Opinion
No. FA 04-4000367 S
May 2, 2005
MEMORANDUM OF DECISION ON MOTION TO DISMISS
In this action for dissolution of marriage, the defendant has filed a motion to dismiss for lack of personal jurisdiction.
FACTS
In the present case, the plaintiff, Hina Kidwai, and the defendant, Wajid Syed, were married on March 4, 1999 in Karachi, Pakistan. On July 9, 2004, the plaintiff filed a summons and complaint with the court seeking a no-fault divorce and alimony. There are no minor children of the parties and none were born to the plaintiff during the marriage.
On a motion by the plaintiff pursuant to Practice Book § 25-28, the court entered an order of notice dated July 1, 2004, requiring the plaintiff to give notice of the pending action to the defendant by mailing a true and attested copy of the summons, complaint, notice of automatic orders, and the court's order of notice by registered or certified mail, return receipt, to the defendant at his residence in Texas. The defendant conceded that he received notice of the action in the manner provided by the order. He also indicated that on February 10, 2005, he filed an appearance through counsel.
Section 25-28, titled "Order of Notice" provides in relevant part: "(a) On a complaint for dissolution of marriage . . . when the adverse party resides out of or is absent from the state or the whereabouts of the adverse party are unknown to the plaintiff . . . any judge or clerk of the court may make such order of notice as he or she deems reasonable."
On February 22, 2005, the defendant filed a motion to dismiss this action for lack of personal jurisdiction pursuant to Practice Book § 25-13(a)(2), together with a memorandum in support and affidavit. The plaintiff timely filed a memorandum of law in opposition to the motion to dismiss.
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.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "A motion to dismiss is the proper method of raising the want of personal or subject matter jurisdiction in a family matter." Vadenais v. Vadenais, Superior Court, judicial district of Norwich, Docket No. FA 03 0127100 (June 10, 2003, Quinn, J.) ( 34 Conn. L. Rptr. 757), citing LaBow v. LaBow, 171 Conn. 433, 436-37, 370 A.2d 990 (1976); see Practice Book § 25-13(a)(2).
The marital res is with both the plaintiff and the defendant at all times; each party to a marriage brings the res with him or her to the state in which he or she resides. See McConnell v. McConnell, Superior Court, judicial district of Hartford, Docket No. FA 99 0722859 (January 10, 2000, Devine, J.). It is reasonable for a defendant to expect to be haled into Connecticut solely to dissolve a marriage due to the plaintiff's continued residency in this state. See id.; Litvaitis v. Litvaitis, 162 Conn. 540, 545, 295 A.2d 519(1972). In his motion to dismiss, the defendant concedes that, in accordance with General Statutes § 46b-44(c), this court has jurisdiction to enter a valid dissolution of marriage order without having personal jurisdiction over him, as the plaintiff resided in Connecticut for at least one year prior to the filing of the action. Therefore, the marital res may be terminated in Connecticut. At the same time, he argues that with respect to an alimony order, this court is without jurisdiction since he was not served in Connecticut and lacks contacts or connections with this state.
General Statutes § 46b-44(c) provides: "A decree dissolving a marriage or granting a legal separation may be entered if: (1) One of the parties to the marriage has been a resident of this state for at least the twelve months next preceding the date of the filing of the complaint or next preceding the date of the decree; or (2) one of the parties was domiciled in this state at the time of the marriage and returned to this state with the intention of permanently remaining before the filing of the complaint; or (3) the cause for the dissolution of the marriage arose after either party moved into this state."
The plaintiff asserts that, pursuant to Practice Book § 10-32, the defendant waived his right to contest jurisdiction in that he did not file a timely motion to dismiss after he, by his conduct, entered a general appearance in the fall of 2004. Specifically, the plaintiff contends that counsel for the defendant appeared on his behalf at a case management conference on November 1, 2004, met with or spoke to the plaintiff on November 2, 2004 in an attempt to resolve her claims, and met with the caseflow coordinator on November 4, 2004.
Practice Book § 10-32 provides: "Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 and within the time provided by Section 10-30." Section 10-30 provides, 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 . . ."
"An order to pay money as alimony is a judgment in personam." (Internal quotation marks omitted.) Hansen-Boyer v. Boyer, Superior Court, judicial district of New London, Docket No. FA 00 0119728 (May 17, 2001, Kenefick, J.). A 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." Commissioner of Environmental Protection v. Connecticut Bldg. Wrecking Co., 227 Conn. 175, 195-96, 629 A.2d 1116 (1993).
"A person may waive objection to an erroneous exercise of personal jurisdiction if that party appears in the case, actively prosecutes the action or contests the issues . . . The entry of an appearance need not necessarily be made by filing a formal appearance form. The conduct of a party may operate as a general appearance." (Citation omitted; internal quotation marks omitted.) Rocque v. Biafore, Superior Court, judicial district of Hartford, Docket No. CV 00 0800791 (April 21, 2003, Shapiro, J.); Beardsley v. Beardsley, 144 Conn. 725, 730, 137 A.2d 752 (1957). "It is generally held that if a party does any act that recognizes the case as pending in court and deals with the merits of the case he subjects himself to the court's jurisdiction . . . A general appearance may be implied when the defendant takes a procedural step, other than one contesting jurisdiction only, which will be beneficial to the defendant or detrimental to the plaintiff." (Citation omitted.) Iffland Lumber Co. v. Tucker, 33 Conn.Sup. 692, 695-96, 368 A.2d 606 (1976). See also Rommell v. Walsh, 127 Conn. 16, 18, 15 A.2d 6 (1940) (stating that the rules of practice [see Redbook, p. 26, XXII] concerning appearances is one of convenience and does not preclude recognition by the court of the authority of an attorney who has not formally entered in accordance with its terms).
The defendant alleges in this case that he filed an appearance through counsel on February 10, 2005. In so doing, his motion to dismiss filed February 22, 2005 would have been considered timely. Nonetheless, by appearing through counsel in November 2004 and seeking to resolve in his favor the plaintiff's claims concerning both marital dissolution and payment of alimony, and then not filing a motion to dismiss within the applicable thirty-day period as required by Practice Book § 10-30, the defendant effectively assented to the jurisdiction of the court.
CONCLUSION
Pursuant to General Statutes § 46b-44(c), this court has jurisdiction to enter an order dissolving the parties' marriage. As to the payment of alimony, which necessitates personal jurisdiction over the defendant, this court finds that after the defendant entered an appearance in November 2004, he did not timely file a motion to dismiss and his claim was therefore waived. For the foregoing reasons, the defendant's motion to dismiss is denied.
Prestley, J.