Nadine M. Chance v. Noel R. Chance (2012)

RULING ON DEFENDANT'S MOTIONS TO DISMISS (# 111, # 113)

The plaintiff, Nadine Chance, seeks to dissolve her marriage to the defendant, Noel Chance.   The plaintiff first filed her complaint on December 29, 2011.   The latter complaint, and the plaintiff's subsequent effort to amend her complaint, generated a total of three motions to dismiss by the defendant.   Two of those motions to dismiss the complaint are pending at this time, pleadings numbered 111 and 113.   Each party is self-represented.

I

PROCEDURAL HISTORY

The plaintiff signed her initial complaint on December 15, 2011.   The return of service shows that the defendant was served, in-hand, on December 20, 2011, at the Brooklyn Correctional Institution, 59 Hartford Road, Brooklyn, Connecticut.   On January 5, 2012, the defendant filed his first motion to dismiss, alleging that the plaintiff had improperly completed the summons and complaint forms (JD–FM–3 and JD–FM–159).   On February 6, 2012, the court ordered the plaintiff to file an amended complaint within thirty days.   The plaintiff filed an amended complaint on March 5, 2012 (# 110).

On March 3, 2012, the defendant moved to dismiss the amended complaint (# 111), and on March 20, 2012, he filed another motion to dismiss the amended complaint (# 113).   The latter motion to dismiss is identical to the March 3, 2012 motion except that the latter motion is accompanied by a memorandum of law (# 114).   The defendant appeared before the court to argue in support of his motions on April 30, 2012.   The plaintiff did not appear.

II

DISCUSSION

“A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ․ When a ․ court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader ․ The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.”  (Citation omitted;  internal quotation marks omitted.)   Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).  “Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person.”  (Emphasis in original;  internal quotation marks omitted.)  Bridgeport v. Debek, 210 Conn. 175, 179–80, 554 A.2d 728 (1989).

The jurisdictional requirements for a dissolution proceeding are limited.   General Statutes § 46b–44 provides in relevant part:  “(a) A complaint for dissolution of a marriage ․ may be filed at any time after either party has established residence in this state ․ (c) A decree dissolving a marriage ․ may be entered if:  (1) One of the parties to the marriage has been a resident of this state for at least the twelve months next preceding the date of the filing of the complaint or next preceding the date of the decree;  or (2) one of the parties was domiciled in this state at the time of the marriage and returned to this state with the intention of permanently remaining before the filing of the complaint ․” See LaBow v. LaBow, 171 Conn. 433, 439, 370 A.2d 990 (1976).

The defendant raises seven challenges to this court's jurisdiction over this matter.   The court will address those claims seriatim.   The defendant's first claim is that the plaintiff “failed to include [the] Docket No. as required (FA–12–4011594–S), and did not entail [sic] correct return date as required.   (January 31, 2012 not March 5, 2012).”

The defendant is correct that the plaintiff did not include the docket number in her amended complaint.   The defendant is incorrect in his claim that the latter shortcoming deprives this court of jurisdiction, and he offers no authority in support of his claim.   The amended complaint, despite the lack of a docket number, was filed by the court in the correct file and the defendant, in making his claim, accurately recites the docket number for this case.   Thus, the plaintiff's omission of the docket number did not cause any prejudice to the defendant, nor did it deprive this court of jurisdiction in this case.

Similarly, the court does not lack jurisdiction in this matter due to the plaintiff's failure to insert the correct return date in her amended complaint.  General Statute § 52–48 provides in relevant part:  “(a) Process in civil actions ․ brought to the superior court may be made returnable on any Tuesday in any month ․ (b) All process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held.”  General Statutes § 52–72 is also relevant to this issue and provides that “[a]ny court shall allow a proper amendment to civil process which has been made returnable to the wrong return day ․ (c) If the court, on motion and after hearing, finds that the parties had notice of the pendency of the action and their rights have not been prejudiced or affected by reason of the defect, any attachment made by the original service ․ shall be preserved and continued from the date of service of the original process as though the original process had been in proper form.”

Our Supreme Court has analyzed the meaning of the word “defective” in General Statutes § 52–72.   In Concept Associates, Ltd v. Board of Tax Review, 229 Conn. 618, 625, 642 A.2d 1186 (1994), the Supreme Court held that General Statutes § 52–72 permits a plaintiff to file an amendment to correct an improper return date after the original return date has passed.   After noting that “the apparent intent of the legislature in enacting [the statute] was to prevent the loss of jurisdiction merely because of a defective return date” and that “[a]s a remedial statute, § 52–72 must be liberally construed in favor of those whom the legislature intended to benefit,” the court concluded that General Statutes § 52–72 provides for retroactive amendments to a return date.  (Internal quotation marks omitted.)  Id., 623, 625.   “[T]he purpose of § 52–72 is to provide for amendment of otherwise incurable defects that go to the court's jurisdiction.”  (Internal quotation marks omitted.)  Coppola v. Coppola, 243 Conn. 657, 663, 707 A.2d 281 (1998).   It is “consistent with ․ [the goal] to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.”   (Internal quotation marks omitted.)  Bocchino v. Nationwide Mutual Fire Ins. Co., 246 Conn. 378, 393, 716 A.2d 883 (1998).

