Opinion
LLIFA156012510S
02-10-2016
Sandra Schafer v. Morgan Schafer
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#101)
HON. RUPAL SHAH, J.
The plaintiff, Sandra Schafer, filed a complaint, dated August 4, 2015, seeking a legal separation from the defendant. The defendant, Morgan Schafer filed a motion to dismiss (#101) on August 24, 2015, asserting lack of personal jurisdiction due to insufficient service of process. The court heard evidence on the defendant's motion to dismiss on January 22, 2016. The court finds that the defendant was not properly served and grants the defendant's motion to dismiss.
The plaintiff subsequently amended the complaint seeking dissolution of marriage.
The court also asked the parties to submit briefs regarding the court's subject matter jurisdiction based on the initial pleadings. Although the court heard evidence regarding this issue, the court will not address the court's subject matter jurisdiction given its findings regarding the defendant's claim of insufficient service of process.
I
Through the testimony of the plaintiff, the defendant's two adult daughters, and the documentary evidence provided, the court finds the following facts. The parties were married in Canaan, Connecticut on July 31, 1971. The parties resided for many years thereafter at 15 Morgan Lane, Taconic, Connecticut (the Morgan Lane property). In 1993, they purchased a residence in Florida and changed their domicile to Florida in 1995. They spent the colder months in Florida and still spent many months in Connecticut, typically from late April until October of each year.
On July 26, 2015, the parties were staying at their Connecticut residence. The plaintiff and the defendant had a very serious argument, and the plaintiff ended up leaving the residence very upset. She stayed with her daughter, Cheryl, that night and called the defendant the next day asking him to leave the residence so that she could return and stay there. For the plaintiff, the argument was an accumulation of issues over the years but determinative of the end of their marriage. She returned to the Morgan Lane house the next day and the defendant stayed with his daughter, Elizabeth, at 152 South Shore Road in Salisbury (the South Shore Road property), his daughter's vacation home, until he returned to Florida on August 5, 2015.
In the meantime, the plaintiff met with an attorney and filed the present action for a legal separation. She had the defendant served by having a marshal leave the complaint at 152 South Shore Road, Salisbury, Connecticut, his daughter's residence, on August 5, 2015. By this time, the defendant had already left the South Shore Road property to return to his residence in Florida on a flight scheduled that day. The defendant's other daughter, Katherine, only found the complaint the next day when she went to check on the house, since both her sister and father had returned to Florida. Katherine subsequently notified the defendant of the complaint.
II
Motions to dismiss in family matters may be filed pursuant to Practice Book § § 25-12, 25-13. Grounds for a motion to dismiss include (1) lack of subject matter jurisdiction, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. Practice Book § 25-13.
" [A]n action commenced by . . . improper service must be dismissed." (Internal quotation marks omitted.) Matthews v. SBA, Inc., 149 Conn.App. 513, 530, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014). " [W]hen a particular method of serving process is set forth by statute, that method must be followed . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction . . . The jurisdiction that is found lacking . . . is jurisdiction over the person . . ." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011). " Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction . . . 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." (Internal quotation marks omitted.) Id., 401.
III
The defendant argues that the court lacks jurisdiction because the plaintiff failed to properly serve him with the complaint. The court agrees.
" 'The Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction.' . . . Kim v. Magnotta, 249 Conn. 94, 101-02, 733 A.2d 809 (1999). '[W]hen a particular method of service of process is set forth by statute, that method must be followed . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction.' . . . Commissioner of Transportation v. Kahn, 262 Conn. 257, 272, 811 A.2d 693 (2003). 'A proper officer serving process must comply with the provisions of [General Statutes] § 52-57(a), which require that process be served by leaving it with the defendant, or at his usual place of abode . . . Abode service is not effective if it is left at an address that is not the usual address of the party to be served, and an action commenced by such improper service must be dismissed.' . . . Hibner v. Bruening, 78 Conn.App. 456, 463, 828 A.2d 150 (2003); see also Practice Book § 10-13." Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008).
" Proper service of process is not some mere technicality. 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." (Internal quotation marks omitted.) Weihing v. Dodsworth, 100 Conn.App. 29, 33 n.3, 917 A.2d 53 (2007).
General Statutes § 46b-45(a) provides in relevant part: " A proceeding for annulment, dissolution of marriage or legal separation shall be commenced by the service and filing of a complaint as in all other civil actions in the superior court for the judicial district in which one of the parties resides . . . The complaint shall be served on the other party."
General Statutes § 52-57(a) provides: " Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state."
The court notes that while there are statutory provisions for service of process on a defendant outside of the state, General Statutes § 52-57a, and the granting of an order of notice in lieu of service of process, General Statutes § 46b-46, the plaintiff did not attempt to satisfy the requirement of service of process under either of these methods.
" For service pursuant to § 52-57(a), the 'usual place of abode' presumptively is the defendant's home at the time when service is made. Grant v. Dalliber, 11 Conn. 234, 237-38 (1836). Whether a particular locale is the usual place of abode is a question of fact. Collins v. Scholz, 34 Conn.Supp. 501, 502, 373 A.2d 200 (1976)." Jimenez v. DeRosa, supra, 109 Conn.App. 338.
