Opinion
No. FA98-0116648
December 1, 2004
MEMORANDUM OF DECISION
The court has before it the plaintiff's motion for contempt against Don Ricardo Sebastian dated June 12, 2002, alleging failure to pay a child support order and an accrued arrearage of over $118,000.00. Don Ricardo Sebastian, by his counsel, has filed a motion to dismiss and also a motion to open the default paternity judgment. After numerous scheduling delays, a full contested hearing was held over several days, concluding on November 7, 2002.
The parties were given leave to file briefs. The plaintiff's brief was filed February 27, 2004. Thereafter, the court was notified by counsel that the parties had reached a settlement and needed additional time to work out details and present a written stipulation. After several months, the agreement was not finalized and has never materialized. Counsel waived the four-month rule to allow the court to render a decision instead of declaring a mistrial.
The procedural history of the file reveals that on August 5, 1998 the Department of Social Services commenced a paternity petition pursuant to General Statutes § 46b-162. The petition alleged that the named plaintiff, Marilyn Mejias, is the mother of the minor child Shiana Marie Sebastian, born October 6, 1996. It is alleged that the plaintiff was unmarried at the time of birth, and that the child's father is one "Don Ricardo Sebastian, 56 Meetinghouse Lane, Ledyard, CT 06339."
The petition was served by an investigator of the Department of Social Services. The return of service indicates that a copy of the petition, order and summons were left at the usual place of abode of "Don Ricardo `Rick' Sebastian" at 56 Meetinghouse Lane, Ledyard, CT at 4:00 p.m. on December 4th, 1998. The investigator added a cryptic notation: "verified by cousin." The hearing date indicated on the summons was January 8, 1999. The original petition, order and summons together with the return of service were timely filed with the court cleric.
General Statutes § 46b-215(a)(8)(A) and § 17b-745(a)(7)(B) authorize investigators of the Department of Social Services to serve petitions for support. General Statutes § 46b-160(a) allows investigators to service paternity petitions.
On the appointed court date the named plaintiff, Marilyn Mejias appeared in court. Because she was then a minor, a guardian ad litem was appointed for her. The defendant did not appear. The court, Langley, F.S.M., found that there was valid abode service and that the defendant was not in the military service and then continued the matter for further proceedings to February 5, 1999. On February 5, the court, Alvord, F.S.M., found that the defendant had notice of the hearing but failed to appear. Testimony was presented by the plaintiff, after which the court entered a judgment of paternity, holding that the defendant is the father of Shiana. The case was continued again for financial orders.
On March 5, 1999 once again the plaintiff was present with her mother, who was the appointed guardian ad litem, and the defendant failed to appear. The State of Connecticut introduced evidence that the defendant was a member of the Mashantucket Pequot Tribal Nation. The State further introduced evidence (State's Exhibit A) in the form of an earnings history statement which disclosed the defendant's income from the tribe. For the period from May 2, 1998 until August 29, 1998 the statement indicated that the tribe had provided $91,460.67 to the defendant. Over the 18 weeks disclosed, the average weekly gross income was $5,081.15. The plaintiff mother's gross and net income was zero. The court, Alvord, F.S.M., ordered the defendant to pay $947.00 per week child support plus $189.00 per week on the arrearage. The court found arrearages in the amounts of $71,972 to the plaintiff and $46,403 to the State of Connecticut.
The Department of Social Services prepared a child support guidelines worksheet which is incorporated into State's Exhibit A. Tax tables were utilized to afford standard deductions. The average weekly net income was computed to be $2,872.34. The presumptive support order based on this calculation would be $535.00 per week. However, the non-appearing defendant provided no evidence of having actually paid taxes and the disclosure from the Tribe did not list tax deductions. Furthermore, the State argued that the tribal stipend is not subject to federal or state taxes, Accordingly Family Support Magistrate Alvord disallowed the presumed tax deductions. Transcript, 3/5/1999, pp. 3-4. The department proffered an alternative guideline indicating a presumptive order of $947.00 per week. Based on the gross income, the weekly amount would actually go off the schedule of basic support obligations. The court calculated child support based on 18.65% of gross income, which is the approximate percentage at a $1,700 weekly net level. The court also utilized this calculation to determine the arrearages. Transcript, 3/5/1999, pp. 4-10.
The assistant attorney general sent a notice of the default order pursuant to General Statues § 52-362. The notice was sent by certified mail to the same address at which the original process was served. It was signed by a "Donna Sebastian" and filed with the court on April 9, 1999.
General Statutes § 52-362 states, in relevant part: "If the court or family support magistrate issues an order for withholding to be effective immediately against a nonappearing obligor, notice shall be served subsequently upon the obligor in accordance with section 52-57 or sent by certified mail, return receipt requested, to the obligor's last known address, informing such obligor: (A) That a support order has been issued to be enforced by an income withholding order, (B) that an income withholding order has been issued effective immediately as part of the support order, (C) of the minimum amount of income exempt from withholding under state and federal law and of such obligor's right at the hearing on the support order to claim any other applicable state or federal exemptions with respect thereto, (D) of such obligor's right to a hearing, upon motion to the court, to offer any evidence as to why the withholding order effective immediately should not continue in effect, (E) of the amount of income received by such obligor which formed the basis for the support order against such obligor, and (F) of such obligor's right to move to modify the support order if such obligors income has changed substantially or if the support order substantially deviates from the child support guidelines established pursuant to section 46b-215a."
Notice to a non-appearing defendant in a paternity case is also required by General Statutes § 46b-171(c) which states, in relevant part: "(C) In IV-D support cases . . . a copy of any support order established or modified pursuant to this section . . . shall be provided to each party and the state case registry within fourteen days after issuance of such order or determination."
On May 10, 2000 a support enforcement officer, Sylvia Carver, served the defendant in hand with a contempt citation alleging failure to pay the child support order. The citation alleges the amount of the order (stated as $1,136 per week which is the total of the $947 weekly child support plus the $189 per week on the arrearage) and claims a total arrearage of $177,089. The citation was returnable to this court for a hearing on December 12, 2001. The defendant did not appear on that date, but the citation was marked off by the court.
The record does not indicate why the citation was marked off. However, the defendant was incarcerated for most of calendar 2001 and there is no indication that a writ of habeas corpus was issued to secure the defendant's presence in court. It is also noted that the process was served some seven months before the date of the hearing.
In June 2002, the plaintiff, by her counsel, issued another contempt citation. The return of the State Marshal states that service was made "personally with the defendant . . . at the current home of the defendant at 56 Meetinghouse La., Ledyard" on July 6, 2002. That citation commenced the sequence of current issues before the court. On July 30, 2002 the defendant's counsel filed an appearance. Thereafter, defendant, by his counsel, filed a Motion to Dismiss dated September 17, 2002 together with a Supporting Memorandum of Law. The plaintiff, in response, filed a written objection to the Motion to Dismiss, with supporting memorandum. On October 1, 2002 the defendant filed a Motion to Set Aside or Open Judgment. Subsequently, the State, by the Assistant Attorney General, and the plaintiff, by her counsel, have filed written objections to the motion to open, with supporting memorandum of law, thus joining the issues.
