party does not reside, which then results in dismissal of the action against that individual, will not suffice to give actual or constructive notice." Bove v. Bove, supra, 363. The Bove court concluded that the trial court did not have jurisdiction over the defendant in that "[t]here is a basic protection against judgments without notice afforded by the Due Process Clause of the constitution of the United States." (Internal quotation marks omitted.) Id., 365. Because she did not receive proper service of process in hand or at her usual place of abode, the defendant did not receive notice of the plaintiff's custody action, and did not file an appearance in the matter, which resulted in a default against her. Thus, the defendant's belated notice in the present matter should not operate to confer jurisdiction upon her when she was not properly served; a contrary result would violate her due process rights.
CONCLUSION
General Statutes § 52-54 and § 52-57 set forth the requirements for service of process on an individual, stating that service must be made on the defendant in hand or at his/her usual place of abode. Here, the plaintiff attempted to serve the defendant with process at a location that the court cannot find was her usual place of abode. Consequently, the defendant was not properly served according to statute. The fact that the defendant later became aware of the action against her is of no import, as it is a violation of her due process rights to allow jurisdiction to be based on "actual notice" when there was improper service of process. The defendant's motion to dismiss is granted.
Jack W. Fischer, J.