Opinion
No. FA 02-0633510S
April 29, 2003
MEMORANDUM OF DECISION ON MOTION TO OPEN
The Defendant, Ronald Scarlett, has moved to Open the Judgment concerning the finding of a past due support obligation in the total amount of $22,490 (hereinafter referenced as the "arrearage"). The Defendant did not appear in the underlying paternity proceedings that resulted in the entry of a finding of paternity, an entry of a current weekly child support obligation in the amount of $130, and a finding of past due support for a period in excess of three years prior to the entry of the action. The Orders and Judgment entered upon his default for his failure to appear.
Background
The State of Connecticut, through the Department of Social Services (hereinafter referred to as "the State"), commenced a Paternity Petition, dated February 26, 2002, pursuant to Connecticut General Laws § 46b-162. In this petition, the State sought, inter alia to establish the paternity of the minor child, Kevonta Scarlett, date of birth January 7, 1996. The State also sought to establish financial and medical orders for the child's support.
The Paternity Petition was served on the Defendant by leaving the verified Petition at his usual place of abode, identified in the return of service as, " 214 Say Brooke Street, Hartford". The marshal attesting to the service, remarked on his return "[w]omen who live with him verified he lives there." Return of Service, dated July 10, 2002. The Petition was filed with the Clerk, Hartford Superior Court on July 24, 2002.
On September 17, 2002, the Petitioner-Mother appeared and executed a military affidavit attesting to the fact that the Defendant was not in the military. See Military Affidavit, dated September 17, 2002. The State offered a "Postal Inquiry Locate", marked as State's Exhibit "A", indicating that mail is delivered to Alti Scarlett, at 214 Saybrook Street, Hartford. Upon this evidence, service on the Defendant was found and a Judgment of paternity entered pursuant to Conn. Gen. Stat. § 46b-160. The matter was continued for the State to obtain evidence concerning the Defendant's labor history and/or wage information upon which to base financial support orders pursuant to Conn. Gen. Stat. § 46b-171. No notice of the continuance date was sent to the Defendant.
On November 5, 2002, the State offered into evidence the results of an inquiry made to the Commissioner of Revenue Services See State's Exhibit "A." The Inquiry Return indicates that the Defendant reported a federal adjusted gross income of $38,916 for the year 2001. The Petitioner Mother filed a Financial Affidavit, reporting a weekly gross income of $300, net $250. A child support guidelines worksheet was prepared by the State and submitted to the Court. Based upon the financial information offered on November 5, 2002, the Defendant was ordered to pay $130 per week in current child support, in accordance with the presumptive guidelines calculation. Pursuant to the request of the Petitioner Mother, an arrearage of $22,490 was found for the three-year period prior to the service of the Paternity Petition and through the date of the final hearing (July 10, 1999-November 5, 2002, 173 weeks x $130). See Guidelines Worksheet, filed November 5, 2002. There is no evidence that a notice of the default Judgment was sent to the Defendant.
On November 7, 2002, the Defendant filed a Motion to Open Judgment asserting that he "was'nt [sic] in Court. Court papers were sent to the wrong address. Un arear [sic] of court proceeding." Motion to Open Judgment, #103. An evidentiary hearing on the Motion to Open was conducted on December 19, 2002. The Defendant does not contest the Judgment of paternity. He does not contest the weekly order for current support of $130. His only claim is that the arrearage finding fails to credit him for past financial support he allegedly provided for the benefit of the minor child during the period claimed.
Motion to Open: Abode Service
Connecticut General Statute § 46b-160 provides that a default judgment of paternity shall enter if a putative father fails to appear after finding proper service on the defendant. In the pending action, service was found based upon the presumption of the valid service pursuant to the marshal's return. A return indicating that service has been made, by leaving an attested copy of the summons and motion at the defendant's abode, is prima facie evidence of the facts stated in the return. Jenkins v. Bishop Apartments, 144 Conn. 389, 390 (1957); Genug's Inc. v. Rice, 33 Conn. Sup. 554, 558 (1976). "Abode" is the place where the defendant would most likely have knowledge of service of process and is generally recognized as the place where the defendant is living at the time of service. Grayson v. Wofsey, Rosen Kweskin Kurianski, 40 Conn. Sup. 1, 3 (1984, Jacobson, J.).
