Opinion
FA144124895S
12-02-2015
William H. Russell v. Carolyn M. Russell
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO DISMISS (NO. 113)
Susan A. Connors, J.
This matter comes before the court on the plaintiff's motion to dismiss. After careful consideration of the facts, the evidence, the parties' briefs, and the argument of counsel, the court concludes that the plaintiff was sufficiently served with process and therefore respectfully denies his motion to dismiss.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The plaintiff filed this dissolution of marriage action on September 29, 2014. A judgment of dissolution entered on January 12, 2015. On April 23, 2015, the defendant filed a motion to open the dissolution judgment. The motion to open requests that the judgment be opened for the following reasons: the plaintiff violated the judgment's Automatic Orders one, two, four, six, seven, and eight; defrauded the court and the disabled defendant; caused the defendant to sign deeds and/or pleadings without full understanding while under duress from the plaintiff, and dispossessed the defendant of all assets. On May 26, 2015, the plaintiff filed a motion to dismiss the defendant's motion to open on the grounds of insufficiency of process and insufficiency of service of process. The matter was scheduled for a hearing on June 15, 2015. On June 15, 2015, prior to the commencement of the hearing, the defendant filed an objection and a memorandum in opposition to the plaintiff's motion. Oral argument and an evidentiary hearing was held on that day. The plaintiff presented no testimony or witnesses, but instead relied on the evidence in the court file to support his argument. Subsequent to the hearing, the parties entered into settlement negotiations. On November 19, 2015, the court held a status conference, during which it was reported that the settlement negotiations were not successful and that there was no further evidence to be offered in connection with either the plaintiff's motion or defendant's objection thereto. Pursuant to Practice Book § 11-19 both parties stipulated to a waiver of the 120-day rule with respect to the issuance of this decision.
DISCUSSION
" [A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A motion to dismiss shall be used to assert: . . . (3) insufficiency of process; and (4) insufficiency of service of process." Practice Book § 10-30(a); see also Practice Book § 25-13(a) (providing grounds for motion to dismiss in family matters). " The determination of personal jurisdiction requires a two-fold approach. First, the court must determine whether the statutory requirements for service of process on a nonresident defendant, pursuant to § 46b-46, were satisfied. Second, whether the exercise of personal jurisdiction complies with the due process clause of the fourteenth amendment." Reza v. Leyasi, Superior Court, judicial district of New Haven, Docket No. FA-02-0463536-S, (May 24, 2004, Kenefick, J.), aff'd, 95 Conn.App. 562, 897 A.2d 679 (2006).
In support of his motion to dismiss, the plaintiff argues that the court should grant his motion to dismiss and deny the defendant's motion to open because the defendant failed to properly serve the plaintiff in this matter. Specifically, the plaintiff argues that the defendant has failed to provide proof of service within six days of the hearing on the motion and without this proof of service, the defendant cannot meet her burden of proving that the plaintiff was served with notice within twelve days of the hearing. Further, the plaintiff argues that the defendant mailed a copy of the motion to open judgment to an improper address, the parties' prior marital home address, though she was aware of the plaintiff's proper address in Thailand. Finally, the plaintiff argues that service to his former counsel of record is improper because said counsel did not represent the plaintiff postjudgment. Alternatively, the plaintiff argues that even if the defendant asserts that the plaintiff had actual notice of her motion, proper service must still be made.
In response, the defendant makes several arguments in opposition to the plaintiff's motion to dismiss. Specifically, the defendant argues that Attorney Edward Bona, the plaintiff's previous counsel who remained counsel of record at the time the defendant filed her motion to open, communicated to the defendant's counsel that he notified the plaintiff of the subject motion and further stated that the plaintiff communicated in response that he was aware of the issues in the motion and that a date was set for a hearing on the motion. Further, the defendant argues that the plaintiff should have anticipated being subject to further proceedings in Connecticut in connection with the divorce judgment because he purposefully availed himself of the benefits and protections of Connecticut law when he brought the dissolution action.