I MOTION TO DISMISS
The plaintiff objects to the Motion to Dismiss and has raised procedural and jurisdictional issues. Initially, as the plaintiff asserts, the defendant's motion is unclear as to whether it seeks to dismiss the entire action, or merely the pending contempt citation. The face of the motion states a demand that "the court dismiss the pending Motion for Contempt (filed June 10, 2002)" (emphasis and parenthesis in original). Yet the substantive claims in the motion mostly appear to relate to a challenge to the validity of the initial process rather than the contempt citation. Accordingly, although the motion does not effectively differentiate which claims apply to which proceeding, the court will consider the motion to dismiss as applying to both the contempt citation and the original action.
The plaintiff argues that the defendant failed to comply with the requirements of Practice Book § 10-31 and 11-10 which require the moving party to file a memorandum of law and supporting affidavits. The defendant did file a document on September 17, 2002 entitled "Supporting Memorandum of Law" and another document on October 1, 2002 entitled "Certification of Complainant's Attorney" which defendant argues substantially complies with the practice rules.
The plaintiff rejoined: "The Defendant's so-called memorandum of law is absolutely devoid of any legal authority to support his Motion to Dismiss which accounts in large portion for the difficulty in determining the basis for the Motion to Dismiss." It is true that the documents filed by the defendant fall short of reasonable expectation of supporting memoranda and affidavits. The document labeled "memorandum" contains no supporting authority — no cases are cited, and the only reference to the law is a rote listing of the several sections of General Statutes which relate to the basis of the action and service of process. A recitation of claimed facts follows. This section might be more appropriate in satisfaction of the affidavit requirement except that it is not verified under oath. The same may be said for the several appended documents. The document entitled "Certification" repeats the "memorandum" almost verbatim, with an added statement by counsel that he believes the stated facts to be true. No part of either document is sworn to by the defendant.
The defects raised by the plaintiff are not mere technicalities. The failure of the defendant to personally verify under oath that there is a factual basis for his defense is a serious omission. So is the absence of any substantial legal argument. Nonetheless, the court allowed the defendant to proceed on the substance of the motion: that the person now before the court has a different name than the person served and against whom judgment entered; that the defendant was not properly served the original process and had no notice thereof; and that the financial orders were based on outdated, or incorrect information.
The defendant also failed to comply with Practice Book § 10-30 which requires that a defendant seeking to contest the court's jurisdiction must do so within thirty days of filing an appearance. The plaintiff argues that the court has no authority to consider the motion to dismiss because thirty days after the filing of counsel's appearance, any claims addressed to in personam jurisdiction are deemed waived.
Practice Book § 10-30 states in relevant part: "Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance."
A claim of lack of subject matter jurisdiction cannot be waived. If subject matter jurisdiction is implicated, the motion must be dismissed. Practice Book § 10-33. On the other hand, lack of jurisdiction over the person or insufficiency of service of process is waived if a motion to dismiss is not filed within thirty days of an appearance or in the proper sequence. Practice Book § 10-32.
"A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy." Figueroa v. CS Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1997). "Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged." Demar v. Rocky Hill Open Space Conservation Commission, 211 Conn. 416, 425, 559 A.2d 1103 (1989); Stewart-Brownstein v. Casey, 53 Conn.App. 84, 88, 728 A.2d 1130 (1999).
Where the writ of summons was not signed by a commissioner of the Superior Court or the clerk of the court thus failed to comply with General Statutes § 52-45a and Practice Book § 8-1, it was nonetheless held that the defect did not deprive the court of subject matter jurisdiction, only of jurisdiction over the person, which was waived when the defendants filed appearances. "Defects in process do not deprive a court of subject matter jurisdiction." Plasil v. Tableman, 223 Conn. 68, 78, 612 A.2d 763 (1992); Bridgeport v. Debek, 210 Conn. 175, 178, 554 A.2d 728 (1989).
"Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Emphasis in original, internal quotation marks omitted.) Id., 179-80. "Because the plaintiff's failure to serve the defendants with a writ of summons and complaint as required by § 52-45a implicates only the court's personal jurisdiction, we conclude that the court had subject matter jurisdiction over the action." (Emphasis added.) Connecticut Light Power Co. v. St. John, 80 Conn.App. 767, 772, 837 A.2d 841 (2004).
"Unlike subject matter jurisdiction . . . personal jurisdiction may be created by consent or waiver." United States Trust Co. v. Bohart, 197 Conn. 34, 39, 495 A.2d 1034 (1985); see also Insurance Corporation of Ireland v. Compagnie des Bauxites, 456 U.S. 694, 703-04, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982). "An improperly executed writ or citation does not affect the subject matter jurisdiction of the trial court. As a defect in having the court acquire personal jurisdiction over the defendant, an improperly executed [writ] may be waived by the defendant . . . A defendant may contest the personal jurisdiction of the court `even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of filing an appearance.'" Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 554, 610 A.2d 1260 (1992).
"The rule specifically and unambiguously provides that any claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book § 10-6, formerly § 112. Thus, thirty-one days after the filing of an appearance or the failure to adhere to the requisite sequence, a party is deemed to have submitted to the jurisdiction of the court." Pitchell v. City of Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999).
The defendant claims that at the hearing of July 30, 2002 the parties agreed and the court approved an extension of time for him to file his motion to dismiss. This court is unaware of any provision for parties to agree to a waiver of the 30-day rule, or any authority of the court to grant such a waiver. But even if arguendo such authority existed, the plaintiff strenuously objects that there was any agreement to extend the time for filing a motion to dismiss. The plaintiff's counsel contends that he merely afforded the defendant a courtesy continuance on the pending contempt citation to allow time to file the motion. The agreement to the September date, he argues, was the agreed date of the next court hearing, not an extension to that date for the motion to dismiss.
The court has carefully reviewed the transcript of the July 30 hearing before Family Support Magistrate Wihbey. The transcript simply does not support the defendant's claim. Nowhere is there an indication that the time for filing the motion to dismiss was extended. Attorney Piacenza stated "I understand what's coming, Your Honor, and he's asking for a courtesy continuance, which I've agreed to." (Emphasis added.) Transcript, 7/30/2002, p. 3. In fact, the hearing concluded with a colloquy discussing the fact that the continuance was under the same contempt citation and the court observing that there was no stay on payment of the support order. Transcript, 7/30/2002, pp. 6, 11.
All of the defendant's claims implicate personal, not subject-matter jurisdiction. The defendant's motion to dismiss was filed more than two months after an appearance was filed by his attorney. Any claims of lack of personal jurisdiction and insufficiency of service sufficient to warrant dismissal of the motion were waived. Therefore, the motion to dismiss is denied.
II OBJECTIONS TO MOTION TO OPEN AND SET ASIDE
The March 5, 1999 judgment was passed on a default in that the defendant did not appear and defend. Accordingly, the motion to open and set aside is governed by General Statutes § 52-212 and Practice Book § 17-43 which provide a four-month time period during which the judgment may be set aside. General Statutes § 52-212 and Practice Book § 17-43 (formerly § 377) contain similar although not identical language. The Practice Book section, in relevant part, states: "Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which notice was sent, and the case reinstated on the docket on such terms in respect to costs as the judicial authority deems reasonable, upon the written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. Such written motion shall be verified by the oath of the complainant or the complainant's attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or the defendant failed to appear." This provision is applicable to family matters pursuant to Practice Book § 25-38.
General Statutes § 52-212a and Practice Book § 17-4 apply to a motion to open or set aside any civil judgment. For purposes of the analysis in the main text, there is no significant difference other than as specifically noted. The Practice Book section, in relevant part, states: "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. The parties may waive the provisions of this subsection or otherwise submit to the jurisdiction of the court."
