Opinion
No. FA03-0182184S
April 22, 2004
MEMORANDUM OF DECISION
FACTS
Before the court is the defendant's motion to dismiss based on lack of subject matter jurisdiction and personal jurisdiction. The following facts are undisputed. On September 1, 1999, the parties were divorced in Vermont by an order of the Bennington Family Court. The judgment was based on a stipulation agreement entered into by both parties. The final order of divorce stated that the plaintiff, Amanda Ruggeri, was present and represented by counsel, and the defendant, Dennis Ruggeri, appeared pro se. The final page of the order was signed by the defendant and the plaintiff's attorney. The final order provided that the defendant pay combined child support and spousal maintenance in the amount of $6000 each month to the plaintiff. On December 17, 2003, the plaintiff filed a foreign matrimonial judgment in the Superior Court, judicial district of Waterbury, pursuant to General Statutes § 46b-71. The plaintiff informed the defendant of such filing by mailing a copy of the foreign judgment and affidavit in support by certified mail to the defendant's address at 593 Hammock Drive, Fairport, New York. The plaintiff received a return receipt with the defendant's signature and a delivery date marked December 23, 2003.
Both parties stipulated that the case could be decided on the briefs and no further articulation of facts was necessary.
A certified copy of the final decree of divorce was filed in the Superior Court, judicial district of December 17, 2003.
General Statutes § 46b-71 provides:
(a) Any party to an action in which a foreign matrimonial judgment has been rendered, shall file, with a certified copy of the foreign matrimonial judgment, in the court in this state in which enforcement of such judgment is sought, a certification that such judgment is final, has not been modified, altered, amended, set aside or vacated and that the enforcement of such judgment has not been stayed or suspended, and such certificate shall set forth the full name and last-known address of the other party to such judgment and the name and address of the court in the foreign state which rendered such judgment. (b) Such foreign matrimonial judgment shall become a judgment of the court of this state where it is filed and shall be enforced and otherwise treated in the same manner as a judgment of a court in this state; provided such foreign matrimonial judgment does not contravene the public policy of the state of Connecticut. A foreign matrimonial judgment so filed shall have the same effect and may be enforced or satisfied in the same manner as any like judgment of a court of this state and is subject to the same procedures for modifying, altering, amending, vacating, setting aside, staying or suspending said judgment as a judgment of a court of this state; provided, in modifying, altering, amending, setting aside, vacating, staying or suspending any such foreign matrimonial judgment in this state the substantive law of the foreign jurisdiction shall be controlling.
On January 9, 2004, the plaintiff filed an application for order to show cause and a motion for contempt post-judgment. On the same day, the court, Resha, J., ordered that the defendant appear on February 2, 2004, to show cause why the plaintiff's motion for contempt should not be granted. On January 9, 2004, the defendant was served in-hand at 625 Wolcott Street, Waterbury, Connecticut. On February 2, 2004, the defendant appeared in court and requested a continuance. The matter was continued to February 17, 2004. On February 17, 2004, the defendant filed a motion to dismiss and memorandum in support. The defendant moved to dismiss the plaintiff's motion for contempt on two grounds: (1) the court lacks subject matter jurisdiction to hear this cause of action, pursuant to General Statutes § 46b-70; and (2) the court does not have personal jurisdiction over him. The plaintiff timely filed an objection to the motion to dismiss.
The plaintiff also filed an ex parte motion to freeze the defendant's assets post-judgment. The court, Resha, J., denied this motion.
The defendant also filed a supplemental memorandum of law on February 24, 2004.
DISCUSSION
"A motion to dismiss tests . . . whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "The grounds which may be asserted [in a motion to dismiss] are . . . lack of jurisdiction over the subject matter . . . [and] lack of jurisdiction over the person . . ." (Citation omitted.) Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). See also Practice Book § 10-31. "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." Ferreira v. Pringle, 255 Conn. 330, 346-47, 66 A.2d 400 (2001).