In addition to these arguments, the defendant further argues that (1) the plaintiff has not accurately represented the facts to the court because the defendant did not have the plaintiff's out-of-state address at the time of filing her motion to open as the plaintiff argues, and the parties never entered into an uncontested marriage dissolution agreement, but rather, the defendant signed a dissolution agreement with the plaintiff under duress and based on fraud; (2) the plaintiff's motion to dismiss is misplaced because he filed a general appearance on May 21, 2015; (3) the plaintiff's motion to dismiss is further misplaced because after reviewing the Marshal's return of service on May 27, 2015, the plaintiff cited no basis for an objection to service; (4) service upon the plaintiff was timely made for the May 27, 2015 hearing because the Marshal sent the plaintiff the motion to open on April 30, 2015, via United States Postal Service (USPS) Registered Mail Return Receipt and Express Mail, at the forwarding address he left with the USPS; (5) her counsel timely filed the Marshal's return of service for the USPS mailings with the Clerk of the Superior Court at Norwich on May 20, 2015; (6) her service on the Secretary of State effectuated proper service on the plaintiff because he has ongoing business contacts with, and he committed tortious acts in, Connecticut; and (7) the plaintiff has engaged in manipulation of the legal system and acts which give rise to criminal prosecution, including the deprivation of the defendant's due process right to an attorney in the divorce proceeding.
I. Notice Requirement of General Statutes § 46b-46
The applicable long-arm statute here is General Statutes § 46b-46(b). Section 46b-46(b) states: " (b) the court may exercise personal jurisdiction over the nonresident party as to all matters concerning temporary or permanent alimony or support of children, only if: (1) The nonresident party has received actual notice under subsection (a) of this section; and (2) the party requesting alimony meets the residency requirement of section 46b-44." General Statutes § 46b-46(b). Section 46b-46(a) provides, " [o]n a complaint for dissolution, annulment, legal separation or custody, if the defendant resides out of or is absent from the state or the whereabouts of the defendant are unknown to the plaintiff, any judge or clerk of the 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 . . ." See also Practice Book § 25-28(b) (" With regard to any postjudgment motion for modification or for contempt or any other motion requiring an order of notice, where the adverse party resides out of or is absent from the state any judge or clerk of the court may make such order of notice as he or she deems reasonable. Such notice having been given and proved, the court may hear the motion if it finds that the adverse party has actually received notice that the motion is pending").
General Statutes § 46b-44 provides, in pertinent part, the following: " (a) A complaint for dissolution of a marriage or for legal separation may be filed at any time after either party has established residence in this state . . ."
" Section 46b-46(b) is a long arm statute applicable to all matters concerning alimony and support, and is not limited to complaints for dissolution, annulment, legal separation and custody." Cashman v. Cashman, 41 Conn.App. 382, 387, 676 A.2d 427 (1996). " The plain meaning of § 46b-46(b) allows a trial court to exercise jurisdiction over a nonresident [party] concerning alimony if the notice requirements of subsection (a) are satisfied. Subsection (a) authorizes the court to hear the [subject pleading] if the nonresident [party] has received such notice or if a reasonable effort to afford the nonresident [party] with notice has been made." Reza v. Leyasi, supra, Superior Court, Docket No. FA-02-0463536-S, . In the present case, the defendant's motion to open the dissolution judgment is a matter concerning alimony and support; namely, her claim that the plaintiff dispossessed her of all assets through fraud and duress, and therefore the court finds that § 46b-46(b) is applicable.
Primarily, it is undisputed that the defendant meets the residency requirement of § 46b-44, and thus satisfies subdivision (2) of § 46b-46(b). During the evidentiary hearing for the plaintiff's motion to dismiss, the parties stipulated to the residency of both parties at the time of the dissolution judgment and the plaintiff conceded that the defendant lived in Connecticut at the time of the hearing. Furthermore, the summons accompanying the divorce complaint lists 399 Laurel Hill Avenue, Norwich, Connecticut as the address for both parties, and the defendant's motion to open lists the defendant's address as 44 Maritime Drive, Mystic, Connecticut, 06355. Therefore, the remaining issue before the court is whether the plaintiff received actual notice of the defendant's motion to open and its corresponding hearing, so as to satisfy the notice requirement of § 46b-46(b)(1).