Here, the original return date was January 31, 2012, which was a Tuesday.   This date was less than two months after the date of the process (December 15, 2011).   The process was returned to the court on December 20, 2011, more than six days before the return date.   Thus, the original complaint comported with all requirements of General Statutes § 52–48.   The plaintiff thereafter filed an amended complaint pursuant to an order of the court.  Practice Book § 10–60(a)(1).

To the extent the amended complaint erroneously entered a return date other than the one that appeared in the original complaint, such an error does not deprive this court of jurisdiction.   Nor is the defendant prejudiced by the error, since he correctly identified the original return date in his motion to dismiss.   Even if the error required correction, the court has the authority to permit such a correction pursuant to General Statute § 52–72.   However, the defendant has failed to identify a reason why the plaintiff's erroneous entry should be corrected.   An amended complaint need not be served by an indifferent person, but rather may be served by mailing a copy to the party.   See Practice Book §§ 10–60(a)(3), 10–13.   Rather than continue to order this self-represented plaintiff to file amended complaints for the purpose of correcting meaningless errors, and in order to permit her to have her day in court, this court declines to order her to file a second amended complaint for the purpose of inserting the original return date in any such second amended complaint.

The defendant's second claim is that the plaintiff “failed to include her birth name” in “Box 1” of her complaint.   The defendant offers no authority for the proposition that the latter omission deprives the court of jurisdiction.   This court has jurisdiction to order a name change in a dissolution action.   General Statutes §§ 46b–1(4), 46b–63.   Further, on page two of her complaint, the plaintiff requested the court to order a name change to “Nadine M. Pietrafesa.”   Finally, the defendant is not in any way prejudiced by the omission, in “Box 1,” of the plaintiff's birth name.   Indeed, at oral argument, he represented that he knows her birth name to be “Pietrafesa.”

The defendant's third claim is that the plaintiff incorrectly checked, at “Box 5” of her complaint, that she both “lived in Connecticut for at least 12 months immediately before the filing of this divorce complaint or before the divorce will become final” and also that she “lived in Connecticut at the time of the marriage, moved away, and then returned to Connecticut, planning to live here permanently.”   The defendant claims that the latter representation is factually incorrect.   However, he acknowledged that the former representation is true.

As has been discussed, this court has jurisdiction over a dissolution proceeding if “[o]ne of the parties to the marriage has been a resident of this state for at least the twelve months next preceding the date of the filing of the complaint or next preceding the date of the decree ․” General Statutes § 46b–44.   Since the defendant acknowledges that the plaintiff lived in Connecticut for at least twelve months prior to filing the complaint, it is irrelevant if she also lived in Connecticut during the marriage, moved away and then returned to Connecticut, planning to live here permanently.   Based on the representations in the complaint, and the admission by the defendant, the court concludes that the plaintiff “lived in Connecticut for at least 12 months immediately before the filing of this divorce complaint or before the divorce will become final,” and the court, therefore, has subject matter jurisdiction in this case.

The defendant's fourth claim is that the plaintiff did not represent, in her amended complaint, the reason why she is seeking a divorce.   In fact, the original amended complaint does state that the plaintiff is seeking a divorce because the marriage has broken down irretrievably.   It appears that the defendant's copy of the amended complaint was an incomplete version of the original copy.   The court has provided the defendant with an accurate copy of the original amended complaint.   The plaintiff is reminded that she must provide the defendant with accurate copies of all pleadings filed with the court.  Practice Book § 10–12(a).

The defendant's fifth claim is that the plaintiff did not include her home address and telephone number in the amended complaint.   In fact, the plaintiff's home address is included in the original amended complaint, and her telephone number appears on the original complaint.   The court can, and does, take judicial notice of the original amended complaint.  Drabik v. East Lyme, 234 Conn. 390, 398, 662 A.2d 118 (1995).   Even if the plaintiff had completely omitted her home address and telephone number from her filings, however, such omissions do not affect this court's subject matter jurisdiction, and the defendant fails to identify any authority to the contrary.

The defendant's sixth claim is that the plaintiff failed to certify the amended complaint.   Here, as with his fourth claim, it appears that the defendant was originally provided with an incomplete copy of the original amended complaint.   The original amended complaint is certified.

Finally, the defendant claims that the amended complaint should be dismissed because, in his view, the plaintiff has not “defended this case with due diligence.”   Setting aside the fact that the plaintiff is not obligated to “defend” this case, there is no basis for the claim that she has failed to prosecute this case with due diligence.   The fact that the plaintiff did not appear to argue against the motions to dismiss does not support the defendant's claim.¹  The plaintiff had not been ordered to be present at the hearing, and she has taken no action to delay the processing of her claim.

For all of the foregoing reasons, the motions to dismiss are denied.

So ordered.

BY THE COURT,

John A. Danaher III

FOOTNOTES

FN1. The defendant failed to adequately brief his claim that the case should be dismissed due to a lack of diligence by the plaintiff.   That failure, alone, causes his claim to fail.  Jellison v. O'Connell, 73 Conn.App. 564, 564, 808 A.2d 752 (2002).   It was only at oral argument that he indicated that this claim is based on the fact that the plaintiff was not present for oral argument..  FN1. The defendant failed to adequately brief his claim that the case should be dismissed due to a lack of diligence by the plaintiff.   That failure, alone, causes his claim to fail.  Jellison v. O'Connell, 73 Conn.App. 564, 564, 808 A.2d 752 (2002).   It was only at oral argument that he indicated that this claim is based on the fact that the plaintiff was not present for oral argument.

Danaher, John A., J.