" 'Neither the Supreme Court nor the Appellate Court have defined " usual place of abode." . . . However, Superior Court decisions have discussed the phrase. For example . . . it was stated that a person's usual place of abode is the place where the person is living at the time of service. A usual abode has also been referred to as the place where the defendant would most likely have knowledge of service of process . . . It should be noted that usual abode need not be a person's domicile . . . Rather, an abode is similar to a residence in that a person can have more than one . . .' Altemos v. Professional Services Group, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 08 5014532 (July 21, 2008, Arnold, J.) (46 Conn. L. Rptr. 43, 44, *7)." Boggan v. Koldys, Superior Court, judicial district of Hartford, Docket No. CV-13-6042627-S, (April 25, 2014, Peck, J.). " 'The place of abode must be " usual" . . .' [t]hus, 'the duration of past or contemplated future occupation is a significant factor.' [ Gondek v. Haugwitz-Reventlow, Superior Court, judicial district of Hartford, Docket No. 387870 (June 18, 1991, Wagner, J.) ], citing 1 Stephenson, Conn. Civ. Proc. (2d Ed.) 24, p. 78." Shawmut Bank Connecticut, N.A. v. Cook, Superior Court, judicial district of Middlesex, Docket No. CV-94-73915-S, (February 23, 1995, Walsh, J.).
" '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.' Lovely v. Tremblay, Superior Court, judicial district of New London at Norwich, Docket No. FA 04 4102001, (September 8, 2008, Boland, J.)." Boggan v. Koldys, supra, Superior Court, Docket No. CV-13-6042627-S.
" In analyzing those factors, the court is aware . . . 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, 136 A. 102 (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, 183 A.2d 848 (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.Supp. 335, 420 A.2d 117 (1980, Aspell, J)." Lovely v. Tremblay, supra, Superior Court, Docket No. FA-04-4102001-S.
Where a court has found that a defendant's usual place of abode is a temporary residence, however, the defendant was either currently residing at the location at the time of service of process, resided at the location on a periodic basis, or retained an ownership interest in the residence. See Jakubowski v. Wilcox, Superior Court, judicial district of New London, Docket No. 115840 (December 7, 1998, Mihalakos, J.) (23 Conn. L. Rptr. 435) (Connecticut vacation cottage owned by defendant was her usual place of abode despite the fact that she resided in New York and did not indicate that she ever used the summer cottage), Shawmut Bank Connecticut, N.A. v. Cook, supra, Superior Court, Docket No. CV-94-73915-S, (defendant's secondary residence in Connecticut was his usual place of abode despite the fact that he only periodically visited the Connecticut residence and resided the remainder of the time in Hawaii), Plonski v. Halloran, supra, 36 Conn.Supp. 335 (hotel was defendant's usual place of abode while he was temporarily staying at the hotel on a business trip). Further, where a party has failed to provide any evidence that the location of service of process was not their usual place of abode, the court has declined to find insufficient service of process. See Lovely v. Tremblay, supra, Superior Court, Docket No. FA-04-4102001-S.
In the present case, the marshal left a copy of the summons and complaint at the summer cottage owned by the defendant's daughter, the South Shore Road property. The defendant did not have an ownership interest in the property. Prior to July 27, 2015, when the defendant was in Connecticut he resided at his own property, the Morgan Lane property. For the duration of his stay at the South Shore Road property, the defendant was a guest of his daughter. When the defendant left the South Shore Road property on the morning of August 5, 2015, he returned to his Florida residence and no evidence was presented that he had any intention of returning to the South Shore Road property. At the time that the marshal left the summons and complaint at the South Shore Road property, on August 5, 2015, the defendant had already vacated the property. The defendant received actual notice of the summons and complaint from his daughters.
The fact that the defendant received actual notice of the complaint is to be given great weight in determining whether the South Shore Road property was his usual place of abode for purposes of service of process. It is ultimately, however, but one factor among many to be considered. At the time that service of process was attempted, the defendant did not have any of the ties with the South Shore Road property that courts have found in the cases where they have concluded that a location was the usual place of abode of a party. The defendant had no ownership interest in the property. He did not reside at the property on a periodic basis. He was not residing at the property at the time that service was attempted. He did not list the South Shore Road address as his official address in any forum. While evidence was submitted to the court that the defendant removed some of his personal possessions from the Morgan Lane property and brought them to the South Shore Road property, there was no evidence that he continued to store his possessions there after returning to Florida. The plaintiff did not present any evidence that the defendant intended to reside at the South Shore Road property at any time in the future.
Taken as a whole, all of the factors listed outweigh the fact that the defendant received actual notice of the summons and complaint. Therefore, the court finds that the South Shore Road property was not the defendant's usual place of abode at the time that the marshal left the summons and complaint at that address. The court further finds that, pursuant to General Statutes § 52-57(a), service of process was insufficient because there was no in-hand service on the defendant and the summons and complaint were left at an address that was not the defendant's usual place of abode.
IV
After considering the parties' testimony and after having reviewed the parties' legal submissions and the relevant facts and case law, the court hereby dismisses the plaintiff's action. The plaintiff failed to properly serve the defendant, and the trial court, therefore, lacks personal jurisdiction over the defendant in this matter.
So ordered.