Karen K. Jacobs v. Andrew M. Jacobs (2013)

MOTION TO DISMISS

FACTS

On April 13, 2012, the plaintiff, Karen Jacobs, filed for dissolution of marriage against the defendant, Andrew Jacobs.   She seeks a fair division of property, alimony, child support for and sole custody of the one minor child, and an order regarding post-majority educational support.   The plaintiff filed a pendente lite motion on October 17, 2012 to implead Attorney Gary Ginsberg, trustee of the Howard I. Jacobs trust (the trust) of which the defendant is a beneficiary on the ground that the trust or corpus is a marital asset subject to equitable distribution and therefore the trustee should be impleaded.   The defendant objected on the grounds that the plaintiff has not made a showing that the trust was set up for any improper purpose or that the defendant has any control over any trust assets, and furthermore, he points out that the trustee has absolute discretion to make distributions as it deems fit.   The court, Gould, J., granted the plaintiff's motion to implead stating:  “The defendant's interests as delineated in the subject trust are clear, definitive and are therefore ‘presently existing’ ․ As such, they are more than the ‘mere expectancies' ․” The court further directed that any order entered would reflect that the actual trustee is the law firm of Ginsberg & Babbitz, LLC, not Attorney Ginsberg individually.

The plaintiff served process, along with exhibits, on Attorney Babbitz on February 28, 2013.   In her one-count amended complaint, the plaintiff claims, inter alia, an equitable interest in the trust.   On April 1, 2013, Ginsberg & Babbitz, LLC (trustee) filed a motion to dismiss, pursuant to Practice Book §§ 25–12 and 25–13, the amended complaint on the grounds that the court (1) lacks subject matter jurisdiction to adjudicate a division of the trust because the defendant's beneficial interest in the trust is not a marital asset and the plaintiff does not have standing to assert a claim against the trust and (2) lacks personal jurisdiction over the trust because the plaintiff has not complied with the statutory requirements of proper service on the trustee in violation of General Statutes § 52–45a and has failed to return the writ of summons and amended complaint within the time allowed by General Statutes § 52–46a.   The trustee submitted a memorandum of law and copies of the will of Howard I. Jacobs, the summons and the amended complaint.   In response the plaintiff filed an objection and memorandum of law.   Submitted with that is a copy of a Business Inquiry for the law firm of Ginsberg Babbitz, LLC stating that David Babbitz is the agent.¹  The matter was heard at short calendar on April 25, 2013.

DISCUSSION

Subject matter jurisdiction

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).  “[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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.”  (Internal quotation marks omitted.)   Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).  “In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ․ other types of undisputed evidence ․ and/or public records of which judicial notice may be taken ․ [T]he trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint.”  (Citations omitted;  internal quotation marks omitted.)  Id., 651–52.

“Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ․ [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ․ The objection of want of jurisdiction may be made at any time ․ [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention ․ The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings.”  (Internal quotation marks omitted.)   Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).

“It is well established that [a] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim ․ Standing is the legal right to set judicial machinery in motion ․ [T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear ․ Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause.”   (Citations omitted;  internal quotation marks omitted.)  Megin v. New Milford, 125 Conn.App. 35, 37, 6 A.3d 1176 (2010).

“Standing is not a technical rule intended to keep aggrieved parties out of court;  nor is it a test of substantive rights.   Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented ․ These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity.   Such a personal stake in the outcome of the controversy ․ provides the requisite assurance of concrete adverseness and diligent advocacy ․ The requirement of directness between the injuries claimed by the plaintiff and the conduct of the defendant also is expressed, in our standing jurisprudence, by the focus on whether the plaintiff is the proper party to assert the claim at issue.”  (Internal quotation marks omitted.)  PNC Bank, N.A. v. Kelepecz, 289 Conn. 692, 705, 960 A.2d 563 (2008).

