Cato v. Cato

605 A.2d 558, 27 Conn. App. 142, 1992 Conn. App. LEXIS 126

• Court: Connecticut Appellate Court
• Decided: March 24, 1992
• Docket: 10156
• Status: Published

Opinions

Foti, J.

The defendant appeals from the judgment dissolving the parties’ marriage. He claims that the trial court improperly determined that the process and service of process were sufficient, and that the court had personal jurisdiction over him. We affirm the judgment of the trial court.

The following undisputed facts are relevant to this appeal. The parties were married in Amsterdam, New York, on November 12, 1965. In 1970, they purchased a home in Bloomfield and were domiciled there until their separation in March, 1989. After the separation, the defendant resided in Texas where he was personally served with divorce papers in-hand by a sheriff of that state on January 3, 1990. The defendant continued to own property in Connecticut. He appeared specially to contest personal jurisdiction, and, on January 22, 1991, the court, Barall, J., denied his motions to dismiss.¹ Thereafter the court, Steinberg, J., rendered judgment dissolving the parties’ marriage and ordered the defendant to pay periodic alimony to the plaintiff in the amount of $630 per week. The court also ordered that the defendant maintain $250,000 in life insurance coverage and name the plaintiff as an irrevocable beneficiary, convey his interest in the marital home to the plaintiff, and pay certain counsel fees.

The defendant claims that the court lacked jurisdiction over the complaint as well as personal jurisdiction over the defendant. We do not agree. Mere notice of an action is not sufficient to confer personal jurisdiction over a nonresident defendant. Robertson v. Robertson, 164 Conn. 140, 144, 318 A.2d 106 (1972). “Such jurisdiction over a nonresident requires statutory authorization.” Goldstein v. Fischer, 200 Conn. 197, 201, 510 A.2d 184 (1986). Such personal jurisdiction may be allowed pursuant to General Statutes § 46b-46 (b), the domestic relations long-arm statute. Jones v. Jones, 199 Conn. 287, 290-91, 507 A.2d 188 (1986).

The defendant correctly asserts that a statutory basis for jurisdiction is mandatory, and that the concept of due process cannot take the place of statutory compliance. We do not agree with the defendant’s claim, however, that, under the circumstances of this case, General Statutes § 46b-46 (a)² mandates service of process only by an order of notice and does not permit in-hand service outside of Connecticut on the defendant who is subject to personal jurisdiction under § 46b-46 (b).* *³ The defendant concedes that he knew of the existence of the complaint; he does not claim that he did not have the opportunity to defend. We conclude that General Statutes § 52-57a⁴ allows for in-hand service outside of Connecticut on a resident of another state if all of the other requirements of § 46b-46 (b) have been satisfied.

Section 46b-46 (b) allows a court to “exercise personal jurisdiction over the nonresident party as [to] matters concerning temporary or permanent alimony or support of children, only if: (1) The nonresident party has received actual notice under subsection (a) of this section . . . .” (Emphasis added).⁵ 6Subsection (a) confers jurisdiction on a court to entertain complaints for dissolution when the defendant is a nonresident or his whereabouts are unknown. Jones v. Jones, supra, 290-91. It also describes methods to be followed to give a “nonresident party actual notice of the pending proceedings, and authorizes the court to hear the complaint either if the nonresident party has received such notice or if a reasonable effort to afford him notice has been made.” Id.

Our Supreme Court in Jones addressed the applicability of § 46b-46 to postjudgment modification proceedings in Connecticut dealing with a Connecticut divorce judgment. The court stated that the enactment of a domestic relations long-arm statute respecting family matters demonstrates an intent by our legislature to “exercise its full constitutional power, limited only by the constraints of due process, over nonresidents being sued for nonsupport of their children”; id., 292; as well as those being sued for alimony.

We cannot agree with the defendant that § 46b-46 (b) should be construed narrowly. Statutes that provide for parental support and maintenance of minor children are to be construed broadly. Id., 291.