The plaintiff's objection regarding timeliness of the motions implicates the subject matter jurisdiction of the court to grant the motions. "[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." Community Collaborative of Bridgeport Inc. v. Ganim, 241 Conn. 546, 552, 698 A.2d 245 (1997); Golden Hill Paugussett Tribe of Indians v. Southbury, 231 Conn. 563, 570, 651 A.2d 1246 (1995); Pantlin Chananie Development Corp. v. Hartford Cement Building Supply Co., 188 Conn. 253, 258, 449 A.2d 162 (1982); Haigh v. Haigh, 50 Conn.App. 456, 460, 717 A.2d 837 (1998); see also Practice Book § 25-14. It has been repeatedly held that a "trial court lacks jurisdiction to entertain a motion to open the judgment filed outside that four-month period." Bufferd v. Yost, 51 Conn.App. 1, 719 A.2d 487 (1998); Ziruk v. Bedard, 45 Conn.App. 137, 695 A.2d 4, cert. denied, 243 Conn. 905, 701 A.2d 339 (1997); Serrano v. Behar, 15 Conn.App. 308, 311, 544 A.2d 250 (1988).
"After the expiration of the four-month period provided by [Practice Book § 17-4, formerly §]326 a judgment may not be vacated upon the sole ground that it is erroneous in matter of law, except by a court exercising appellate or revisory jurisdiction, unless such action is authorized by statute or unless the error is one going to the jurisdiction of the court rendering the judgment. Halinick v. Collins Co., 116 Conn. 1, 7-8, 163 A. 460 (1932). The court does have inherent authority, however, at any time to open and modify a judgment rendered without jurisdiction. Broaca v. Broaca, 181 Conn. 463, 467, 435 A.2d 1016 (1990)." Misinonile v. Misinonile, 190 Conn. 132, 134-35, 459 A.2d 518 (1983).
"If a court has never acquired jurisdiction over a defendant or the subject matter . . . any judgment ultimately entered is void and subject to vacation or collateral attack." Bartels v. International Commodities Corp., 435 F.Sup. 865, 867 (D.Conn., 1977). Broaca v. Broaca, supra, 181 Conn. 468. See also Centerbank v. Mauri, 18 Conn. L. Rptr. 406 (DiPentima, J., 1997); Shelto v. TZ, Inc., superior court, judicial district of Hartford, doc. no. CV96-0556211 (Freed, J., July 28, 1998) 1998 Ct.Sup. 9604, 9606; Federal National Mortgage Assn. v. Osterberg, superior court, judicial district of Fairfield at Bridgeport, doc. no. 334312 (Ballen, J., February 8, 1999). "As a matter of law, in the absence of jurisdiction over the parties, a judgment `is void ab initio and is subject to both direct and collateral attack.' Broaca v. Broaca [ supra, 181 Conn. 467]; Trichilo v. Trichilo, 190 Conn. 774, 777-78, 462 A.2d 1048 (1983)" Wilkinson v. Boats Unlimited, Inc., 236 Conn. 78, 84, 670 A.2d 1296 (1996).
Notice of the judgment was served in March 1999 to the same abode as the original service. The defendant's challenge to the validity of service of the notice is essentially the same as his challenge to the original process. Because the motion was filed after the four-month window, only the claims relating to jurisdiction can be considered by the court.
The plaintiff also objects to the motion to open, on the grounds that the motion was not verified under oath and stated the nature of the defense only by implication. "[B]oth the statute and the practice book require that the motion to open be verified under oath. The failure to verify the motion to open a judgment deprives the court of jurisdiction to entertain such motion. Crudip v. Land Air Transport, Inc. [Superior Court, Judicial District of Fairfield], Doc. No. CV96-0339107 ([Melville, J.] March 24, 1999) ( 24 Conn. L. Rptr. 259); G.E. Construction, Inc. v. Cherry Hill Construction, Inc., 42 Conn.App. 119, n. 12, 124 (1996)." Pietraka v. Pietraka, 2002 Ct.Sup. 9959 (Wihbey, F.S.M., 2002).
"The opening of judgments upon default is governed by the provisions of [§]52-212 of the General Statutes and [§]17-43 of the Practice Book. Both provisions are very clear in their requirement that not only must the motion show the existence of certain conditions but the motion must be verified by the oath of the complainant or the complainant's attorney, and shall state in general terms the nature of the claim or defense and shall particularly set forth the reasons why the . . . defendants failed to appear. Such verification may be made in an affidavit separate from the motion as long as it is filed prior to adjudication." Telespectrum World v. Mesa Partners, 2000 Ct.Sup. 809 (Karazin, J., Jan. 18, 2000) (Internal quotation marks omitted.); Arcata Investments, Inc. v. Fram, 1999 Ct.Sup. 6252 (May 6, 1999, Mottolese, J.).
In the present case, the defendant's motion to set aside or open judgment, filed October 1, 2002, was accompanied by a document entitled certification of complainant's attorney. The document is signed by Attorney Coric on behalf of the defendant but is not under oath. However, the attorney's signature is preceded by a certification which states: "I hereby certify that the aforementioned facts are believed by me to be true based upon my personal review of the Court's file, personal interviews with the Complainant and his family, and personal review of additional evidence as contained in Complainant's Motion to Dismiss [dated and filed September 12, 2002]." The content of the certification document itself is a nearly verbatim repetition of the text of the motion to dismiss.
The certification document falls short of meeting the statutory and rule requirements. Notwithstanding the attorney's certification that the alleged facts are "believed" by him to be true, the rule specifically requires the verification to be under oath. Here, neither the defendant nor Attorney Coric subjected their claims to oath. The certification does meet the requirement of stating in general terms the nature of the defense. It sets out three general claims: (1) defects in the petition including that the petition names the defendant's father rather than the defendant; (2) defects in service; (3) a factual dispute as to the defendant's income. However, the certification is devoid of any attempt to address the third prong of the requirement, namely that the verification "shall particularly set forth the reason why the plaintiff or the defendant failed to appear."
The court presumes that the certification document was intended to comply with the verification requirement. That the document fails to meet two of the three required elements of the verification and the fact that the motion is not filed by a pro se litigant but rather by counsel inclines the court to sustain the plaintiff's objection. However, in at least one case, Carter v. D'Urso, 5 Conn.App. 230, 234, 497 A.2d 1012 (1985), our Appellate Court suggested a liberal interpretation of the rule might be appropriate if a strict adherence will work a manifest injustice. Accordingly the court will not preclude consideration the substance of the motion to open because of the failure to provide a verification under oath.
III SUFFICIENCY OF ABODE SERVICE
The return of service indicates that the paternity petition was served by a Department of Social Services investigator, Scott S. Boyle, at 4:00 p.m. on December 4, 1998 at 56 Meetinghouse Lane in the Town of Ledyard, which is alleged to be the usual place of abode of the defendant. The investigator also noted on the return of service "verified by cousin." The defendant claims that at the time of service he did not maintain his abode at 56 Meetinghouse Lane in Ledyard.
Service of a paternity petition by an investigator of the Department of Social Services is expressly authorized by statute. General Statutes §§ 46b-160(a), 52-50(c). The defendant does not dispute the authority or qualifications of the officer effecting service.
