Louis Dellacagna v. Karen Dellacagna (2012)

MEMORANDUM OF DECISION ON MOTION TO REOPEN JUDGMENT

The marriage of the parties was dissolved in Danbury, Connecticut on May 11, 2011, Marano, J., at an uncontested hearing.   The defendant did not appear.   On July 1, 2011, the defendant filed an appearance and a motion to modify the judgment by restoring her birth name, Ruggiero.   Her motion was granted July 25, 2011, Marano, J. By motion dated September 5, 2011, the defendant sought the opening and dismissal of the judgment claiming insufficient service of process and lack of personal jurisdiction.   After hearing evidence on November 21, 2011, the court made certain findings of fact:  that the defendant was properly served with process initially where she resided in New York State;  that the defendant has not been in the military service of the United States;  that the defendant declined to file an appearance in the Connecticut court proceedings prior to judgment;  that the plaintiff lived in the State of Connecticut for at least twelve months continuously before the completion of the divorce on May 11, 2011;  and that that the defendant assiduously avoided any visits to Connecticut during the pendency of the divorce proceedings.   Relying heavily on the case of Pinder v. Pinder, 42 Conn.App. 254, 679 A.2d 973 (1996), the court ruled that the dissolution court lacked personal jurisdiction over the defendant for purposes of addressing her rights to alimony and the division of assets outside the State of Connecticut.   The court opened the judgment and deleted from it all orders affecting the personal rights of the defendant to claim alimony and property.

The plaintiff filed a motion to reargue and reopen dated December 1, 2011, stressing the post-judgment filing of a general appearance by the defendant on July 1, 2011, and claiming the defendant's post-judgment appearance subjected the defendant to the personal jurisdiction of the Connecticut court for all purposes of the judgment.   The court allowed further argument December 19, 2011.   Further briefs were submitted by January 10, 2012, and January 17, 2012.   For reasons set forth herein, the court is vacating its orders of November 21, 2011, and restoring the original judgment of May 11, 2011, in its entirety.   The court is also restoring the defendant's name change order of July 25, 2011.

Without service on the responding party within this state, the Connecticut court has no jurisdiction to render a judgment in personam, such as one ordering payment or nonpayment of alimony.   See Pinder v. Pinder, supra, 42 Conn.App. 259–60.  “In whatever manner such an issue [of jurisdiction] comes to the attention of a court, it must be addressed, even if the court must act sua sponte in order to do so.”  Id., 258.   Notwithstanding the rule set forth by the Appellate Court in Pinder, the Supreme Court has identified an exception.¹  “It is fundamental that jurisdiction over a person can be obtained by waiver.”  (Emphasis in original.)  Connor v. Statewide Grievance Committee, 260 Conn. 435, 445, 797 A.2d 1081 (2002), citing United States Trust Co. v. Bohart, 197 Conn. 34, 39, 495 A.2d 1034 (1985).

Historically, when the Connecticut courts allowed a special appearance to address issues of jurisdiction, entry of a general appearance post-judgment waived any personal jurisdiction defect and submitted the party to personal jurisdiction.   See Robertson v. Robertson, 164 Conn. 140, 145, 318 A.2d 106 (1972).   Doing away with special appearances necessitated a rules change so that a party could enter a general appearance with the intent of disputing personal jurisdiction.  Bove v. Bove, 93 Conn.App. 76, 78 n.3, 888 A.2d 123 (2006), cert. denied, 277 Conn. 919, 895 A.2d 788 (2006).  “[T]he filing of an appearance on behalf of a party, in and of itself, does not waive that party's personal jurisdiction claims.”  Pitchell v. Hartford, 247 Conn. 422, 432, 722 A.2d 797 (1999).   To make clear the intent to dispute personal jurisdiction, a party is limited by Practice Book §§ 10–30 and 10–32 to a thirty-day window within which to file the necessary motion to dismiss.   Any party wishing to contest the court's personal jurisdiction must file the motion to dismiss in a timely fashion.   Failure to do so will be deemed a waiver of any further claims of lack of jurisdiction.  Morgan v. Hartford Hospital, 301 Conn. 388, 404, 21 A.3d 451 (2011).

Having failed to file her motion to dismiss within thirty days of her general appearance on July 1, 2011, the defendant waived any right to bring a challenge to personal jurisdiction.   Her motion of September 5, 2011, was not timely.   The orders of this court on November 21, 2011, are hereby vacated.   The judgment of May 11, 2011, is restored.   In accordance with the modification on July 25, 2011, the defendant's name henceforth is Karen Ruggiero.

BY THE COURT,

Winslow, J.

FOOTNOTES

FN1. In 2008, the Appellate Court acknowledged that the Supreme Court carved out an exception to the Pinder holding.  “The defendant relies on Pinder v. Pinder, 42 Conn.App. 254, 258, 679 A.2d 973 (1996), which he cites for the proposition that any time personal jurisdiction is brought to the attention of the court, the court must address it prior to proceeding with the case.   More recently, however, in Connor v. Statewide Grievance Committee, 260 Conn. 435, 445, 797 A.2d 1081 (2002), our Supreme Court indicated that personal jurisdiction can be obtained by waiver.   The court held that a party may contest the court's jurisdiction either prior to making an appearance or by filing a motion to dismiss within thirty days of filing an appearance.   In Connor, our Supreme Court held that the fact that the defendant had failed to file a motion to dismiss within thirty days of filing an appearance constituted a waiver of its right to contest the court's personal jurisdiction over the defendant.  Id.” Berzins v. Berzins, 105 Conn.App. 648, 649, 650 n.1, 938 A.2d 1281 (2008), cert. denied, 289 Conn. 932, 958 A.2d 156 (2008)..  FN1. In 2008, the Appellate Court acknowledged that the Supreme Court carved out an exception to the Pinder holding.  “The defendant relies on Pinder v. Pinder, 42 Conn.App. 254, 258, 679 A.2d 973 (1996), which he cites for the proposition that any time personal jurisdiction is brought to the attention of the court, the court must address it prior to proceeding with the case.   More recently, however, in Connor v. Statewide Grievance Committee, 260 Conn. 435, 445, 797 A.2d 1081 (2002), our Supreme Court indicated that personal jurisdiction can be obtained by waiver.   The court held that a party may contest the court's jurisdiction either prior to making an appearance or by filing a motion to dismiss within thirty days of filing an appearance.   In Connor, our Supreme Court held that the fact that the defendant had failed to file a motion to dismiss within thirty days of filing an appearance constituted a waiver of its right to contest the court's personal jurisdiction over the defendant.  Id.” Berzins v. Berzins, 105 Conn.App. 648, 649, 650 n.1, 938 A.2d 1281 (2008), cert. denied, 289 Conn. 932, 958 A.2d 156 (2008).

Winslow, Heidi G., J.