Opinion
KNOFA124119782S
04-19-2016
Desmond K. Gregor v. Joy Otuorimuo
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S AMENDED MOTION TO VACATE JUDGMENT OF DISSOLUTION (#116)
Leo V. Diana, J.
FACTS
The plaintiff, Desmond K. Gregor, commenced a dissolution of marriage action against the defendant, Joy Otuorimuo, by complaint bearing a return date of October 9, 2012, which he filed on September 7, 2012. The complaint alleges, inter alia, that the parties were intermarried on October 16, 2011 in New London, Connecticut; that the plaintiff resided in the state of Connecticut for at least twelve months immediately before filing the divorce complaint or before the divorce became final; and that the marriage of the parties has broken down irretrievably. The summons alleges that the defendant's address is Block 285, Plot 128, IBA Housing Estate, Lagos, Ojo, Lagos, Nigeria.
On September 7, 2012, in response to the plaintiff's first motion for order of notice, the court filed an order of notice, which was signed on August 28, 2012 and found that the defendant lived out of state at the address in Nigeria listed on the summons, and ordered that the plaintiff give notice to the defendant by having a State Marshal mail a true and attested copy of the summons and complaint by registered or certified mail, return receipt requested. The plaintiff served process on the defendant in this manner on September 5, 2012 in Ojo, Lagos, Nigeria. The plaintiff filed the State Marshal's initial return of service on September 7, 2012, which attested to sending the documents to Nigeria via registered mail on September 5. On October 22, 2012, the plaintiff filed the State Marshal's supplemental return, which was dated September 4, and included the receipt for registered mail, also dated September 4, as well as a USPS.com Track & Confirm webpage printout, printed on October 18. The printout listed the same label number--RB 141358705US--as is listed on the receipt for registered mail and demonstrated that on September 20, 2012, an attempted delivery was made and that another attempted delivery was scheduled for later that same day. This activity, however, was the last activity recorded as to the status of the registered mailing, as of October 18, 2012. There is no confirmation of delivery listed on the printout.
On November 2, 2012, the court, Vasington, J.T.R., granted the plaintiff's second motion for order of notice and found that the current address of the defendant was unknown and that all reasonable efforts to find her failed. Further, the court found that the defendant's last known address was in New London, and ordered that a State Marshal place a legal notice of the order and the complaint in The New London Day. On November 19, 2012, the State Marshal filed another return stating that she caused the order of notice to be published in The New London Day and attested to receiving the publisher's certificate on November 26, 2012.
In his second motion for order of notice, the plaintiff stated that he made reasonable efforts to find the defendant, including contacting directory assistance and relatives and friends of the defendant. Further, the plaintiff stated that the State Marshal sent a registered letter to the defendant's address listed on the marriage certificate. Finally, the plaintiff stated that the last known address of the defendant was 204 Montauk Ave., Apt. 1, New London, CT 06320.
The defendant did not file an appearance and on January 17, 2013, the court, Purtill, J.T.R., entered the dissolution of marriage judgment, which incorporated the plaintiff's proposed dissolution orders. On August 26, 2015, the defendant filed a limited appearance and a post-judgment motion to vacate the court's judgment of dissolution on the ground that the court lacked personal jurisdiction over the defendant based on insufficiency of service of process. The motion was denied for lack of service. The plaintiff did not respond to the defendant's motion or amended motion. The court re-heard the oral argument on April 7, 2016 on the amended motion.
The defendant did not accompany her motion to vacate with a motion to dismiss. It is well-established law that " [b]ecause a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss." Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 53, 459 A.2d 503 (1983). " [A] trial court [however] has inherent authority to open and modify a judgment it rendered without jurisdiction. Such a judgment is void ab initio and is subject to both direct and collateral attack." Broaca v. Broaca, 181 Conn. 463, 467, 435 A.2d 1016 (1980).
It is reasonable to conclude that the plaintiff did not file a response to the present motion because at the time the present motion was filed, more than 180 days had passed since the entry of judgment of dissolution. Pursuant to Practice Book § 3-9(d), his former attorney has withdrawn from the case. Practice Book § 3-9(d) provides in relevant part: " All appearances of counsel shall be deemed to have been withdrawn 180 days after the entry of judgment in any action seeking a dissolution of marriage . . ."