Service of a writ of summons "shall be made by the officer reading it and the, complaint accompanying it in the hearing of the defendant or by leaving an attested copy thereof with him or at his usual place of abode." (Emphasis added.) General Statutes § 52-54. "Fundamental tenets of due process require that all persons directly concerned in the result of an adjudication be given reasonable notice and the opportunity to present their claims or defenses." Weil v. Miller, 185 Conn. 495, 441 A.2d 142 (1981); Kron v. Thelen, 178 Conn. 189, 193, 423 A.2d 857 (1979); see also Cugno v. Kaelin, 138 Conn. 341, 343, 84 A.2d 576 (1951); Hanson v. Denckla, 357 U.S. 235, 245, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314, CT Page 18171 70 S.Ct. 652, 94 L.Ed. 865 (1950); Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371, 385, 362 A.2d 778, vacated, 423 U.S. 809, 96 S.Ct. 20, 46 L.Ed.2d 29 (1975), on remand, 170 Conn. 155, 365 A.2d 393, cert. denied, 429 U.S. 889, 97 S.Ct. 246, 50 L.Ed.2d 172 (1976); City Trust Co. v. Bulkley, 151 Conn. 598, 601, 201 A.2d 196 (1964); Proctor v. Sachner, 143 Conn. 9, 17, 118 A.2d 621 (1955).
Originally under common law the defendant's physical appearance in the court was required before a judgment would enter. 1 Stephenson, Connecticut Civil Procedure (2d Ed.) § 16b, p. 54. "Emphasis has shifted to `service of process' in such a manner and under such circumstances as `to make it reasonable and just according to our traditional conception of fair play and substantial justice' that the court should proceed to judgment against the defendant." Stephenson, supra, § 16b; International Shoe Co. v. Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 90 L.Ed. 95 (1945). "Proper service of process gives a court power to render a judgment which will. satisfy `due process' under the 14th amendment of the federal constitution and equivalent provisions of the Connecticut constitution and which will be entitled to recognition under the `full faith and credit' clause of the federal constitution." Stephenson, supra, § 16b; Goodrich, Conflict of Laws (4th ed., 1964), § 67.
Proper service of process is a prerequisite to a court's exercise of in personam jurisdiction over a party. Tarnopol v. Connecticut Sitting Council, 212 Conn. 157, 166, 561 A.2d 931 (1989); Board of Education of Wallingford v. Local 1282, 31 Conn.App. 629, 632, 626 A.2d 1314 (1993); General Motors Acceptance Corporation v. Pumphrey, 13 Conn.App. 223, 227, 535 A.2d 396 (1988); Cohen v. Bayne, 28 Conn.Sup. 233, 237-38, 257 A.2d 38 (1969); Dumont, Pleadings and Pretrial Practice, 1995 ed., 33.
"Whether a particular place is the usual place of abode of a defendant is a question of fact. Although the sheriff's return is prima facie evidence of the facts stated therein, it may be contradicted and facts may be introduced to show otherwise." Collins v. Scholz, 34 Conn.Sup. 501, 502, 373 A.2d 200 (1976); Jenkins v. Bishop Apartments, Inc., 144 Conn. 389, 390, 132 A.2d 573 (1957); Cugno v. Kaelin, 138 Conn. 341, 343, 84 A.2d 576 (1951); see also Clover v. Urban, 108 Conn. 13, 17, 142 A. 389 (1928); Coyne v. Plume, 90 Conn. 293, 297, 97 A. 337 (1916); Palmer v. Thayer, 28 Conn. 237, 242 (1859); Grant v. Dalliber, 11 Conn. 234, 238 (1836); Tucker v. Neighborhood Legal Services, Inc., 4 Conn.App. 209, 493 A.2d 278 (1985); Uyen Phan v. Delgado, 41 Conn.Sup. 367, 370, 576 A.2d 603 (1990); Plonski v. Halloran, 36 Conn.Sup. 335, 336, 420 A.2d 117 (1980); Genung's, Inc. v. Rice, 33 Conn.Sup. 554, 558, 362 A.2d 540 (1976); Gillanders v. Dow Corning Corp., Superior Court, judicial district of Waterbury, doc. no. BIK-CV93-0304876 (Feb. 9, 1995, Vertefeuille, J.) ( 13 Conn. L. Rptr. 442); Shemitz v. Simmons, Superior Court, judicial district of New Haven at New Haven, doc. no. CV93-0352991 (Feb. 17, 1994, Hodgson, J.); Udolf v. Swerdloff, 9 Conn. L. Rptr. 15, 8 CSCR 540 (1993); 1 Stephenson, Connecticut Civil Procedure (2d Ed.) § 22a; Joy, Connecticut Civil Officer (19th ed., 1948), 253.
Service would only be valid if it were proven that the officer made service at the correct house. Rodney v. Rodney, 29 Conn.Sup. 92, 272 A.2d 315 (1970); Town of East Lyme v. Huntington, 22 Conn.Sup. 288, 169 A.2d 752 (1961); National Industrial Bank of Connecticut v. Juzwic, Superior Court, Judicial District of New London at Norwich, doc. no. 94048, (Feb. 22, 1991, Axelrod, J.) ( 3 Conn. L. Rptr. 305); Gregory v. Walton, 10 S.M.D. 1, 3 (1996).
"The habitation of a person is his abode." Capitol Light Supply Co. v. Gunning Electric Co., 24 Conn.Sup. 324, 326, 190 A.2d 495 (1963); Cugno v. Kaelin, 138 Conn. 341, 343, 84 A.2d 576 (1951). "The usual place of abode is usually considered to be the place where a person is living at the particular time when service is made." Grant v. Dalliber, 11 Conn. 234, 238 (1836); Collins v. Scholz, supra, 34 Conn.Sup. 503; Cohen v. Bayne, 28 Conn.Sup. 233, 238, 257 A.2d 38 (1969); Murach v. Laing, 8 Conn. L. Rptr. 393 (1993); Deane v. Daley, 8 S.M.D. 67, 68, 9 CSCR 1005 (1994); Pracukowski v. Waldron, 9 S.M.D. 61, 65 (1995); Focus Realty v. Hampford, Superior Court, judicial district of Fairfield at Bridgeport, doc. no. CV92-0298057 (Sept. 28, 1994, Majocco, J.); Miller v. Field, 9 CSCR 494 (1994); Union Trust Co. v. Gotthilf, Superior Court, judicial district of Stamford/Norwalk, doc. no. CV89-0105126 (Feb. 4, 1994, Lewis, J.).
Our law recognizes that a person may have more than one residence. Abode service may be validly made at any usual place of abode, and is not restricted to one particular abode. "One may have two or more places of residence within a State, or in two or more States, and each may be a `usual place of abode.' Service of process will be valid if made in either of the usual places of abode." Clegg v. Bishop, 105 Conn. 564, 570, 136 A. 102 (1927); Dorus v. Lyon, 92 Conn. 55, 101 A. 490 (1917); Capitol Light Supply Co. v. Gunning Electric Co., 24 Conn.Sup. 324, 326, 190 A.2d 495 (1963).
The defendant was cited to appear on January 8, 1999. The court record reflects that on that date the plaintiff mother appeared but the defendant was not present. The plaintiff provided an affidavit indicating that the defendant was not in the military service of the United States. Significantly, in the affidavit, the plaintiff stated under oath that "I spoke w/Mr. Sebastian today (1-8-99)." The court, Langley, F.S.M., found that the defendant was not in the military service and had been properly served at his usual place of abode. However, a default judgment was not entered. Rather, the court continued the matter to February 5 and ordered additional notice of the hearing be provided to the defendant.