Service of process in a civil action may be made at the place of a defendant's abode. Conn. Gen. Stat. § 52-57. Whether a particular place is the usual place of abode of a defendant is a question of fact. The usual place of abode is 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. It is presumed that the matters stated in the return are true. Standard Tarlow v. Jowdy, 190 Conn. 48, 53-54 (1983). The defendant bears the burden of proof when disputing the presumptive valid abode service. Kutson Mortgage Corp. v. Bernier, 67 Conn. App. 768, 77 (2002). In Clegg v. Bishop, 105 Conn. 564, 570 (1927), the Connecticut Supreme Court recognized that an individual might have two or more residences, each maybe a usual place of abode. Id. Service of process is valid if made at either of the places of abode. Id.
Connecticut General Statute § 52-57 (a), authorizing abode service, should be construed liberally in the cases where the defendant received actual notice. Id. at 3. The uncorroborated, self-serving statement that the Paternity Petition was served at the wrong address, alone is insufficient to overcome the overwhelming and credible testimony concerning the abode service. Uyen Phan v. Delgado, 41 Conn. Sup. at 373; Kelley v. McGrail, 2002 Conn. Sup. 1297 (2002), 31 Conn.L.Rptr. 326 (a party's uncorroborated, self-serving affidavit is not sufficient to overcome the presumption of truth attached to an officer's return).
The Defendant has offered no evidence that the address where the marshal left the Paternity Petition was not his abode. The Defendant has filed this Motion to Open using a post office box number as his address. He testified that he owns several rental properties, including the property where service was made. He further testified that he "spends time" at the apartments he rents to manage the properties and also because has fathered children by mother (s) living in his rental properties, including this Petitioner-Mother. Lastly, the Military Affidavit asserts that the Defendant had actual notice of the Court proceedings as a result of his phone conversations, on September 16, 2002, with the Petitioner Mother.
It is credible that the Defendant has more than one place of abode. Sufficient evidence supports a finding of proper service upon the Defendant. Therefore, the entry of Judgment upon his default for his failure to appear was warranted.
The "postal" inquiry attempts to corroborate the abode service. No weight is given to this Exhibit in finding proper abode service because it asserts that an " Alti" Scarlett received mail at the address. No evidence was provided that " Alti" Scarlett is the same person as this Defendant, Ronald Alti Scarlett.
Motion to Open: Timeliness
Although it is determined that proper abode service was made, it is credible that the Defendant was not aware of the proceedings. Pantlin Chananie Development Corp. v. Hartford Cement Building Supply Co., 196 Conn. 233, 237 (1985) (when ruling on a motion to open a default judgment, it is for the court to weigh evidence and determine the credibility of witnesses).
The motion to open is governed by Connecticut General Statute § 52-212 (a) and Practice Book § 17-43. Both Statute and Practice Book contain a four-month period of time during which judgment may be set aside, from the date which notice of the judgment was sent.
Practice Book § 17-43 provides, in relevant part:
Unless otherwise provided by law . . . 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 . . .
P.B. § 17-43 (emphasis added).
Practice Book § 17-22 provides that notice of judgment after default for failure to appear shall be mailed within 10 days to the party against whom it was directed. Specifically, Practice Book § 17-22 provides, in relevant part:
A notice provision exists with regard to support orders entered pursuant to Gen. Stat. § 46b-215 (j). This Statute provides in pertinent part, that "the assistant clerk . . . shall promptly notify the obligee and the obligor or the attorney for the obligee and obligor of any support order entered by a family support magistrate . . . Such notice shall set forth in full the terms of the support order entered by the family support magistrate."