In support of its motion to dismiss, the trustee argues that this court lacks subject matter jurisdiction because the defendant's beneficial interest in the testamentary trust is not a marital asset for the following reasons:  (1) he has no control or ability to directly access the corpus of the trust, (2) he is guaranteed no fixed sums, (3) he has no discretion to distribute income and principal which is solely vested with the law firm as trustee and (4) the plaintiff is not a beneficiary under the trust.   The trustee further argues that inasmuch as the corpus is not a marital asset, the plaintiff lacks standing to bring a claim against the trust or trustee.   In response the plaintiff counters that Practice Book § 9–22 and General Statutes § 52–102 provides the court with discretion to grant the addition of a party to a cause of action.   The plaintiff also asserts that whether the trust is a marital asset should be decided by the court at trial but in order to make this determination the trustee is a necessary party.

The present case is an action for dissolution.   The plaintiff has a personal stake in the outcome of this controversy and consequently has standing.   Further, this court has subject matter jurisdiction over marital dissolutions pursuant to General Statutes § 46b–1.²  The trustee was cited into the case following a decision of the court on the plaintiff's motion to cite in an additional party in order to determine whether the trust is a marital asset subject to fair division of property under General Statutes § 46b–81.³  This is not a question of jurisdiction.   Therefore, whether the testamentary trust is a marital asset does not render the court without subject matter jurisdiction.   Moreover, the trustee cannot parcel out a portion of the property that may or may not be subject to equitable distribution and claim the plaintiff has no standing to bring her action for the dissolution of the marriage in a pretrial motion to dismiss.   Accordingly, the trustee's motion to dismiss the amended complaint for a lack of subject matter jurisdiction is denied.

Personal Jurisdiction

“The grounds which may be asserted in [a motion to dismiss] are:  ․ lack of jurisdiction over the person ․ and insufficiency of service of process.”   Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, now § 10–31.  “Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction ․ 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.”  (Internal quotation marks omitted.)  Morgan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011).  “[T]he Superior Court ․ may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction ․ [W]hen a particular method of serving process is set forth by statute, that method must be followed ․ Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction ․ Unlike subject matter jurisdiction ․ personal jurisdiction may be created through consent or waiver.”  (Citations omitted;  internal quotation marks omitted.)  Narayan v. Narayan, 305 Conn. 394, 402–03, 46 A.3d 90 (2012).

The trustee argues that it was not served with process in accordance with General Statutes § 52–45a ⁴ inasmuch as the plaintiff served Babbitz individually and not the law firm as trustee, the trust is not identified either on the summons, the caption of the amended complaint or within the amended complaint.   Further, the trustee argues that the amended complaint as filed was not returned to the court at least six days before the return date as required by General Statutes § 52–46a.⁵  In response the plaintiff counters that service of process on Babbitz was proper since he is the agent for service on the law firm as set forth in the Commerical/Recording Division of the Connecticut secretary of state.

Procedurally, “[t]o add an additional party, the plaintiff could, at any time, simply move to add an additional party defendant pursuant to Practice Book § 9–22, amend their complaint and serve whomever they wish to add as a defendant in the action.”  (Internal quotation marks omitted.)   Pasquariello Electric Corp. v. Nyberg, Superior Court, judicial district of New Haven, Docket No. CV 08 5024983 (October 7, 2009, Zoarski, J.T.R.).   With respect to service, a marshal's “return is prima facie evidence of the facts stated therein.”   (Internal quotation marks omitted.)  Bove v. Bove, 93 Conn.App. 76, 82, 888 A.2d 123, cert. denied, 277 Conn. 919, 895 A.2d 788 (2006).  “[T]he matters stated in the return, if true, confer jurisdiction.”  (Internal quotation marks omitted.)  Knipple v. Viking Communications, Ltd., 236 Conn. 602, 607 n.9, 674 A.2d 426 (1996).  “[A] defendant who contests the facts stated in the return bears the initial burden of disproving personal jurisdiction.”   Jimenez v. DeRosa, 109 Conn.App. 332, 341, 951 A.2d 632 (2008).   Service on a law firm is on its authorized agent.   See Wylie v. Wachovia Bank, N.A., Superior Court, judicial district of New Haven, Docket No. CV 03 0480076 (November 7, 2003, Devlin, J.).

