Kari D. Nettles fka Vazquez v. Mitchell A. Vazquez (2014)

MEMORANDUM OF DECISION

The matter comes before this court by way of the plaintiff's Motion to Dismiss Defendant's Motion to Modify (# 463.00) dated March 27, 2013 and her Amended Motion to Dismiss Defendant's Motion to Modify (# 470.00) dated April 13, 2013.   The defendant has filed an Objection to the Motion to Dismiss (# 467.00).   The plaintiff alleges three basic grounds for dismissal:  (1) improper service of process;  (2) failure to adequately state the grounds for the motion for modification per Practice Book § 25–26(e);  and (3) the failure of the defendant's counsel to sign the pleading as required by Practice Book § 4–2.   The plaintiff has supported each of her motions with a memorandum of law (# 464.00 and # 472.00).   Counsel asked the court to decide the matter on the pleadings.

A motion to dismiss contests the jurisdiction of the court to hear a matter.   Practice Book § 10–30.   The motion is “used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process.”  Practice Book § 10–31(a).   Objections to personal jurisdiction must be raised in a timely fashion via a motion to dismiss or they are waived.  Carpenter v. Law Offices of Dressler & Associates, 85 Conn.App. 655, 661 (2004).   When a question of jurisdiction arises, the court should address the matter prior to deciding other aspects of the case.  State v. Malkowski, 189 Conn. 101, 104 (1983).

Practice Book § 4–2(a) clearly provides in relevant part:  “Every pleading or other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name.”  (Emphasis added.)   The purpose of this rule is to ensure accountability by an officer of the court, and to protect the integrity of the judicial process, so that genuine issues are presented to the court in good faith and not for purposes of delay.   It is a certification that, among other things, the attorney has read the document itself.   The underlying issue here is that the defendant's counsel, who was out of town at the time, authorized a staff member at his office to place a stamp facsimile of his signature on the motion for modification, which was then served on the plaintiff and filed with the court.   Counsel admitted as much on the record.   This is problematic, and in the absence of any evidence that he, at the very least, reviewed the documents electronically prior to service and filing, which the court could well have taken into account as a mitigating factor under all the circumstances, it is fatal.   Plaintiff's Amended Motion (# 470.00) being timely filed, for the foregoing reasons, it should be granted.

Since the foregoing is dispositive of the issue, the court will briefly address the arguments raised by the plaintiff in her Motion to Dismiss (# 463.00).   The court finds that while the defendant's Motion for Modification (# 461.00) dated January 28, 2013, is spare of language, it sufficiently apprises the plaintiff of the grounds for modification, specifically that his, “financial circumstances have changed substantially to his financial detriment,” and that he “seeks a modification downwards re:  child support and private school tuitions.”  Berg v. Berg, 24 Conn.App. 509, 514 (1991).   At that point, the plaintiff is free to conduct discovery in order to ascertain the actual facts.   The defendant is limited to his pleading and cannot argue other grounds.  Gosselin v. Gosselin, 110 Conn.App. 142, 147 (2008).   Accordingly, there was no absence of due process, and that grounds for dismissal must fail.

As to the issues regarding service of process by one other than the State Marshal to whom the papers were originally entrusted, the court has reviewed the memoranda of law and accompanying exhibits, including attached affidavits.   Moreover, the plaintiff has cited Attorney General's Opinion # 2009–009, dated September 21, 2009, and attached a copy to her memorandum.   It is clear from a reading of the Opinion that it is contemplated that on some occasions, more than one person may serve different parts of the same process, provided that there be only one charge to the party for whom the papers are being served, and that each process server clearly identifies the portion that they served.

A marshal's “return is prima facie evidence of the facts stated therein.”   Tax Collector v. Stettinger, 79 Conn.App. 823, 825 (2003).   The court finds that based on the Affidavit of Earnest A. Laden (defendant's Exhibit A to Memorandum in Support of Objection, # 468.00), the person who made service was, in fact, a State Marshal, that he was originally entrusted with the papers, and that he, himself signed the return.   Furthermore, the court has no credible evidence before it that more than one charge for the overall service was billed to the defendant.   In fact, the marshal's affidavit demonstrates that only one bill was presented.   Accordingly, that grounds for dismissal must fail.

ORDER

For the foregoing reasons, the defendant's Objection (# 467.00) to the Plaintiff's Motion to Dismiss (# 463.00) is HEREBY SUSTAINED IN PART and the plaintiff's Motion to Dismiss (# 463.00) is HEREBY DENIED, and the plaintiff's Amended Motion to Dismiss (# 470.00) as to the lack of original signature is HEREBY GRANTED, and as to the remainder is HEREBY DENIED.   Therefore, the Motion for Modification (# 459.01) is HEREBY DISMISSED.

THE COURT

SHAY, J.

Shay, Michael E., J.