Opinion
FSTCV176031599S
08-30-2017
Fannie Stein v. Jennifer Allen
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#102.00)
Kenneth B. Povodator, J.
Currently before the court is a motion to dismiss filed by the self-represented defendant that raises a number of issues pertaining to legal sufficiency of the complaint but also alleges lack of proper service on the defendant.
The court agrees with the plaintiff insofar as the plaintiff characterizes the defendant's motion to dismiss as a combination of a motion to dismiss and a motion to strike. The court is in agreement that it should not exalt form over substance, and should address the two components on their merits. (Consistent with appellate decisions, e.g., Macellaio v. Newington Police Department, 145 Conn.App. 426, 431, 75 A.3d 78 (2013); Argentinis v. Fortuna, 134 Conn.App. 538, 539, 39 A.3d 1207 (2012), the court is required to allow leeway in applying rules of practice to self-represented parties, so long as it does not unduly interfere with the rights of other parties.) However, because the lack of jurisdiction would preclude any further action on the case, the legal sufficiency issues must be deferred until after the jurisdictional issue is resolved.
From a jurisdictional perspective, this case may well be unique.
As a general matter, the burden is placed on the defendant to disprove personal jurisdiction. The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of the truth of the matters stated in the officer's return. When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction . . . When a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction.(Internal quotation marks and citations omitted.) Cogswell v. Am. Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638, 646-47 (2007).
In this case, " the presumption of the truth of the matters stated in the officer's return" does not seem to establish abode service although it conclusorily states that abode service was made.
The return of service (#101.00) recites that the Marshal made service (reciting the documents served) on the defendant Jennifer Allen
By leaving a true and attested copy thereof, with my doings there on endorsed with and served as an ABODE service on:
Jennifer Allen
At: 12 G Putnam Green
Greenwich, CT 06830
At the bottom of the return is a supplemental factual recitation:
Her husband opened the door. They are in the middle of getting divorced. However she comes and goes to pick up her mail. She still has a key to the unit. The husband placed the document on the mail where she will get it. Called attorney's office and notified them of service.
Abode service is not service at the last known address. Abode service is not service at a mail drop. The return of service suggests both last known address and the equivalent of a mailing address or mail drop--but contains no suggestion of actual or continuing residency.
A usual place of abode has been defined as a place of residence within the state. It is well established, however, that [o]ne may have two or more places of residence within a [s]tate, or in two or more [s]tates, and each may be a usual place of abode . . . Service of process will be valid if made in either of the usual places of abode . . . " Residence does not necessarily import domicil. Nor does usual place of abode import domicil . . . There is no relation between them, though they may be concurrent. A person may have two or more places of abode while he can have only one domicil."(Internal quotation marks and citations omitted.) Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 577-78, 953 A.2d 868, 874 (2008).
Although the address at which service was made might appear to be her abode, the facts as recited in the return of service make it doubtful; they are at best equivocal in that regard. Likelihood of receiving notice may be a consideration, but it is not the statutory requirement--if it were, service could also be made at a defendant's usual place of employment.
The court initially determined that it could not resolve a factual issue based on an equivocal written record without affording the parties an opportunity to present testimony on the issue. Accordingly, the court conducted an evidentiary hearing on July 10, 2017. Evidence was submitted to the court, and the defendant testified with respect to her relationship to the address at which service was made.
The plaintiff relies extensively on the fact that the defendant has/had filed a number of applications for protective orders, and on most of them, especially those prior to the date that service purportedly was made in this case, she had listed the address at which service was made, as her address. The court's chief problem, however, is that an abode is a place at which one customarily lives/resides, and the evidence presented to the court indicated that the defendant no longer resided at the address at which service was made, at the time service was made.
In Argent, the court discussed a case in which an individual had been incarcerated, and concluded that both the place where he had lived prior to incarceration (and where he intended to return) and the place of his incarceration were abodes at which service could be made. Grant v. Dalliber, 11 Conn. 234 (1836). The court compared and distinguished the situation from a case in which an individual had been incarcerated, and his prior home had been sold while he was incarcerated, such that the prior address no longer could be considered an abode. Dunn's Appeal from Probate, 35 Conn. 82, 84-85 (1868). Despite the age of these cases, these Supreme Court decisions establish the applicable standards for this court--two " extremes" presenting scenarios warranting different results.
This case is closer to Dunn's Appeal, in that the court is satisfied that, based on the evidence presented, the defendant no longer could consider the address at which service was made to be her abode. It was a former marital residence, but the defendant offered sufficiently-convincing evidence to establish that she had been thrown out of that home by her former spouse, who made it clear that she was not to return, especially for purposes of residence. There were veiled (or not so veiled) threats as to the adverse consequences that would ensue, should she return, and obtaining her possessions from the site itself was a challenge. Under the circumstances, the court must conclude that the use of that address for purposes of mail was not inconsistent with the address not being her abode--until an alternate mailing address was established, it was the only " fixed" address that could be used, for relatively reliable receipt of mail.
An incarcerated person is likely to return to his/her home after release, such that the pre-confinement address is likely to be properly characterized as an abode notwithstanding non-current residency. In the context of a party moving out (being thrown out) due to a marriage dissolution/breakdown or other seemingly-final end of joint living arrangements, there is no such expectation or likelihood of return for purposes of residency. The continued use of an address for mail purposes does not suffice--abode implies actual (if not exclusive) residence, and a mailing address can be a post office box or other arrangement unrelated to status as a residence.
The court recognizes that the defendant did obtain actual notice of the proceedings, and in some instances that has been suggested as sufficient for jurisdiction. That analysis, however, effectively creates a blanket exception to service which, while not eviscerating the rule entirely, does negate it substantially. Any motion to dismiss--timely or untimely (with reference to the return date)--is based on some underlying form of actual notice (or otherwise no motion would/could be filed). Connecticut adheres to the requirement of formalized service rather than mere receipt of notice, and under the circumstances, the court cannot find that service was made at a then-abode of the defendant.
Conclusion
The court appreciates that there is a substantial emotional component to the relationship between the parties, and the prolongation of the process of litigation can only exacerbate the situation. The court is required to adhere to the requirements of law, and under the circumstances of this case, the defendant was not served at her abode, as recited in the marshal's (candid) return of service. She no longer resided at the address, and there was no likelihood or expectation that she ever would reside there in the future. The plaintiff may not have known the details of the situation, and may not have had the ability to determine those facts in a reasonable or practical manner, but the issue is not what the plaintiff believed but whether the address actually was an abode of the defendant at the time of service. There may not always be a " bright line" demarcation, but when an address ceases to be an abode, abode service cannot be made at that location. Although perhaps not articulated in precise terms, when the marshal made " abode" service, he had been told by the defendant's then-husband (in effect) that the defendant no longer resided at that location, which precludes abode service at that address.
For all of these reasons, the motion to dismiss is granted.