On February 5 the defendant once again was not present in court. The court, Alvord, F.S.M., found that the defendant was aware of the hearing and failed to attend. Transcript, 2/5/1999, pp. 2-4. The court then heard testimony of the plaintiff mother and entered a paternity judgment against the defendant. The case was continued again to March 5. Once again the defendant failed to appear. On that date, the court entered the support order and arrearage finding.
According to the transcript, the Assistant Attorney General proferred a written notice of the date, time and place of the hearing which was mailed to the defendant. The following colloquy then took place:
MR. CREAN: "The petitioner also wishes to put on the record that she spoke to him yesterday, and he was aware of today's court date."
THE COURT: "Furthermore, The Court finds for the record that the petitioner has testified that she spoke to the respondent yesterday, that he is aware — that he is aware of today's hearing, and nevertheless is not present to further his rights today." Transcript, 2/5/1999, p. 4.
Technically, the Court's finding was in error, in that the plaintiff did not "testify" that she spoke to the defendant, but rather that was related to the court by the Assistant Attorney General.
This court heard extensive testimony and viewed a number of exhibits as to the contested issue of whether or not the defendant maintained an abode at 56 Meetinghouse Lane in Ledyard at the time the papers were served to that address. It is clear that the defendant lived at numerous addresses during the period from about 1996 until 2000 including 9 Muster Lane, 10 Flint Lock Road in Ledyard, 19 Watson Road in Preston and 854 Shewville Road which was renamed 505 Pequot Trail. In the last three named residences, the plaintiff and the child Shiana resided with the defendant for at least a portion of the time.
The residence on 9 Muster Lane was that of his mother, Donna Sebastian. The defendant lived in his mother's residence until he began cohabiting with the plaintiff. The defendant also resided with his mother after his release from his prison term in 2002. The address of that residence is 56 Meetinghouse Lane. Transcript, 11/6/2002, p. 100.
On direct examination, the defendant testified that he resided at the Shewville Road/Pequot Trail residence until he began serving his prison term on May 16, 2000. Transcript, 11/6/2002, pp. 126-27. He denies residing at 56 Meetinghouse Lane at any time before his release from prison. This claim is corroborated by his mother and by the witness Ruth Thomas, who is the tribal manager of the Mashantucket Pequot Tribal Nation and also a cousin of the defendant.
The defendant called three other witnesses to bolster his claim that he did not maintain an abode at 56 Meetinghouse Lane during the pertinent times. Joyce Warrell and Donald Hartley work for the tribal transportation department and both testified that they provided transportation to the plaintiff and Shiana to visit the defendant at various addresses other than Meetinghouse Lane. Transcript, 11/6/2003, pp. 114-22. Their testimony did corroborate that Mr. Sebastian lived at various addresses during the general time period in question, but failed to support his claim that he did not live at 56 Meetinghouse Lane. Ms. Warrell, in response to the direct question regarding that address, responded "I'm not sure about that one." Furthermore, the absence of any tribal transportation to 56 Meetinghouse Lane would not lend significant support to the defendant's claim, because the subsequent testimony of the plaintiff and Ms. Torres established that the plaintiff's mother, Ms. Torres, provided her transportation during the relevant period. The third witness, Shalita Young, Transcript, 11/7/2002, pp. 127-29 did not lend support to the defendant's claim. Furthermore even if tribal records somehow could confirm the negative, to wit that the defendant was not in residence at 56 Meetinghouse Lane, in view of the defendant's admitted propensity to violate tribal rules, such records would not be of much weight on this issue.
The plaintiff directly contradicts the defendant and his supporting witnesses. According to her, the defendant lived with his mother at 56 Meetinghouse Lane in late 1998 when the papers were served at that address. According to her, she previously lived with the defendant and his mother at 9 Muster Lane and continued to do so for several months after Shiana was born. She then left and moved in with her mother. She did continue a sporadic relationship with the defendant including overnight liaisons at the various addresses claimed. However, she claims that in November or December of 1998 the defendant was temporarily banished from his Shewville Road/Pequot Trail home, and "he couldn't go on his residency at all." Transcript, 11/7/2002, p. 9.
The plaintiff further claimed that in December of 1998 she visited the defendant at his mother's home. She described a specific room in the basement of 56 Meetinghouse Lane which she claimed was his. She claimed that she observed his clothes and furniture in that room, that she spent one night with him there, that she and her mother brought Shiana to that address for visitation with the defendant, and that he told her that is where he was staying. Transcript, 11/7/2002, pp. 9-17. The plaintiff's claims were corroborated, in part, by testimony of her mother, Carmen Torres. Transcript, 11/7/2002. pp. 58-64.
Prior to being incarcerated, the defendant was twice banished by the Mashantucket Pequot Tribe. Banishment, as decreed by the Tribal Elders Council, prohibited the defendant from entering all tribal land. Since the home at 854 Shewville Road/505 Pequot Trail was located on tribal land, this effectively precluded the defendant from lawfully occupying the dwelling during banishment. The defendant provided evidence of a notice of temporary banishment dated April 23, 1999 (Defendant's Exhibit 12). This banishment would not have affected his residency at the time of service of process because it occurred several months later.
On cross-examination the defendant admitted that there was a prior temporary banishment which occurred in late 1998. Transcript, 11/6/2002, p. 135. He admitted that the banishment prohibited him from living at the Shewville Road/Pequot Trail house. He claimed that he essentially violated the banishment order and continued to live there. His testimony was contradictory as to whether he exercised overnight visitation with Shiana at 56 Meetinghouse Lane during this time period. He also claimed that the plaintiff lived with him during the first banishment. Transcript, 11/6/2002, p. 137.
Additionally, the State and the plaintiff both claim that the defendant had actual notice of the paternity action as well as at least two of the court dates. The military affidavit filed by the plaintiff on January 8 indicates under oath that she spoke to the defendant that very day. At the next hearing the plaintiff made the representation through Attorney Crean that she spoke to the defendant the day before the hearing and that "he was aware of today's court date."
The plaintiff did not testify directly, nor was the representation under oath. The trial court at the hearing did not make further inquiry on this issue once the plaintiff was sworn, but did make a finding that the defendant had actual notice of the hearing.
Moreover, at the 2002 hearing Ms. Mejias testified that the defendant not only told her he had received "the papers" but had decided that since they were not served to him in his hand "that he was going to, you know, act like he never knew about it." Transcript, 11/7/2002, p. 19-20. Attorney Crean testified that at the March 5 hearing the plaintiff advised him that Mr. Sebastian was present outside the courthouse. Attorney Crean then went outside with the plaintiff who then pointed him out across the street. Attorney Crean called out his name and the "gentleman I called to turned around and looked at me and proceed (sic) to walk away." Transcript, 11-7-2002, p. 109. Attorney Crean identified the defendant as the person he saw on March 5, 2002 although he conceded that he could not be sure.
After a careful review of the transcripts, the documentary evidence and evaluating the credibility of the witnesses the court finds that the defendant did maintain an abode at 56 Meetinghouse Lane from December 1998 through March 1999. Accordingly the service of process of the paternity petition was valid and the notice of the default judgment was also valid. Testimony of four witnesses Ms. Mejias, Ms. Torres, Mr. Boyle and Attorney Crean, which the court finds in whole or in large part credible, establishes that 56 Meetinghouse Lane was a valid abode, and significantly, that Mr. Sebastian had actual notice of the proceedings.