DISCUSSION
General Statutes § 52-212a provides, in pertinent part, the following: " Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed . . ." See also Practice Book § 17-4. The Connecticut Supreme and Appellate Courts have interpreted the " unless otherwise provided by law" language in § 52-212a as preserving the common-law authority of a court to open a judgment after the four month limitation period when certain circumstances, such as mutual mistake, are present. See Nelson v. Charlesworth, 82 Conn.App. 710, 713, 846 A.2d 923 (2004) (citing In re Jonathan M., 255 Conn. 208, 238, 764 A.2d 739 (2001) and Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 466, 440 A.2d 159 (1981)). They have also interpreted the same language as preserving the authority of a court to open a judgment that is rendered without personal jurisdiction over a defendant. Wilkinson v. Boats Unlimited, Inc., 236 Conn. 78, 83-84, 670 A.2d 1296 (1996); see also Jimenez v. DeRosa, 109 Conn.App. 332, 343, 951 A.2d 632 (2008); Broaca v. Broaca, 181 Conn. 463, 467, 435 A.2d 1016 (1980) (citing principal in opening of dissolution judgment context). A judgment that is rendered without personal jurisdiction is void ab initio and is subject to both direct and collateral attack. Broaca v. Broaca, supra, 467.
Practice Book § 17-4 states, in pertinent part, the following: " (a) Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent . . ."
A. Timeliness of Motion to Vacate Judgment of Dissolution
Primarily, the defendant argues that her motion to vacate is timely, despite being brought approximately two and a half years after judgment entered, because the judgment of dissolution entered due to mutual mistake between the court and the plaintiff. The defendant maintains that the court and the plaintiff were mutually mistaken as to how to correctly comply with General Statutes § 52-59d for service outside of the United States and the Hague Convention.
A mutual mistake in the context of opening a judgment of dissolution has been defined as " one that is common to both parties and effects a result that neither intended." (Internal quotation marks omitted.) Terry v. Terry, 102 Conn.App. 215, 229, 925 A.2d 375, cert. denied, 284 Conn. 911, 931 A.2d 934 (2007); see also Inland Wetlands & Watercourses Agency v. Landmark Investment Group, Inc., 218 Conn. 703, 708, 590 A.2d 968 (1991) (applying same definition in different context). " [A] mutual mistake requires a mutual misunderstanding between the parties as to a material fact . . . Whether there has been a mutual mistake is a question of fact." (Citation omitted.) BRJM LLC v. Output Systems, Inc., 100 Conn.App. 143, 148, 917 A.2d 605, cert. denied, 282 Conn. 917, 925 A.2d 1099 (2007). " The factual predicate necessary for a finding of mutual mistake is that both parties relied on the same mistaken information in entering into a contract." Id., 150. Further, " [t]he kind of mistake . . . that would justify the opening of a stipulated judgment under § 52-212a must be mutual; a unilateral mistake will not be sufficient to open the judgment . . ." (Citations omitted; internal quotation marks omitted.) Richards v. Richards, 78 Conn.App. 734, 740, 829 A.2d 60, cert. denied, 266 Conn. 922, 835 A.2d 473 (2003).
In the present case, while the defendant argues that her motion to vacate is timely because of the mutual mistake between the court and the plaintiff as to the proper service requirements, she has presented no evidence demonstrating that an agreement existed between the parties, or that there was a mistake common to both parties, which affected a result that neither party intended. Further, the defendant has not cited, nor has the court found, any authority stating that a mutual mistake can exist between a party and the court.
The defendant, however, does argue that the court did not have personal jurisdiction over her when the judgment of dissolution entered against her. The record demonstrates that in the judgment of dissolution, the court noted that the defendant failed to appear in the action (defaulted). The court finds, on the present motion, that it has the authority to open the judgment of dissolution because the defendant is attacking the court's jurisdiction to enter the judgment of dissolution against her. Therefore, the court, exercising its inherent power, must determine the merits of the defendant's arguments.
" Divorce judgments entered by reason of a default of the losing party are not favored by the courts, and motions to vacate default judgments therefore are often liberally granted, because the state's interest in marital res . . . favors dispositions on the merits." (Footnotes omitted.) 24 Am.Jur.2d 597, Divorce and Separation § 384 (2008).
B. Sufficiency of the Plaintiff's Service of Process
The defendant argues that the court lacked personal jurisdiction over her when it entered the judgment of dissolution because the plaintiff effectuated insufficient service of process. Specifically, the defendant argues that service of process was insufficient because it did not comply with § 52-59d, the Hague Convention, and Practice Book § 11-8.
At the outset, the court notes that " the burden of proof is on the plaintiff [in the present case] to prove jurisdiction over the person when constructive service is used." See Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 54, 459 A.2d 503 (1983). " If a defendant challenges the court's personal jurisdiction, the plaintiff bears the burden of proving the court's jurisdiction . . . [in] situations wherein service is constructive, e.g., service on a . . . nonresident individual by mail . . ." (Citation omitted.) Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825, 917 A.2d 959 (2007); see also Smith v. Smith, Superior Court, judicial district of Fairfield, Docket No. FA-82-0199034-S (March 21, 2014, Klatt, J.) (stating that notice by publication is accepted method of constructive notice by rules of practice).