A notice of every . . . judgment for failure to enter an appearance, which includes the terms of the judgment, shall be mailed within ten days of the entry of judgment by counsel of the prevailing party to the party against whom it is directed and a copy of such notice shall be sent to the clerk's office. Proof of service shall be in accordance with Section 10-14.
P.B. § 17-22 (emphasis added).
Gen. Stat. § 52-212 (a) provides, in relevant part, that
[a]ny judgment rendered or decree passed upon a default or non-suit in the superior court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket . . ., upon the . . . showing of reasonable cause, or that a good cause of action or defense in whole or part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.
It is axiomatic that the party who is to exercise the right to open a judgment be given the opportunity to know that there is a judgment to open. Habura v. Kochanowicz, 40 Conn. App. 590, 593 (1996). For the purpose of opening a default judgment pursuant to Gen. Stat. § 52-212, a delay in notifying the defendant of the judgment "merely exten[ds] the time in which the defendant could move to set aside the judgment." (Internal quotation marks omitted.) Handy v. Miniwax Co. 46 Conn. App. 54, 57, cert. denied, 243 Conn. 921 (1997); Fountaine v. Thomas, 51 Conn. App. 77, 80 n. 3 (1998) (trial court properly entertained a motion to open where prevailing party's counsel failed to comply with Practice Book § 17-22 notice provisions); DiSomone v. Vitello, 6 Conn. App. 390, 393 (1986) (lack of demonstrated compliance with Practice Book § 17-22 notice requirements serves to extend the four-month time period within which to open a judgment).
The Connecticut Superior Courts have consistently held that the four-month time limitation to open a judgment begins to run from the date notice of the judgment was sent, pursuant to Practice Book § 17-22. See Tremblay v. Costa, 2001 Ct. Sup. 7100, 7101-2 (May 29, 2002, Foley, J.); TeleSpectrum World v. Mesa Partners, 2000 Ct. Sup. 809, 812 (January 18, 2000, Karazin, J.) (the lack of notice suspends the running of the four-month period until actual notice is received); Aliff v. Fromm, 7 C.S.S.R. 625 (May 6, 1992, Austin, J.) ( 6 Conn.L.Rptr. 412) ("When a party fails to receive the official notice of a judgment of default or non-suit, the four-month time period commences upon the receipt of actual notice"); Mulligan v. Smoron, 62 Conn. App. 367, 369-71 (2001). See also, Perkin-Elmer Corp. v. Haworth, Inc, 2001 Ct. Sup. 16234, 16236 (December 6, 2001, Lewis, J.) (it is the sending of notice that controls); Crutchfield v. Bennerman, 2002 Ct. Sup. 3050, 3051-2 (March 13, 2002, Moran, J.); Vanderkloot v. Qualified Domestic Trust, 2002 Ct. Sup. 2273, 2278-9 (Feb. 26, 2002, Martin, J.); Keating v. Jordan, 1991 Ct. Sup. 8196, 8198 (September 10, 1991, Langenbach, J.), 4 Conn.L.Rptr. 483; Miglore v. Merritt Medical Center, 1993 Ct. Sup, 5384, 5386 (June 1, 1993, Fuller, J.) (where there is a delay in notifying the defendant, this extends the four-month time limitation in which the defendant can move to set aside the judgment); Shoreline Bank Trust Co v. Davidson, 1995 Ct. Sup. 3965, 3966 (April 5, 1995, Hodgson, J.) and Trasacco v. Serra, 1996 Ct. Sup. 767, 768 (January 23, 1996, Thompson, J.).
