Opinion
No. KNO FA 08-4107505 S
April 15, 2008
MEMORANDUM OF DECISION ON MOTION TO DISMISS
This is an action initiated by the putative father of a minor child for custody and visitation, naming the child's mother as respondent. He filed it here on January 10, 2008, and on February 4 the mother appeared herein through counsel. Before the court is her motion to dismiss dated March 4 and moving that "the present action be dismissed because of insufficiency of process. Defendant was not served in hand or at her abode. At the time of the reputed service, Defendant was not residing at address sited, as shown on the attached lease" (sic). She filed a memorandum of law in support on March 11, to which also is appended a copy of apparently the same lease. No affidavit accompanies either document. Petitioner objects to the motion. On April 10, the court held a hearing on the motion.
Practice Book § 10-31 provides that a party may file a motion to dismiss to assert, inter alia, insufficiency of process, and insufficiency of service of process. These terms are not redundant. The motion claims that the former occurred, but supports that claim with allegations which are pertinent to a claim of the latter. The court will interpret the motion as claiming only an insufficiency of service of process, since that is the proper designation for a deficiency arising from service upon a party at a residence which is not the place of abode of that party.
The marshal's return in this case indicates that process was left on January 31, 2008, "at the usual place of abode of the [defendant], 161 Connecticut Blvd., Oakdale, CT." The return is prima facie evidence of the facts stated therein. Cugno v. Kaelin, 138 Conn. 341, 343, 84 A.2d 576 (1951). "Where the [marshal's] return shows abode service in Connecticut, the burden rests on the defendant to prove insufficiency of service of process . . . That is, the defendant bears the burden of proving that service was not made at his usual place of abode . . ." Jakubowski v. Wilcox, 23 Conn. L. Rptr. 435 (1998, Mihalakos, J.). Although the motion contained no affidavit, and although, over plaintiff's protest, the memorandum of law that ought to have accompanied the motion was not filed until a week later, this court conducted an evidentiary hearing on April 10 to allow this claim to be resolved fairly.
At that hearing, defendant did not appear in person. The prime witness for her position was her mother, Lori Girard. Ms. Girard testified that her daughter, now 18 years old, had moved from her residence on January 4 to an apartment in Norwich. The apartment is allegedly that identified in the lease attached to the motion. However, defendant made no attempt to offer the lease as an exhibit at the hearing. The lack of an affidavit authenticating the lease, and the failure to offer that document as an exhibit at the hearing, render its import evanescent.
Additionally, Ms. Girard established that throughout the month of January Karissa was in the 161 Connecticut Blvd. address on a daily basis, as she utilized the witness to care for the infant who is the subject of this action. The witness testified that while she did not give the papers left at the home to her daughter, she did provide a copy of them to the daughter's attorney who has appeared herein on her behalf and who filed the motion now under consideration. Significantly, too, the unrebutted testimony of the petitioner establishes beyond dispute that the defendant has at all times pertinent hereto had actual notice of the pendency of this action and the dates on which court hearings have been scheduled, and the court specifically finds that she has such actual notice.
Ms. Girard went on to testify that the defendant is now a resident of the state of Florida, having moved there on or about February 19. She is living there with her maternal grandmother, and thinking about finishing her education. February 19 is certainly well after the date of service and by itself in no way undercuts the validity of the abode service. The question is whether the mother's home was, on January 31, defendant's usual place of abode.
It is axiomatic that
What constitutes a defendant's dwelling house or usual place of abode depends upon the facts of each particular case. Factors which are considered in determining whether a place is a defendant's usual place of abode include the retention of a room and storage of possessions there, the intention to return, the use of that address on official forms such as drivers' licenses and voters' registrations, the use of a telephone listing at that location, a failure to provide the post office with a forwarding address, the receipt of actual notice, and the defendant's ability to present at least some evidence that his or her abode is elsewhere.
Am.Jur.2d, Process, § 195
In analyzing those factors, the court is aware also that a person may have more than a single place of residence, and that service upon her at either of those places is sufficient under our statute. Clegg v. Bishop, 105 Conn. 564 (1927). Further, the receipt of actual notice is an important component of the analysis since the purpose of the statute's provision for substituted service is, in the end, to ensure actual notice upon a litigant of the existence of a lawsuit. Smith v. Smith, 150 Conn. 15 (1962). Indeed, this factor has been cited as one which relaxes the otherwise strict construction which must be afforded to the statute's directives. Plonski v. Halloran, 36 Conn.Sup. 335 (1980, Aspell, J.).
Two decisions considering the issue raised here are illustrative contrasts in how the question must be answered. In Collins v. Scholz, 34 Conn.Sup. 501 (1976), the Superior Court Appellate Session affirmed a finding that a particular Connecticut address was not the abode of the defendant at the time service upon him there was attempted, on October 12, 1974. The court had also found that while that address was the home of the defendant's parents, he had moved to Michigan with apparent intention of making that state his permanent abode some three or four months earlier, had left no forwarding address with them, and did not learn of the existence of the action until he returned to this state for Thanksgiving (by which time he had been defaulted and a judgment had entered against him). Capitol Lgt. Supply v. Gunning Elec. Co., 24 Conn.Sup. 324 (1963, Cotter, J.), however, examined service upon an unmated 28-year-old man at the home of his parents on November 22, 1962. He had been a resident of that home for several years and some weeks before had applied for a motor vehicle license renewal indicating it remained his residence. He did not change his voting registration listing that as his address. Despite a relative's testimony that he had left for New York state the previous July, the court denied a motion to dismiss for insufficient service under the abode service statute.
The facts of this case are closer to those of Capitol Lighting than to Collins, and the findings that Karissa Girard both had actual notice of these proceedings and was in her mother's home on a daily basis throughout January provide additional confidence to this court in ruling upon the instant motion. What she has established, at best, is that she is a young woman in a transient state who has not yet settled in any home other than that of her mother. She has done nothing more than create a cloud of fog as to any different residence on the relevant date, and it is not sufficient to sustain her burden of proof on this issue.
Accordingly, the motion to dismiss for insufficiency of service of process is denied.