Turning to § 46b-46(b)(1), the plaintiff does not dispute that he had actual knowledge of the defendant's motion to open. Instead, he argues that the defendant failed to effectuate sufficient personal service of process and to provide proper proof of notice to the court, as required by Practice Book § 25-28(b). To support these arguments, the plaintiff cites Alldred v. Alldred, 132 Conn.App. 430, 31 A.3d 1185 (2011), appeal dismissed, 303 Conn. 926, 35 A.3d 1075 (2012). In Alldred, almost three years after the dissolution judgment entered and more than one year after counsel last appeared for the plaintiff on postjudgment motions, the defendant attempted to serve the plaintiff, who resided in Austria, with two postjudgment contempt motions by mailing copies of the motions to the plaintiff's former counsel of record. Id., 432-33. The Alldred court held that mere knowledge of the postjudgment contempt proceedings was insufficient to confer personal jurisdiction over a party who has not been properly served. Id., 437-38.
This court, however, finds the Alldred case to be distinguishable from the present case. Primarily, unlike in Alldred, where the postjudgment motions for contempt were brought almost three years after the dissolution judgment, the defendant in the present case filed her motion to open within four months of its entry date, in accordance with General Statutes § 52-212a, and prior to the automatic withdrawal of counsel, pursuant to Practice Book § 3-9(d). Further, while the Alldred court held that actual notice was not enough to confer personal jurisdiction over the plaintiff in postjudgment contempt proceedings, it did not hold that the personal service requirement is likewise necessary for motions to open dissolution judgments, and the plaintiff has not provided any authority stating such a holding. Rather, the plaintiff attempts to analogize motions for contempt and motions to open by arguing that the same reverence given to postjudgment motions for contempt should likewise be given to motions to open because both require discovery, hearings, and testimony, and both significantly impact the party against whom they are brought. While a motion to open may result in a significant impact on a party, " [a] motion for contempt, if granted, can result in a loss of liberty"; (Internal quotation marks omitted.) Alldred v. Alldred, supra, 132 Conn.App. 433; whereas a motion to open a dissolution judgment alone cannot effectuate the same weighty result. Therefore, the court does not find the holdings of the Alldred case to be instructive as to the notice requirement of § 46b-46(b)(1) in the context of the motion to open in this case.
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 . . ."
Practice Book § 3-9(d) provides the following: " 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 . . . provided no appeal shall have been taken. In the event of an appeal or the filing of a motion to open a judgment within such 180 days, all appearances of counsel shall be deemed to have been withdrawn after final judgment on such appeal or motion or within 180 days after the entry of the original judgment, whichever is later . . ."
" An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." (Internal quotation marks omitted.) Cato v. Cato, 226 Conn. 1, 8, 626 A.2d 734 (1993). " The purpose of an order of notice is to ensure that the defendant actually receives notice." Id.
In the present case, the defendant's motion to open lists the plaintiff's address as " LKA 399 Laurel Hill Avenue, Norwich, CT 06360." The defendant argues that at the time she filed the motion to open, the only address she had for the plaintiff was this address in Norwich. Defendant further argues, however, that prior to the issuance of the order of notice she engaged the services of a Marshal to see if the plaintiff had a forwarding address with the United States Postal Service. The Marshal obtained the plaintiff's address in Thailand, which the defendant subsequently listed on the order of notice. The order of notice found that the plaintiff lived out of state at House 206 Village 1 Du Tai, Muang District NAN, Provthailand 2500, and ordered the defendant to effectuate service of process on the plaintiff by sending the subject motion to the Thailand address via registered mail, return receipt requested. According to the supplemental return of service, on April 30, 2015, a Marshal served the plaintiff via registered mail, return receipt requested, and express mail in Thailand, and via abode service in Norwich. On May 27, 2015, the Marshal received confirmation of delivery of the registered mailing on May 14, 2015, and of delivery of the express mailing on May 6, 2015. While the defendant did not submit a return receipt of the registered mailing to the court, the court nonetheless finds that the Marshal's supplemental return, with its attached United States Postal Service tracking printouts confirming delivery of both the registered and the express mailings to the plaintiff's address in Thailand, demonstrates that the defendant carried out the order of notice, which was reasonably calculated to apprise the plaintiff of the pending motion to open.