Further, the Connecticut Appellate Court has held that, if a party has not received notice of a judgment, the four-month time limitation does not apply. Morelli v. Manpower Inc., 34 Conn. App. 419 (1994). Whether a party has been given notice is a question of fact. Batory v. Bbajor, 22 Conn. App. 4, 9 (1990) cert. denied, 215 Conn. 812 (1990); Noethe v. Noethe, 18 Conn. App. at 596. (the statutory rule that judgment may be opened under § 52-212 within four months of the date of judgment presumes that the defendant against whom such a judgment was rendered had timely notice of the entry of the judgment).
Lastly, Conn. Gen. Stat. § 46b-215 (a)(7)(C) provides:
Any finding as to support due for periods of time prior to the action which is made without information concerning the past ability to pay shall be entered subject to adjustment when such information becomes available to the court. Such adjustment may be made upon motion of any party within four months of the date upon which the obligor receives notification of (1) the amount of such finding of support, and (2) the right within four months of receipt of such notification to present evidence as to past ability to pay support for such periods of time prior to the action.
Conn. Gen. Stat. § 46b-215 (a)(7)(C) (emphasis added).
In this case, there is no evidence that notice of the Judgment was sent to the Defendant. Therefore, the Defendant's Motion to Open Judgment, seeking to adjust the finding of arrearage, is considered timely.
Motion to Open: Merits
In order to set aside a judgment passed upon default, a party seeking to set aside the judgment must satisfy a two-prong test. Pantlin Chananie Development Corp. v. Hartford Cement Building Supply Co., 196 Conn. 233, 240 (1985). The person seeking to set aside the judgment must show that 1.) a good defense existed at the time judgment was rendered and 2.) the party seeking to set aside the judgment was prevented from appearing because of mistake, accident or other reasonable cause. Id.
In the present case, the Defendant claims that he did not have notice of the underlying paternity petition. Although it is determined that proper abode service was made, it is credible that the Defendant was not aware of the proceedings. Pantlin Chananie Development Corp. v. Hartford Cement Building Supply Co., 196 Conn. 233, 237 (1985) (when ruling on a motion to open a default judgment, it is for the court to weigh evidence and determine the credibility of witnesses). Although the Petitioner Mother offered evidence that the Defendant had actual knowledge of the paternity proceedings to be held on September 17, 2002, no evidence was presented that the Defendant had notice of the entry of financial orders on November 5, 2002. The Paternity Petition does not provide any notice to the Defendant that he may be liable for the financial support of the child for a period in excess of three years prior to the commencement of the action See Paternity Petition, paragraph 6 seeking "to establish paternity, financial and medical support obligation" of the Defendant. It is this finding, alone, that was based upon the Petitioner Mother's verbal claim made in Court, on November 5, 2002, that the Defendant contests. The Defendant has presented sufficient evidence that he was prevented from appearing because of mistake, accident and other reasonable cause.
Burden of Proof
As recited above, the Petitioner Mother has claimed amounts due her for child support prior to the commencement of the action. "Where it is inherent in the very claim of the plaintiff that the amount [s]he is seeks to recover is something which is presently owing . . . the plaintiff has voluntarily assumed the affirmative on the issue." Apuzzo v. Hoer, 125 Conn. 196, 204 (1939); Aiutana Bankgenossenschaft v. Parren, 21 Conn. App. 5, 6 (1957) ("where the allegations of the complaint are such as really put in issue on a general denial the fact of nonpayment as an element of the plaintiff's case . . . the plaintiff has voluntarily assumed the affirmative upon the issue"). Accord, Riccio v. Abate, 176 Conn. 418 (1979). In such instances, the burden rests upon the plaintiff to prove his case by a fair preponderance of the evidence. Apuzzo v. Hoer, 125 Conn. at 204; Peterson v. Coy, 1997 Ct. Sup. 2275 (April 8, 1997, Levin, J.); Hancock Estabrook v. Brown, 1995 Ct. Sup. 440-F (January 23, 1995, Levin, J.).