In his memorandum in support of the motion to dismiss, the defendant first argues that the court does not have subject matter jurisdiction. Specifically, the defendant contends that the validity of a foreign matrimonial judgment, pursuant to § 46b-71, requires that both parties entered an appearance in the matter sought to be enforced. The defendant argues that the plaintiff's failure to allege this fact in her affidavit, which was submitted with the foreign matrimonial judgment, renders it invalid. Furthermore, the defendant argues that he did not physically appear at the dissolution hearing in Vermont to contest the divorce. The plaintiff counters that the requirements of § 46b-71 were satisfied. The plaintiff argues that the defendant mistakenly interprets the word appearance in § 46b-70 to mean an overt physical act whereby a party submits to the court's jurisdiction, rather than, the filing of an appearance.
As to the defendant's first argument, § 46b-70 defines a foreign matrimonial judgment as "any judgment, decree or order of a court of any state in the United States in an action for [divorce] in which by the parties have entered an appearance." "The statute is an appropriate vehicle to enforce a judgment of contempt for failure to comply with a matrimonial judgment . . . The requirement of the entry of an appearance by both parties is a threshold requirement for enforcement pursuant to the statute." (Citation omitted; internal quotation marks omitted.) Rule v. Rule, 6 Conn. App. 541, 544, 506 A.2d 1061, cert. denied, 201 Conn. 801, 513 A.2d 697 (1986). Thus, "[a] trial court has no competency to exercise power over an out-of-state matrimonial judgment that does not satisfy the requirements of § 46b-70." Mirabal v. Mirabal, 30 Conn. App. 821, 826, 622 A.2d 1037 (1993).
In this case, the requirement of § 46b-70, that both parties entered an appearance in the original divorce decree, was satisfied. Under Vermont law, a party is said to have entered an appearance "by signing a pleading or motion, by appearing in open court if no pleading or motion is required, or by filing a signed notice with the clerk . . ." Vermont Rules for Family Proceedings, Rule 15(a)(4). Furthermore, "[a]n appearance may be expressly made by formal written or oral declaration, or record entry, or it may be implied [from] some act done with the intention of appearing and submitting to the court's jurisdiction." 4 Am.Jur.2d, Appearance § 1 (1995). Based on the record before the court, it is uncontroverted that the defendant appeared pro se, entered into a stipulation with the plaintiff that was entered as a judgment by the Vermont court and signed the final order. It is disingenuous for the defendant now to argue that he did not enter an appearance in the Vermont proceedings, when the evidence in the record clearly indicates to the contrary. Thus, the court finds that it has subject matter jurisdiction over the foreign matrimonial judgment to consider the plaintiff's motion for contempt.
The defendant also argues that the court does not have personal jurisdiction over him. The defendant contends that he has never resided in Connecticut and has no contacts with the state, and, therefore, the minimum contacts requirements of due process under the Fourteenth Amendment are not satisfied. The plaintiff counters that the defendant's argument is misplaced, as it only applies to situations where a nonresident, nondomiciliary defendant is served outside of the forum state. The plaintiff argues that, in this case, the defendant was personally served in-hand while in Connecticut, and, therefore, this court has personal jurisdiction over him.
"The law is well established that although a judgment is now a judgment of this state, the court must have in personam jurisdiction [over the defendant] in order to enter such orders." Wieduwilt v. Wieduwilt, Superior Court, judicial district of Waterbury, Docket No. FA 99 0156678 (February 22, 2000, Doherty, J.) ( 25 Conn. L. Rptr. 559). "An order to pay money or child support is a judgment in personam, unless satisfaction is sought only from property attached within this state." LaBow v. LaBow, 171 Conn. 433, 438, 370 A.2d 990 (1976), cert. denied, 258 Conn. 943, 786 A.2d 430 (2001). "Thus, such an order requires that the court have personal jurisdiction over the defendant . . . Mere notice of an action is not sufficient to confer personal jurisdiction over a nonresident defendant." (Citations omitted.) St. Hilaire v. St. Hilaire, 41 Conn. Sup. 429, 432, 581 A.2d 752, 2 Conn. L. Rptr. 326 (1990).