Furthermore, the court finds that the plaintiff's actual knowledge of the defendant's motion to open and the corresponding hearing, as evidenced by a May 8, 2015 email message, which was marked as full Exhibit A in the motion to dismiss evidentiary hearing, is sufficient to demonstrate the actual notice requirement of § 46b-46(b)(1). This email message was from the plaintiff's then counsel of record, Attorney Bona, to the defendant's counsel informing her that notified the plaintiff of the issues contained in the subject motion and that a hearing was to take place on May 27, 2015 at 2:00 P.M. at the Norwich Superior Court. The plaintiff was copied on this email message which was sent by Attorney Bona five days before he withdrew from the case on May 13, 2015. For these reasons, the court finds that the plaintiff had sufficient actual notice of the defendant's pending motion to open, pursuant to § 46b-46(b)(1).
II. Due Process Clause of the Fourteenth Amendment
In light of the conclusion that the notice requirement of § 46b-46(b) is satisfied in the present case, the court now addresses whether the exercise of personal jurisdiction over the defendant complies with the due process requirement of the fourteenth amendment to the United States constitution. See Cashman v. Cashman, supra, 41 Conn.App. 388. " As articulated in the seminal case of International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the constitutional due process standard requires that, in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice . . . The due process test for personal jurisdiction has two related components: the minimum contacts inquiry and the reasonableness inquiry. The court must first determine whether the defendant has sufficient contacts with the forum state to justify the court's exercise of personal jurisdiction." (Citation omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 523-24, 923 A.2d 638 (2007).
" A state court will have specific jurisdiction over a nonresident [party] whenever the [party] has purposefully directed [his] activities at residents of the forum . . . and the litigation [has] result[ed] from alleged injuries that arise out of or relate to those activities . . . (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 524. " Once minimum contacts have been established, [t]he second stage of the due process inquiry asks whether the assertion of personal jurisdiction comports with traditional notions of fair play and substantial justice--that is, whether it is reasonable under the circumstances of the particular case." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., supra, 282 Conn. 525.
" If a state obtains judicial jurisdiction over a party to an action, the jurisdiction continues throughout all subsequent proceedings which arise out of the original cause of action. Reasonable notice and reasonable opportunity to be heard must be given the party at each new step in the proceeding . . . Under the doctrine of continuing personal jurisdiction, once a divorce judgment is granted by a court with personal jurisdiction, neither party can escape jurisdiction in future proceedings that attempt to modify or alter the judgment." (Citations omitted; internal quotation marks omitted.) Cashman v. Cashman, supra, 41 Conn.App. 389-90. In Cashman, the Appellate Court held that the nonresident plaintiff established sufficient contacts with Connecticut when he filed for dissolution in this state. Id., 390. Further, it held that by bringing the action for dissolution in Connecticut, the plaintiff could have reasonably anticipated being amenable to further legal proceedings in connection with the Connecticut judgment of dissolution. Id. Based on these minimum contacts, the Cashman court held that the trial court's exercise of jurisdiction over the defendant's motion for modification of alimony did not offend traditional notions of fair play and substantial justice. Id., 385, 390-91.
In the present case, the court's exercise of jurisdiction over the plaintiff likewise does not violate his due process rights. The plaintiff does not dispute that this court had personal jurisdiction over him when it entered the dissolution judgment. While the plaintiff is currently a nonresident, he himself established sufficient contacts and submitted to the jurisdiction of the court when he filed for divorce in Connecticut on September 29, 2014. As held by the Appellate Court in Cashman, by bringing the divorce action, the plaintiff purposefully availed himself of the benefits and protections of the state and could have reasonably anticipated being amenable to further legal proceedings in connection with the state's judgment of dissolution. Once this court obtained personal jurisdiction over the plaintiff in the dissolution action, it retained continuing jurisdiction over any subsequent proceeding that attempts to modify or alter the dissolution judgment. Based on these sufficient contacts, the court's exercise of personal jurisdiction over the plaintiff in this case does not offend traditional notions of fair play and substantial justice.
CONCLUSION
For the foregoing reasons, the court finds that it has personal jurisdiction over the plaintiff, pursuant to § 46b-46(b), and thus can consider the defendant's motion to open the dissolution judgment. Therefore, the plaintiff's motion to dismiss is denied.