Practice Book § 10-50 requires that the defense of payment be specifically pled. See Haddad v. Francis, 40 Conn. Sup. 567, 576 (1986). The defendant has the burden of proving the special defense of payment Id.; Selvaggi v. Miron, 60 Conn. App. 600 (2000). Although it is incumbent upon a defendant to plead payment as a special defense, it is the plaintiff who has placed the issue of nonpayment at issue as an element of her claim. Therefore, she must satisfy her burden of proof on the affirmative defense. Riccio v. Abate, 176 Conn. 415, 417 (1979); See also Dubose v. Carabetta, 161 Conn. 254, 262 (1971) (in a contract action, the burden of proof remains on a plaintiff to prove performance concerning the matters recited in the special defense).
In allocating the burden of proof concerning the issue of nonpayment, Judge Levin, in Hancock v. Estabrook, 1994 Ct. Sup. 10310 (October 5, 1994), cited the following statement:
the allocation of proof may be distilled to a question of policy and fairness based on experience in different situations . . . it . . . rests upon the party who must establish the affirmative of the proposition, to whose case the fact in question is essential, who has the burden of pleading fact, who has readier access to knowledge about the fact, or whose contention departs from what would be expected in light of everyday experience.
Id. (citations omitted).
The Defendant claims that he provided financial support for the benefit of the minor child by "waiving" the collection of rent from the Petitioner Mother. Specifically, the Defendant claims to have an ownership interest in the Petitioner Mother's rental apartment. Pursuant to a lease agreement, the Housing Authority for the City of Hartford was responsible to pay a portion of the Mother's monthly rent obligation. The Petitioner Mother was obligated to pay an additional $203 per month. See, Lease Agreement, marked on December 19, 2002, as "Plaintiff's Exhibit 1."
The Defendant claims he did not collect the $203 from the Petitioner Mother, for the period prior to May 2001, in lieu of paying her direct child support. The Lease Agreement does not identify the Defendant as the landlord. The Defendant testified that he had an ownership interest in the property and that the rental income was included in his Adjusted Gross income upon which the child support obligation is based. The Defendant filed a Summary Process action against the Petitioner Mother in April 2001, alleging her failure to pay rent. See, documents collectively marked on December 19, 2002, as Defendant's "Exhibit 1." The Petitioner Mother does not contest that as a result of the summary process action she vacated the apartment. She does not contest that she had an obligation to pay the Defendant $203 per month, and that she did not pay him the rent. She claims that any credit asserted by the Defendant should be offset by an unpaid liability owed to the gas company in her name. See, collection notice, marked on December 19, 2002 as "Plaintiff's Exhibit 1." The Petitioner Mother is not entitled to any offset for this alleged liability in this action. There is no evidence that she paid the bill. Further, she had an opportunity to fully and fairly litigate this claim in the summary process action as a defense to her eviction and/or breach of contract.
The Defendant Father is entitled to a credit for his relinquishment of $203 per month in rental income he was contractually entitled to collect. In Goold v. Goold, the Connecticut Appellate Court found that ". . . situations may arise in which equitable considerations would permit a parent to credit, against past due support, payments, voluntary expenditures made on behalf of the child . . . (internal citations omitted). The circumstances of each individual case are considered in determining whether credit can be allowed . . . In all such cases, however, courts have recognized that the decision to allow or disallow credit lies within the sound discretion of the trial court." Id. 11 Conn. App. at 272-73. The Goold Court provided the following guidance, "there is no general rule as to when circumstances require the allowance of such credit . . . such circumstances may include when a mother in some manner, consented to accept the father's direct support of the child as an alternative method of paying child support." Id. at 275; See also Pearson v. Geyer, FA 02 06633125 (Baird, F.S.M. October 11, 2002) (finding support in well established Connecticut case law allowing credit for in kind contributions against an accumulated child support obligation).
Goold v. Goold, 11 Conn. App. 268, 272-73, cert. denied, 204 Conn. 810 (1987).