Exhibit B of the trustee's motion to dismiss includes copies of a document entitled Summons and amended complaint.   The summons states that it is to be served on Attorney David Babbitz in West Haven who is to file an appearance at 235 Church Street in New Haven, Connecticut on or before the second day after March 12, 2013.   March 12, 2013 is the return date.   The plaintiff filed this document in the court on March 7, 2013 along with the amended complaint and the marshal's return affirming that David Babbitz was served in hand but without including the trustee in the caption or in the cause of action.   The plaintiff did not add the name of the trustee to the amended complaint but did add new paragraph (9) alleging:  “The defendant has an interest in a Trust entitled the Howard I. Jacobs Trust, in which the Plaintiff claims an equitable interest.”   Service was proper on the trustee's authorized agent as evidenced by the marshal's return.

The plaintiff filed the summons and complaint on March 7, 2013 within five days of the return date of March 12, 2013.   Our Supreme Court stated in Coppola v. Coppola, 243 Conn. 657, 707 A.2d 281 (1998), that “the requirement of § 52–46a to return process in civil actions to the clerk of the Superior Court at least six days before the return date is mandatory and failure to comply with its requirements renders the proceeding voidable, rather than void, and subject to abatement ․ [O]nce an action has been brought by service of process on the defendant, a trial court may thereafter dismiss the action for failure to return the service of process within the mandated time period.”  (Citation omitted;  internal quotation marks omitted.)  Id., 661–62.   Amending a return date, however, is permissible pursuant to General Statutes § 52–72(a), which provides that “[a]ny court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective.”   Although a return date may be amended “it must still comply with the time limitations in [General Statutes] § 52–48(b).  Section 52–48(b) requires that ‘[a]ll process shall be made returnable not later than two months after the date of the process ․’ Section 52–48(b), therefore, with its two month limit, circumscribes the extent to which a return date may be amended.”  Id., 666–67.

In the present case, the plaintiff has not attempted to amend the return date within the two months provided in § 52–48(b).  Accordingly, the trustee's motion to dismiss on the ground of personal jurisdiction is granted.

By the Court

Judge Richard E. Burke

FOOTNOTES

FN1. Neither party has objected to the admissibility of the documents attached to the motion and objection..  FN1. Neither party has objected to the admissibility of the documents attached to the motion and objection.

FN2. General Statutes § 46b–1 in relevant part provides:  “Matters within the jurisdiction of the Superior Court deemed to be family relations matters shall be matters affecting or involving:  (1) Dissolution of marriage ․”.  FN2. General Statutes § 46b–1 in relevant part provides:  “Matters within the jurisdiction of the Superior Court deemed to be family relations matters shall be matters affecting or involving:  (1) Dissolution of marriage ․”

FN3. General Statutes § 46b–81 provides in relevant part:  “(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint ․ the Superior Court may assign to either the husband or wife all or any part of the estate of the other ․”.  FN3. General Statutes § 46b–81 provides in relevant part:  “(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint ․ the Superior Court may assign to either the husband or wife all or any part of the estate of the other ․”

FN4. Section 52–45a provides:  “Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator.   The writ shall be accompanied by the plaintiff's complaint.   The writ may run into any judicial district and shall be signed by a commissioner of the Superior Court or a judge or clerk of the court to which it is returnable.”.  FN4. Section 52–45a provides:  “Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator.   The writ shall be accompanied by the plaintiff's complaint.   The writ may run into any judicial district and shall be signed by a commissioner of the Superior Court or a judge or clerk of the court to which it is returnable.”

FN5. Section 52–46a provides in relevant part:  “Process in civil actions ․ returnable to the Superior Court ․ [shall be returned] to the clerk of such court at least six days before the return day.”.  FN5. Section 52–46a provides in relevant part:  “Process in civil actions ․ returnable to the Superior Court ․ [shall be returned] to the clerk of such court at least six days before the return day.”

Burke, Richard E., J.