The court finds the testimony of Mr. Sebastian and his mother, Donna Sebastian, to lack credibility on the specific issue of whether he maintained an abode at the address in question, whether the process and the notice of judgment came to him, whether he had actual notice, and whether he made direct contact with the plaintiff regarding the hearings and even frequented the precincts of the courthouse. The court finds for the plaintiff and the State on all these issues. The court finds the defendant credible on his claim that he maintained other abodes, and that he violated the banishment by, at certain times, occupying the Shewville Road/Pequot Trail home. However, this does not preclude him from simultaneously maintaining an abode at Meetinghouse Lane and the court finds that to be the fact.
Since the State validly served the paternity petition at an abode of the defendant he cannot prevail on his motion to open based on failure of service. Additionally, since notice of the judgment was validly served to the same address the court finds that the four-month limitation applies as to any other basis to open the judgment.
In addition to the notice of default order sent by certified mail and signed for by the defendant's mother, the defendant, in his testimony, acknowledged that the plaintiff told him about the paternity judgment (albeit he claims right before his incarceration) and also acknowledges meeting with a support enforcement officer regarding a contempt citation prior to his incarceration. Transcript 11/6/2002, pp. 128-32, 139-44, 156-72. The court does not find credible his claim that the support enforcement officer dissuaded him from seeking counsel or moving to open the judgment. The court also notes the contradictory testimony of Donna Sebastian. She acknowledged her signature on the postal "green card," indicated that she would have left the papers in a mail slot for the defendant and told him about it "if he came by" and then shortly thereafter recanted the suggested delivery to the defendant by stating ". . . my son didn't come around a lot then at that point in time." Transcript, 11/6/2002, pp. 106-09. Evaluating the credibility of this testimony and testimony of other witnesses regarding subsequent actions and comments of the defendant, the court finds that he had actual notice of the judgment.
IV CLAIMS OF DEFECTS IN THE PETITION
The defendant claims as "defects in the petition" that the State did not have authority to file the paternity petition because the plaintiff "fraudulently applied for AFDC." He also challenges the petition because there is no sworn affirmation of paternity, and because several areas on the original paternity petition "have been altered through the use of wite-out." These allegations do not go to the personal jurisdiction over the defendant or the subject matter jurisdiction, and accordingly are precluded because they were not timely raised by the defendant.
Even had these issues been timely raised it is unlikely that they would have provided cause for the court to deny the petition or reopen the judgment. The defendant has provided no case law or legal analysis as support that the issues cited are indeed "defects" or if so are anything more than trivial. The criteria for the State to commence a paternity petition are set forth in General Statutes § 46b-162. The statute provides, in relevant part: "The state or any town interested in the support of a child born out of wedlock may . . . institute [paternity] proceedings . . ." The only requirement is that the state have an "interest." One cannot read into the statute a requirement that the court, as a matter of jurisdiction must conduct an evidential hearing to determine whether public cash assistance is being paid, much less whether or not the application is "fraudulent."
The most common form of direct public assistance is now called Temporary Family Assistance (TFA) which superceded the former AFDC (Aid for Families with Dependent Children) some years ago. The State has authority to file paternity petitions under this section even where no TFA payments are being made, if for example, prior TFA was granted and later discontinued, or other forms of assistance, such as Husky medical insurance, or day care services are provided by the State, or even, with no public assistance whatsoever, a parent or custodian of the child applies for IV-D services.
With regard to the "defect" based on absence of an affirmation of paternity, the defendant seems to be confusing the requirements of a paternity action with the requirements of a non-judicial paternity acknowledgment. The acknowledgment statute provides that in order for the written acknowledgment of paternity executed by the putative father to be binding absent judicial intervention, it must be accompanied, among other things, by "a written affirmation of paternity executed and sworn to by the mother of the child . . ." General Statutes § 46b-172(a)(1)(B). In contrast the paternity statute contemplates testimony of the plaintiff mother at the court hearing. There is a requirement that the paternity petition be verified, and there is a verification appended to the petition in the present case. The substantive paternity finding was based on sworn testimony of the plaintiff mother at the February 5, 2002 hearing. The defendant has failed to provide any basis for the court to conclude that the absence of an affirmation of paternity in any way diminished the validity of the proceedings or the judgment.
Likewise, the defendant failed to provide any basis for his claim that the existence of correction by wite-out on the face of the petition poses any problem. The existence and cause of the corrections were explained by Mr. Boyle in the course of his testimony. The defendant has not provided any law to suggest that the petition was required to be letter-perfect or that changes made on the face of the document before service on the defendant jeopardized the validity of the process.
V CLAIMED MISNOMER OF THE DEFENDANT
Finally, the defendant claims that he is not the individual cited in the petition and against whom judgment was rendered because his name differs from the name stated in the summons and petition. The person identified in the petition as the defendant is "Don Ricardo Sebastian." The return of service cites abode service upon "Don Ricardo `Rick' Sebastian." The recorded judgment is against "Don Ricardo Sebastian."
The defendant, who was referred to as the "putative defendant" while the name issue remained viable, claims that his name is "Don Ricardo Sebastian, Jr." Several exhibits were offered to support this claim, including a certification of birth registration from the Department of Health of the State of Rhode Island and Providence Plantations (Defendant's Exhibit 1), an identification card issued by the Connecticut Department of Motor Vehicles (Defendant's Exhibit 2), and documents from the Mashantucket Pequot Tribal Nation (Defendant's Exhibits 3, 4, 6, 8 and 12). The defendant claims that "Don Ricardo Sebastian" is actually his father. If it could be proven that the judgment was actually against the "putative defendant's" father, this would implicate the in personam jurisdiction of the court as to the "putative defendant."
The defendant's claims posed the intriguing possibility that the State had actually obtained a valid judgment against his father rather than against him. However, as the hearing progressed, the defendant totally undermined his own claim in that regard.
On November 6, 2002 on the first full hearing day, the defendant's counsel called him to the witness stand. The clerk administered the oath to the defendant, after which the following colloquy took place:
"THE CLERK: Please state your name, spell your last name, and give your address for the record, sir.
"THE WITNESS: Don Ricardo Sebastian, S-e-b-a-s-t-i-a-n. 268 Winnechocka Road in Preston — I mean, North Stonington, Connecticut." Transcript, 11/6/2002, p. 124."
On the following day, Attorney Coric once again called the defendant to the witness standing, this time taking care to specifically call him as "Don Ricardo Sebastian, Jr." The clerk again administered the oath and the following colloquy took place:
"THE CLERK: Please state your name, spell your last name, and give your address for the record, sir.
"THE WITNESS: Don Ricardo Sebastian, S-e-b-a-s-t-i-a-n. 268 Winnechauga Road, North Stonington, Connecticut." Transcript, 11/7/2002, p. 119."
It could not be more clear that the defendant refers to himself, at least on some occasions as "Don Ricardo Sebastian" without the "Jr." Here the defendant knew that the absence of "Jr." on the court papers was a key element to his defense yet on two consecutive days, takes the oath to testify as "Don Ricardo Sebastian" without the "Jr."
The name of the defendant appears in the summons and petition so that the serving officer can identify the person upon whom he must serve the papers. It is also necessary so that the defendant can identify that he is indeed the person being sued and has proper notice so as to pose a defense. Here there is no doubt that the defendant knew that he was the person against whom the claim was made and against whom default judgment was entered. He in fact answers to his name without the "Jr." He was known to the plaintiff as "Ric" and his full name without the "Jr."