General Statutes § 46b-46 sets out the procedure for service of process of a complaint for dissolution on nonresident individuals. If the defendant resides out of state, any judge or clerk of the Superior Court may make an order of notice as is deemed reasonable. General Statutes § 46b-46(a). The court may hear the action, even if the plaintiff has not proven that the defendant has received notice, or, upon cause, it may order further notice to be given as it deems reasonable. General Statutes § 46b-46(a). " Subsection (a) confers jurisdiction upon a court to deal with complaints for dissolution . . . when the defendant is a nonresident or his whereabouts are unknown . . . 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 . . ." (Citation omitted; internal quotation marks omitted.) Cato v. Cato, 226 Conn. 1, 5-6, 626 A.2d 734 (1993).
General Statues § 46b-46 provides, in pertinent part: " (a) On a complaint for dissolution . . . 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 Supreme Court or 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 . . ."
General Statutes § 52-57a provides that a person who is subject to the jurisdiction of the courts of Connecticut may be served with process outside of this state in the same manner as service is made within the state. Further, because the defendant in the present case is alleged to reside in Nigeria, § 52-59d also applies. Section 52-59d provides that if process must be served outside of the country, it shall not be effectuated in violation of any applicable treaty or convention, including the Hague Convention on Service of Process Abroad. " Although this statute has mostly been seen in the context of the Hague Convention, the language of the statute shows that the applicability of § 52-59d is not limited solely to the Hague Convention." Yanyac v. Cazassa, Superior Court, judicial district of Middlesex, Docket No. [Not yet assigned] (June 27, 2013, Gould, J.) (56 Conn. L. Rptr. 375, 377-78); see also Jacques v. Jacques, Superior Court, judicial district of Waterbury, Docket No. FA-00-0162261-S (May 10, 2001, Leheny, J.) (29 Conn. L. Rptr. 568, 570) (where country is not signatory to Hague Convention, court must still determine if service complied with § 52-59d).
General Statutes § 52-57a provides the following: " 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 or by any duly qualified attorney, solicitor, barrister or equivalent in such jurisdiction."
General Statutes § 52-59d provides the following: " (a) Notwithstanding any provision of the general statutes relating to service of process, civil process shall not be served outside of the United States of America in violation of any applicable treaty or convention, including without limitation, the Hague Convention on Service of Process Abroad. (b) If service of process cannot be made under the applicable treaty or convention within sixty days, the Superior Court may, upon application, order service of process upon such terms as the court deems reasonably calculated to give the defendant actual notice of the proceedings in sufficient time to enable the defendant to defend."
If service of process cannot be made under an applicable treaty or convention within sixty days, the Superior Court may, upon application, order an alternative method of service of process in such a manner as is reasonably calculated to give the defendant actual notice of the proceedings in sufficient time to enable her to defend. General Statutes § 52-59d. " If service of process cannot be made under the applicable international treaty or convention within sixty days from the issuance of the summons, then the judicial authority may issue, upon the application of any party, an order of notice. In determining what manner and form of notice shall be ordered, the judicial authority shall consider the following: (1) other methods of service specified or allowed in any applicable international treaty or convention, including any reservations; (2) whether all applicable international treaties and conventions prohibit substituted service; (3) what method of service provides the greatest likelihood the party being served will receive actual and timely notice of the suit so the party may appear and defend; (4) whether a particular method of service violates the law, particularly the criminal law, of the foreign country involved; (5) whether an actual agent of the party being served can be served within the United States." Practice Book § 11-8.
Ratified treaties, such as the Hague Convention, take precedence over conflicting state laws under the supremacy clause of the United States constitution. Camphor Technologies, Inc. v. Biofer, S.P.A., 50 Conn.Supp. 227, 232, 916 A.2d 142 (2007). The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, known as the Hague Service Convention, seeks " (a) establish a system that, to the extent possible, brings actual notice of the document to be served to the recipient in sufficient time to enable [her] to defend [herself]; (b) to simplify the method of service of judicial documents issued by the courts of the state of origin in the state of execution; and (c) to facilitate proof that service has been effected abroad." 1 B. Ristau, International Judicial Assistance: Civil and Commercial (Rev. Ed. 2000) § 4-1-1, p. 145.
Another mechanism to effectuate service of process is through letters of request known as letters rogatory to a foreign jurisdiction. Letters rogatory are defined as " a formal request from a court in which an action is pending, to a foreign court to perform some judicial act; " 2 B. Ristau, supra, p. A-412; one such request is asking for judicial assistance with service of process to a person within its jurisdiction. According to the United States Department of State, " Nigeria is not a party to the Hague Service Convention. In the absence of any prohibition against it, service of process in Nigeria may be effected by mail, by agent, such as a local attorney, or though letters rogatory." United States Department of State, Bureau of Consular Affairs, " Legal Considerations: Nigeria, " (last modified November 15, 2013) available at http://travel.state.gov/content/travel/en/legal-considerations/judicial/country/nigeria.html (last visited November 10, 2015) (copy contained in the file of this case in the Supreme Court clerk's office).