In the pending action, the Mother testified that she did not pay the Defendant Father the $203 monthly rental obligation. Although the parties have a statutory right to enter into an agreement that affects the support of their children, the court has the power to reject such an agreement if it is in the best interests of the child to do so. Miller v Miller, Superior Court, J.D of Hartford, Docket No. FA 94-0532966 (January 22, 2002, Dyer, J.). The arrangement not to pay $203 monthly, alone, did not adequately provide for the financial needs of the minor child. Therefore, the arrangement whereby the Defendant Father forgave the $203 monthly rental payment, alone, was not in the best interests of the minor child.
The Father's testimony that he relied upon the parties' arrangement is credible. When the parties' relationship broke down, he commenced summary process proceeding because the Mother did not pay the rent. The Father's testimony that he has contributed to the support of the minor child is credible, and is supported by the evidence that he forgave 92 weeks of rental income (July 24, 1999 through May 1, 2001), at $47.20 per week ($203/4.3), for a total credit of $4,390. The Mother's claim that despite her knowledge and consent of the Father's provision of this financial support he should not be given credit, is not equitable. The Father relied upon the parties' arrangement and accepted the Mother's non-payment of rent, for a period of time. Although this agreement is not tantamount to a waiver of child support, the Father is entitled to a credit for the financial support he provided directly on behalf of the child.
The Defendant provided sufficient and credible evidence of an additional $1,000 in direct payments made to the Petitioner Mother to be credited against his support obligation See copies of checks, collectively marked on December 19, 2002, as "Plaintiff's Exhibit 2."
As the trier of fact, this Court has considered the credibility of witnesses and the weight to be given to their testimony. The other's claim that the Defendant has provided no financial support for the benefit of this minor child is not credible. She has not satisfied her burden of proof that the amount arrearage previously found, upon the Defendant's default, was unpaid by the Defendant Father. See Kwasniewski v. Kwasniewski, 1994 Ct. Sup. 6081, 6085 (June 9, 1994, Teller, J.) (wife failed to provide any ledger, calculation or other documentation in support of her testimony warranting a finding that she had not met her burden of proof as to the amount or existence of any arrearage).
Griffin v. Nationwide Moving Storage Co., 187 Conn. 405, 422 (1982); Riccio v. Abate, 176 Conn. 415, 418 (1979).
Notwithstanding the Plaintiff mother's failure to substantiate her claim, mere disbelief of a party's testimony does not permit or warrant the acceptance of the opposite testimony or proposition. Therefore, the Defendant father's testimony and documentary evidence have been considered. He has satisfied his burden of proof demonstrating payment of his child support obligation in the total amount of $5,390, as of November 5, 2002.
Burke v. Fanches, 151 Conn. 640 643-44 (1964); State v. Mayell, 163 Conn. 419, 426-27 (1972).
Findings:
1. Paternity of the minor child, Kevonta Scarlett, d.o.b. 1/7/96, has been established. The Judgment of paternity is not contested.
2. The Defendant's weekly child support obligation established at $130 per week is consistent with the child support guidelines presumptive order. The Order to pay $130 is not contested by the Defendant Father and is a fair and equitable order.
3. The Defendant's financial obligation for the past support of the minor child for the period of July 24, 1999 — November 5, 2002 is $22,230 (171 weeks x $130). The Defendant is entitled to a total credit of $5,390. ($4,390 rental credit + $1,000 in direct payments). The total past due support payable to the Petitioner Mother is $16,840. The Defendant shall pay $26 per week against this arrearage.
2. The Defendant's weekly current child support obligation and weekly arrearage payment are to be secured by an immediate wage execution.
3. The Defendant is responsible for 56% of the unreimbursed medical and dental expenses incurred on behalf of the minor child, after the first $100 per year.
4. The Defendant is to provide medical and dental insurance for the benefit of the minor child if it is available to him through his employment or other group policy, at a reasonable cost.
Linda T. Wihbey dated: April 17, 2002 Family Support Magistrate