Courts have declined to dismiss cases which circumstantially err in omitting a suffix designation or confusing such designation as long as the true party can identify himself. Wright v. Mitchell, 7 Conn. L. Rptr. 751, 7 C.S.C.R. 1080, 1992 Ct.Sup. 6427 (Karazin, J., July 1, 1992). Defects such as the omission of "Jr." are considered circumstantial and are not cause for an action to be abated or set aside. General Statutes § 52-123; Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431, 434-35, 559 A.2d 1110 (1989).
Even if the defendant established that his correct name included "Jr." the designation of him by the purportedly incorrect name is merely a misnomer. It is a circumstantial defect anticipated by General Statutes § 52-123. "When the correct party is designated in a way that may be inaccurate but which is still sufficient for identification purposes, the misdesignation is a misnomer. Such a misnomer does not prevent the exercise of subject matter jurisdiction if the defendant was actually served and knew he or she was the intended defendant." This is in contradistinction to the case in which the plaintiff has misconstrued the identity of the defendant and has therefore named and served the wrong party. Cherry Hill Construction Co., Inc. v. Gateway Plaza, LLC, 2004 Ct.Sup. 1421, 1425-26 (Scholl, J., February 5, 2004); see also 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) 105e, p. 433.
Attorney Coric attempted to rehabilitate the claim on the first occasion through the following testimony:
"Q Mr. Sebastian, can you tell the Court what your legal name is?
"A Don Ricardo Sebastian, Junior."
The defendant presumably argues that notwithstanding his answering to his name without the "Jr." that his "legal name" includes the "Jr." and that he can only be sued and a judgment can only be valid under his "legal name." A recent case issued by the Superior Court while this matter was pending holds that (absent a judicial naming procedure such as a change of name judgment) there is no "legal name" procedure in Connecticut, and in fact an adult may use any name he sees fit as long as it is not utilized for fraudulent purposes. Judge Tierney's analysis of the issue of "legal name" is worth setting forth at length:
No authority has been provided for the procedure in Connecticut for establishing a person's name. By common law, any adult is free to adopt and use any name he sees fit. Lewis v. Scoville, 94 Conn. 79, 85, 108 A. 501 (1919). By custom, the biological parents agree on the child's name. There is no statute regarding the establishment of a legal name other than the three aforementioned change of name statutes. A naming ceremony is not customary in the United States. A naming ceremony is customary in many foreign countries including Nigeria. A naming ceremony is customary in some religions by baptism. There was no baptism or naming ceremony in the present case. There is no Connecticut appellate or trial court case setting forth the procedure establishing a person's legal name in the first instance.
There is no law in Connecticut concerning the following legal name patterns: the proper use of junior, senior or a roman numeral after a name; whether a female can use junior, senior or a roman numeral after her name; the proper number of middle names; the use of a single capital letter in substitution of a first or middle name; the use of a single capital letter as a last name; the use of a number in a name, such as CP3O; the selection of a name not matching the sex of a child; the use of a commonly recognized last name as a first name; the repetition of the same word three times as first, middle and last name, such as Smith Smith Smith; the varieties of spellings of what for generations was a commonly spelled name; the use of a location as a name such as Paris Hilton or Kazakhstan Hilton; and, the variety of pronunciations of a name spelled one way or the same pronunciation of a name spelled a variety of ways.
In researching this decision, the court has inquired of dozens of Connecticut lawyers and judges, and no one has supplied even a portion of an answer to the question: How is a person's legal name established? The value of a person's name has been discussed by philosophers and playwrights for centuries." Regard your good name as the richest jewel you can possibly be possessed of . . ." Socrates (469 B.C.-399 B.C.). "What's in a name? That which we call a rose by any other word would smell so sweet." W. Shakespeare (1564-1616), Romeo and Juliet act II, scene ii, line 43.
Connecticut has a paternity acknowledgment statute: § 46b-172. It only applies to a child born out of wedlock. The use of the paternity acknowledgment form signed by both unmarried parents is in lieu of a formal paternity petition initiated under General Statutes § 46b-160. These two statutes do not apply to parents married to each other. These two statutes do not establish the legal name of the child, which is the subject of either a paternity petition or a paternity acknowledgment. Only the parenthood of the child is established. The paternity acknowledgment "shall be on forms prescribed by the Department of Public Health." General Statutes § 46b-172(a)(3)." All acknowledgments . . . executed in accordance with this subsection shall be filed in the paternity registry established and maintained by the Department of Public Health under [General Statutes §] 19a-42a." General Statutes § 46b-172(a)(3). Section 19a-42a contains no mention of establishing the child's legal name. By common law, a minor child born during its parents' marriage is presumed to be the issue of that marriage. Schaffer v. Schaffer, 187 Conn. 224, 226, 445 A.2d 589 (1982). This common presumption does not establish a child's legal name.
If a child is born out of wedlock in a Connecticut hospital, the hospital "shall provide an opportunity for the mother and putative father to complete a birth certificate and an affidavit of parentage." General Statutes § 19a-505a. There is no other reference in the statutes to "an affidavit of parentage." Presumably, it is the paternity acknowledgment of § 46b-172. An affidavit of parentage has also been referred to as an amendment to an already filed birth certificate in which a change of parentage on the birth certificate is registered. Remkiewicz v. Remkiewicz, 180 Conn. 114, 116, 429 A.2d 833 (1980). In Remkiewicz, the affidavit of parentage was signed and filed with the bureau of vital statistics to change the child's birth certificate to reflect the defendant as her father. The defendant was neither the biological nor the adoptive father of the minor child. The defendant was found not to be responsible to pay child support and the "affidavit of parentage" was not binding.
The mandatory requirements for birth certificates for children born in Connecticut are stated in General Statutes § 7-48(a):" a birth certificate shall be filed with the registrar of vital statistics in the town in which the birth occurred." The section is mandatory if the birth occurs in a hospital, subsection (a); en route to a hospital or at another institution, subsection (b); outside an institution, subsection (c); or, in a moving conveyance, subsection (d). General Statutes § 7-48. This statute only requires a mother or father to file a birth certificate where the birth does not occur in a hospital or other institution or when no physician or midwife either attends the birth or offers post birth assistance. Only in that unlikely event does it appear that a birth certificate form must be filed by a parent. In all other regards, the statutes do not require parents to fill out a birth certificate because the statutory obligation to file birth certificates is on the hospital institution, physician or midwife. Placing the name of the minor child on a birth form is not a statutory requirement even though the forms routinely contain a preprinted section for the child's name.
By statute, the birth certificate is to contain the name of the birth mother. General Statutes § 7-48a. In 1967, the requirement that the father's name be placed on the birth certificate was removed. Public Acts 1967, No. 146; General Statutes. § 7-48. If a licensed person fails to file a birth certificate, their license can be suspended. General Statutes § 7-49. The statutes restrict the information placed on the birth certificate. General Statutes § 7-50. The child's name is not required to be placed on the birth certificate. General Statutes § 7-50. The state regulations concerning birth certificates are silent on confirming the child's name. Even when the mother and father are the statutory birth reporters, certain detailed information must be provided, but the child's name is not required. Regs., Conn. State Agencies § 19a-14-1.