In Jacques v. Jacques, supra, 29 Conn. L. Rptr. 568-69, the plaintiff filed a petition for marital dissolution in Connecticut and caused the defendant to be served in Haiti, where she resided, by in-hand service; however, the defendant did not file an appearance in the matter. In determining whether the plaintiff properly complied with § 52-59d, the court found that the Hague Service Convention did not apply because Haiti was not a signatory to the Convention. Id., 569. Nonetheless, the court held the plaintiff had not met his burden of proof of personal jurisdiction over the defendant because he had not provided any evidence that his in-hand service was proper under the law of Haiti. Id., 570.
In the present case, the defendant argues that the judgment of dissolution should be vacated because the court lacked personal jurisdiction over the defendant due to insufficiency of service of process. Specifically, the defendant argues that the plaintiff failed to comply with § 52-59d by failing to make a request for service abroad, as required by the Hague Service Convention, and by failing to make a formal request through letters rogatory, as permitted by the Hague Service Convention. Further, the defendant argues that the court failed to consider the factors listed in Practice Book § 11-8 when deciding which manner and form use for the subsequent order of notice because the plaintiff did not effectuate service via the proper methods under the Hague Service Convention. These arguments, however, are without merit because Nigeria is not a signatory to the Hague Service Convention. See Yanyac v. Cazassa, supra, 56 Conn. L. Rptr. 375 (noting that Brazil, country where plaintiff sought to effectuate service of process, was not party to Hague Service Convention); see also Jacques v. Jacques, supra, 29 Conn. L. Rptr. 570 (holding that plaintiff's arguments regarding Hague Service Convention were without merit because Haiti was not signatory).
Moreover, the defendant argues that the plaintiff never demonstrated that service of process could not be made in compliance with § 52-59d when he filed his subsequent motion for order of notice for notice by publication, which the court ordered. While the defendant's arguments regarding the Hague Convention are without merit, the court finds that the plaintiff did not meet its burden of proof that the court had personal jurisdiction over the defendant to enter the judgment of dissolution, based on its use of two constructive notice methods: first, registered mail in Nigeria, and second, notice by publication in The New London Day.
While the record demonstrates that the plaintiff provided proof of his attempts at notice regarding the first and second orders of notice and the orders of notice appear to comply with § 46b-46, the plaintiff here had the additional burden of demonstrating compliance with § 52-59d. See Jacques v. Jacques, supra, 29 Conn. L. Rptr. 570 (holding it is plaintiff's burden to prove absence of any applicable violation, not just Hague Service Convention violation). The record does not contain any evidence that the plaintiff provided legal authority of Nigeria, pursuant to any treaty or convention, that registered mail alone is sufficient to properly effectuate service of process on a defendant who resided in Nigeria, or otherwise fully complied with § 52-59d.
While the court recognizes that the defendant's motion is most likely unopposed because the plaintiff's counsel withdrew from the matter; see footnote 3; the defendant certified that she sent a copy of the motion to the plaintiff's former counsel.
Furthermore, the plaintiff has similarly failed to meet his burden of proof that the court had personal jurisdiction over the defendant by his second attempt to serve process on the defendant via notice by publication. " Notice by publication, although sometimes necessary, is not the preferred method . . ." In re Baby Girl B., 224 Conn. 263, 295, 618 A.2d 1 (1992). " 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." (Internal quotation marks omitted.) Id., 295-96. Here, considering all of the circumstances, notice by publication was not reasonably calculated to apprise the defendant of the plaintiff's complaint for dissolution. The plaintiff's summons listed a known address in Nigeria as the defendant's address and after attempting service of process on the defendant at that address, the plaintiff moved the court to allow notice by publication in The New London Day based on the New London address the plaintiff alleged to be the defendant's last known address. While the plaintiff may have a difficult time locating the defendant in a foreign country, serving her with process by publication is not reasonably calculated to give her notice of the action. The plaintiff cannot list, as he has done, a known address in Nigeria on his summons, and then meet his burden of demonstrating personal jurisdiction by citing notice by publication in New London.
Finally, there is no evidence in the record that the defendant ever received actual notice of the matter by either the registered mailing or publication of the notice. The court grants the defendant's motion to vacate because the plaintiff has not met his burden of proof that the court had personal jurisdiction over the defendant at the time that it rendered the judgment of dissolution.
CONCLUSION
For the foregoing reasons, the court grants the defendant's motion to vacate.