The case of St. Hilaire v. St. Hilaire, supra, 41 Conn. Sup. 429, 41 Conn. Sup. 429, is instructive to the defendant's claim that the court lacks personal jurisdiction. In St. Hilaire, the defendant filed a Massachusetts divorce judgment in Connecticut pursuant to § 46b-71, and thereafter moved to modify the orders. Id., 430. The plaintiff, a resident of Massachusetts, claimed that the court lacked personal jurisdiction over him. Id., 431. The defendant argued, however, that the filing requirement of § 46b-71 acted as a long-arm statute. Id. The defendant argued that once a foreign judgment was properly registered in Connecticut, the court acquired the same jurisdiction that the foreign court rendering the decree originally enjoyed. Id. The court rejected the defendant's argument, holding that the statute "neither contains a long-arm provision to reach the plaintiff in Massachusetts nor confers a cause of action in and of itself. Personal jurisdiction must be obtained or be obtainable in Connecticut notwithstanding that registration under [§ 46b-71] requires Connecticut courts to treat the foreign divorce decree as a Connecticut decree." Id., 434. Thus, the court dismissed the defendant's motion for lack of personal jurisdiction over the nonresident plaintiff. Id., 437.
In St. Hilaire, the nonresident plaintiff was never personally served in Connecticut. In the present case, the plaintiff filed a motion for contempt and personally served this motion on the defendant while he was in Connecticut. This is distinguished from St. Hilaire, in which a party is attempting to haul a nonresident, nondomiciliary defendant into the court of another jurisdiction based on receipt of service of process outside of the forum state. Here, the defendant subjected himself to the jurisdiction of this court by his physical presence in this state. While doing so, he received in-hand service of process of this motion for contempt.
The United States Supreme Court in Burnham v. Superior Court of California, 495 U.S. 604, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990), has held that it is constitutional for a state to exercise personal jurisdiction over a nonresident, nondomiciliary defendant who is served in-hand while only temporarily present in the forum state. In this state, in-hand service of process over a nonresident party is authorized as a means of service when the party is physically present in the state. General Statutes 52-57(a) provides in relevant part that "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 . . . in this state." See also Packer v. Packer, Superior Court, judicial district of Waterbury, Docket No. FA 91 0096918 (February 28, 1991, Pellegrino, J.) ( 3 Conn. L. Rptr. 294) (court had in personam jurisdiction where a party subjected himself to the jurisdiction of this state and was personally served in-hand with the motion in Connecticut).
Moreover, the facts in the present case, much to the defendant's chagrin, do not trigger the due process analysis of minimum contacts. The United States Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945), held that due process 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 [must have] certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." (Emphasis added; internal quotation marks omitted.) The defendant's contention that minimum contacts with Connecticut is a prerequisite to the court's exercise of jurisdiction over him is a misunderstanding of the principles of due process. As noted in Burnham, "jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard of traditional notions of fair play and substantial justice." (Internal quotation marks omitted.) Burnham v. Superior Court of California, supra, 495 U.S. 619. The minimum contacts analysis is, therefore, only necessary when a nonresident, nondomiciliary defendant has not subjected himself to the jurisdiction of the forum state. Based on the evidence before the court, this is not the situation. The marshal's return indicated that the defendant was properly served in-hand in Connecticut with the motion for contempt. Thus, based on the foregoing reasons, it is submitted that the court has personal jurisdiction over the defendant.
The marshal's return stated in part that "I made due and legal service upon the within named: Dennis G. Ruggeri, by leaving with and within his hands at: 625 Wolcott Street, Waterbury, Connecticut, an Original Letter and true and attested copy, with my endorsement thereon, of the within Application For Order To Show Cause and Motion for Contempt Post-Judgment, Order To Show Cause (signed), Summons, Affidavit In Support of Filing Foreign Matrimonial Judgment, and Final Order."
CONCLUSION
The defendant's motion to dismiss is denied. The court has both subject matter jurisdiction and personal jurisdiction over the defendant to consider the plaintiff's motion for contempt.
CUTSUMPAS, J.