The only statutory reference to the phrase "legal name" is in General Statutes § 7-36(10), relating to the definition section of the duties of the registrar of vital statistics: "`Amendment' means . . . (C) change a certificate of birth, marriage, death or fetal death to reflect facts that have changed since the time the certificate was prepared, including, but not limited to, a legal name change or a modification to a cause of death." The statutes are silent on how a person initially determines a "legal name." The twenty-eight statutes that refer to "birth certificate" are silent on the method of initially establishing a person's "legal name." Thirty-five Connecticut state regulations refer to the term "legal name," requiring that various documents and forms contain the "legal name," "full legal name" or "exact legal name," but those regulations are silent on the method of initially establishing a person's "legal name." CT Page 18183
The only state regulation that refers to methods of establishing a person's "legal name" is relative to obtaining a motor vehicle operator's license. "[T]he commissioner shall presume that the name of the applicant as shown on the applicant's birth certificate, or other primary document submitted as evidence of the applicant's identity, is the legal name of the applicant, and the commissioner shall not place any other name on a motor vehicle operator's license unless the applicant presents an order of the superior court, or other court of competent jurisdiction, pertaining to a change of the applicants name." Regs., Conn. State Agencies § 14-137-63(b). "[T]he commissioner shall accept an original or certified copy of a marriage license or divorce decree for the purpose of establishing the applicant's legal name to be placed on the operator's license issued to the applicant." Regs., Conn. State Agencies § 14-137-63(c).
Shockley v. Okeke, 48 Conn.Sup. 647, 659-63, 856 A.2d 1054, 37 Conn. L. Rptr. 593 (2004).
This court in its own research has uncovered the occasional regulation requiring a "legal name." For example the requirements of filing a complaint with the Freedom of Information Commission include disclosure of "(a) The exact legal name of each person seeking the relief and the address or principal place of business of each such person." Regs., Conn. State Agencies § 1-21j-42(a); Bona v. Freedom of Information Commission, 15 Conn. L. Rptr. 149, 1995 Ct.Sup. 9620, 9624 (Vertefeuille, J., August 10, 1995).
VI CLAIMED DIRECTED TO FINANCIAL ORDERS
The defendant poses what appears to be a claim of mistake in setting the financial orders. He claims that the payroll records in evidence were almost one year old at the time the court calculated the support order and arrearages, were "totally inaccurate when used" and that in any event that the defendant lost his tribal income because of his banishment.
This issue falls into the category of factual dispute. The defendant is precluded from basing his claim for opening the judgment based on disputed facts because he failed to file the motion within the requisite four months. Moreover, other than a bald assertion, the defendant has provided no proof that the evidence was "totally inaccurate." The fact that the records were not precisely contemporaneous with the date of the judgment does not make them inaccurate. In fact, the records utilized are dated September 17, 1998, about six months prior to the date of the computation. Furthermore, had the defendant walked into the courtroom instead of lurking around the outside, he would have ample opportunity to produce records which in his view were more "accurate."
The banishment does not support opening of the judgment. The first temporary banishment occurred around the time the papers were served, but there was no clear evidence that his income was impacted. The second banishment, in which he was notified that financial benefits would be withheld, didn't occur until April — after the judgment had entered. The proper way to raise that issue would be via a motion to modify.
The granting of such motion would have been far from certain, as the plaintiff and the state would likely argue that the defendant self-imposed his adverse change of circumstances.
VII LACHES
The plaintiff argues that even if the defendant had proven sufficient ground to warrant opening of the judgment he should be precluded by reason of laches. "Laches consists of an inexcusable delay which prejudices the defendant." Bozzi v. Bozzi, 177 Conn. 232, 239, 413 A.2d 834 (1979); Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 685, 116 A.2d 906 (1955); Brock v. Cavanaugh, 1 Conn.App, 138, 140, 468 A.2d 1242 (1984); Lownds v. Lownds, 41 Conn.Sup. 100, 551 A.2d 775 (1988); Lynk v. Lynk, 11 S.M.D. 233, 235; Thomas v. Ah Tau Ah Nee, 8 S.M.D. 135, 139 (1994); Samatowitz v. Samatowitz, 4 S.M.D. 30 (1990).
"Laches consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant . . . The mere lapse of time does not constitute laches . . . unless it results in prejudice to the defendant . . . as where, for example, the defendant is led to change his position with respect to the matter in question." (Citations omitted; internal quotation marks omitted.) Papcun v. Papcun, 181 Conn. 618, 620-21, 436 A.2d 282 (1980); Martin v. Harrell, 16 S.M.D. 2002 Ct.Sup. 6995 (2002).
Given the finding by the court that the defendant did receive statutory notice, plus the credible testimony of the plaintiff that she told him of the court proceedings, plus the admitted receipt by him of a contempt citation, the defendant "had ample opportunity [to contest the financial orders] if he so chose, within the statutory time, and incidentally at a time less prejudicial to the State and [the child]." Pullen v. Cox, 9 S.M.D. 134, 144 (1995); Angelus v. Angelus, 20 Conn. L. Rptr. 252 (1997); Perkins v. Perkins, 3 Conn.App. 322, 487 A.2d 1117 (1985). "Whether the issue `was actually litigated is immaterial in view of the necessary conclusion that there was full opportunity to litigate it and that it was adjudicated by the decree.' Jackson v. Irving Trust Co., 311 U.S. 494, 503, 61 S.Ct. 326, 85 L.Ed. 297 (1941)." Perkins, supra, 3 Conn.App. 327. See also Pagani v. Davis, Superior Court, judicial district of Hartford/New Britain at Hartford, doc. no. 602649 (Kaplan, J., July 18, 1991); Bleidner v. Searles, 19 Conn.App. 76, 561 A.2d 954 (1989); Rucker v. Brown, 17 S.M.D. (Strada F.S.M., Jan. 15, 2003); White v. Cordier, 14 S.MD 27 Conn. L. Rptr. 365 (2000).
Here the defendant did not exercise reasonable diligence by appearing in court to answer the original petition, or moving timely to open the judgment, or even by motion to modify. His delay was not excusable and did prejudice the interests of the child and the state. Castonguay v. Plourde, 46 Conn.App. 251, 265, 699 A.2d 226, cert. denied 243 Conn. 931, 701 A.2d 660 (1997); Rivera v. Gonzalez, 16 S.M.D. ___, 2002 Ct.Sup. 11543 (2002); White v. Cordier, 14 S.M.D. 27 Conn. L. Rptr. 365, 2000 Ct.Sup. 6486 (2000); Joseph v. Lilburn, 14 S.M.D. (2000).
The defendant is barred from opening the paternity acknowledgment by laches.
VIII CONTEMPT
The lengthy hearing, protracted negotiations, and time to prepare this decision have effectively deprived the plaintiff and the State from a hearing on the merits of the contempt citation. To the extent that the defendant's motion to dismiss implicates the contempt citation, it is denied. The contempt citation itself was validly served. Since the court has rejected the defendant's claims regarding service of the initial petition and the alleged misnomer regarding the defendant's name, the collateral attack on the contempt citation must also fail.
The defendant is ordered to appear with counsel before the Family Support Magistrate at 1 Courthouse Square in Norwich at 9:30 a.m. on Wednesday, December 22, 2004 to answer to the contempt citation. He is required to comply with the full periodic order in the interim. Any lump sums proferred to mitigate the contempt shall be paid to support enforcement prior to the commencement of the hearing. All payments are to be made to support enforcement and not directly to the plaintiff or her counsel. The defendant shall be afforded an opportunity for a full hearing, including the issue of ability to pay.
By the Court
Harris T. Lifshitz Family Support Magistrate