“The purpose of an order of notice is, of course, to give notice to the party being sued. It is not a mere perfunctory act in order to satisfy the technicalities of a statute, but has, as its basis, constitutional dimensions. ‘An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pen-dency of the action and afford them an opportunity to present their objections.’ Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950).” Bank Mart v. Langley, 39 Conn. Sup. 198, 199-200, 474 A.2d 491 (1984).

It would be both illogical and unreasonable to construe our domestic relations long-arm statute⁶ in such a narrow manner as to ignore its very purpose. The defendant agrees that § 46b-46 is permissive and not mandatory but argues that our legislature intended that actual notice by service in-hand should be unacceptable unless a condition precedent occurs, that is, the obtaining of permission of the court by an order of notice. We recognize that in-hand service on a defendant is always the best and highest type of service and should be used, if possible. Smith v. Smith, 150 Conn. 15, 22-23, 183 A.2d 848 (1962). “The concept of jurisdiction over the person encompasses two separate ideas: a basis for jurisdiction, and, more importantly, fair notice to the defendant.” Anderson v. Schibi, 33 Conn. Sup. 562, 565, 364 A.2d 853 (1976); D’Occhio v. Connecticut Real Estate Commission, 189 Conn. 162, 172, 455 A.2d 833 (1983). The defendant neither challenges the fact that there was a basis for the trial court’s jurisdiction over him under the long-arm statute, nor claims that the actual method used here for giving notice, in-hand service, did not satisfy the constitutional requirement of due process. The process in this matter was correctly served in a prescribed manner, giving the court personal jurisdiction over the defendant, a nonresident, in an action brought under the long-arm statute § 46b-46 (b). The court properly found jurisdiction.

The judgment is affirmed.

In this opinion Norcott, J., concurred.

1 The defendant filed two motions entitled “Motion to Dismiss for Insufficiency of Process and Insufficiency of Service of Process,” and “Motion to Dismiss for Lack of Personal Jurisdiction over Defendant.”

2 General Statutes § 46b-46 (a) provides: “On a complaint for dissolution, annulment or legal separation, if the defendant resides out of or is absent from the state or the whereabouts of the defendant is unknown to the plaintiff, any judge or clerk of the supreme court or of the superior court may make such order of notice as he deems reasonable. After notice has been given and proved to the court, the court may hear the complaint if it finds that the defendant has actually received notice that the complaint is pending. If it does not appear that the defendant has had such notice, the court may hear the case, or, if it sees cause, order such further notice to be given as it deems reasonable and continue the complaint until the order is complied with.”

3 General Statutes § 46b-46 (b) provides: “The court may exercise personal jurisdiction over the nonresident party as matters concerning temporary or permanent alimony or support of children, only if: (1) The nonresident party has received actual notice under subsection (a) of this section; and (2) the party requesting alimony or support of children meets the residency requirement of section 46b-44; and (3) this state was the domicile of both parties immediately prior to or at the time of their separation.”

4 General Statutes § 52-57a provides: “A person domiciled in or subject to the jurisdiction of the courts of this state or his executor or administrator, may be served with process without the state, in the same manner as service is made within the state, by any person authorized to make service by the laws of the state, territory, possession or country in which service is to be made or by any duly qualified attorney, solicitor, barrister or equivalent in such jurisdiction.”

5 The defendant does not challenge the satisfaction of the other two conditions: (1) that the plaintiff met the residency requirements of § 46b-44, and (2) that Connecticut was the domicile of both parties immediately prior to or at the time of their separation.

6 While a long-arm statute may allow Connecticut courts to assert personal jurisdiction over a nonresident, such assertion of jurisdiction must still comply with federal constitutional requirements of due process. Gaudio v. Gaudio, 23 Conn. App. 287, 298, 580 A.2d 1212, cert. denied, 217 , 584 A.2d 471 (1990). All assertions of state court jurisdiction must be evaluated according to a minimum contacts test. Standard, Tallow Corporation v. Jowdy, 190 Conn. 48, 51, 459 A.2d 503 (1983). The defendant does not contest this requirement nor does he claim that his due process rights have been violated.