Opinion
File No. 56762
In this action for divorce against a nonresident defendant who was served by mail but has not appeared to defend, the plaintiff moves that alimony pendente lite be allowed and that an order issue for support of the minor children of the parties. The motion is granted insofar as it seeks alimony pendente lite, and denied with respect to the order for support. Where property of a nonresident defendant in an action for divorce is located within the territorial limits of Connecticut, its courts may acquire power to pass an order for alimony or support, which, though in personam in form, is directed against the property itself. The order thus issued is one in rem or quasi in rem. The conditions to the exercise of this power are the presence of the res within the state, its seizure at the commencement of or during the course of the proceedings and before the order is passed, and an opportunity to the defendant to be heard. There must be something in the action which makes it in effect a proceeding against the property. The writ in the instant case commanded the officer to make an attachment of the defendant's property; the petition alleges him to be the owner of real and personal estate; and the claim for relief asks alimony. Better practice requires more definite expression of intention to pursue the defendant's property, and this may be effected by the additional request in the ad damnum that the property be applied to honor all orders of alimony. It is sufficiently evident from the record that the action is one capable of supporting an order for alimony pendente lite. Since it does not appear, except from the motion for alimony pendente lite and support, that the plaintiff is seeking support for the children, support may not be considered. An order for the payment of money as alimony or support is essentially one in personam. Hence, where the defendant is a non-resident and possesses no property within the jurisdiction it is legally impossible to enter an order for alimony or support. Constructive notice is never capable of laying the basis for an order in personam, even though it be conclusively demonstrated that the nonresident defendant has actual knowledge of the pendency of the action.
MEMORANDUM FILED JUNE 17, 1939.
Harry Cooper, of Meriden, for the Plaintiff.
Lewis Somers, of Meriden, for the Defendant.
Memorandum on motion for alimony pendente lite and for support of minor children.
This action seeking a divorce was returnable on the first Tuesday of May. The defendant is a non-resident who has not appeared to defend. Service was made by registered mail in conformity with an order of notice issued by an assistant clerk of this court. The officer's return shows that, by virtue of the writ, he "made an attachment of all the right, title and interest of the defendant in and to a certain lot, tract or parcel of land lying in the Town of Meriden," a description of which then follows. Whether the defendant is the owner of the property so attached or of any interest in it is unascertainable from the record in court. The officer likewise "attached all goods, effects, money and debts due to or belonging to the defendant in the hands of the named garnishee" who "having been inquired of disclosed that he was indebted to the defendant."
The plaintiff now presents a motion that alimony be allowed pendente lite and that an order issue for the support of the minor children of the litigants. The problem confronting the court is, in the first instance, one which questions the right of this tribunal to entertain the motion at all.
An order for the payment of money as alimony or support is essentially one in personam. In those cases which quite commonly command the attention of the court where the defendant is a nonresident and no property of his is within its jurisdiction, it is legally impossible to enter an order for alimony or support. McSherry vs. McSherry, 113 Md. 395, 77 A. 653; Smith vs. Smith, 74 Vt. 20, 51 A. 1060. Constructive notice is never capable of laying the basis for an order in personam, even though it be conclusively demonstrated that the nonresident defendant has actual knowledge of the pendency of the action. Hood vs. Hood, 130 Ga. 610, 61 S.E. 471; Proctor vs. Proctor, 215 Ill. 275, 74 N.E. 145.
But where property of the nonresident is located within the territorial limits of Connecticut, this court may acquire the power to pass an order for alimony or support, which, though in personam in form, is in fact directed against the property itself. Thus the order is one in rem or quasi in rem. The only essentials to the exercise of this right are the presence of the res within the State of Connecticut, its seizure at the commencement or during the course of the proceedings and before the order is passed, and the opportunity of the owner to be heard. Where the essentials exist an order for alimony or support will be valid under the same circumstances and to the same extent as is found in judgments on a debt — that is, it will be valid not in personam, but as a charge to be satisfied out of the property seized. Pennington vs. Fourth National Bank, 243 U.S. 269, 61 L.Ed. 713.
One of the above enumerated requisites is that there must be something in the action which makes it in effect a proceeding against the property. The writ, in the case under discussion, commanded the officer to make an attachment of the defendant's property; the petition alleges him to be the owner of real and personal estate; and the claim for relief asks alimony.
I am of the opinion that better practice requires greater certainty of objective as to the petitioner's intention to pursue the defendant's property — and this might well be done by the additional request in the ad damnum that the property be applied to honor all orders of alimony — nevertheless, I think it sufficiently evident from the record that the action is one capable of supporting an order for alimony pendente lite. It should be observed, however, that nowhere does it appear that the petitioner is seeking any support for her children, save in the motion now at hand. Hence such support cannot be considered.