Smith v. Smith (2014)

Memorandum of Decision Re Defendant's Motion to Dismiss—# 124 and Memorandum in Support of Motion—# 125

Defendant brings this Motion to Dismiss claiming that the court lacked personal jurisdiction over the defendant when it issued its orders pursuant to a Motion for Contempt filed by plaintiff and heard on September 5, 2013 and November 7, 2013.   Defendant contends that plaintiff failed to properly serve him with notice of the pending motion and further that the court's order of constructive notice by publication was based on misrepresentations by plaintiff.   Defendant also claims that the court should have required plaintiff to notify defendant by e-mail of the pending motion and hearing date.

The parties' marriage was dissolved on October 4, 1982.   At the time of dissolution, the court ordered defendant to pay alimony in the amount of $125 per week for a period of eight years.   Plaintiff testified credibly that the defendant never paid this award of alimony.   She further testified she never sought any court relief regarding nonpayment of this award as she was fully capable of supporting herself.   Recently she became unable to work and found herself in dire financial straits.   Plaintiff testified she was able to contact defendant through e-mail and requested he pay her monies toward the alimony arrearage which she had calculated to reach $58,859.   Defendant sent her $700 in October 2012.   No other payments have been made.

Plaintiff filed her first Motion for Contempt, # 116.79, alleging non-payment of an award of alimony in June 2013.   Plaintiff filed her second Motion for Contempt # 117.89, on September 5, 2013.

Plaintiff appeared on September 5, 2013 and testified credibly regarding her attempts to locate an address for service on the defendant.   The defendant would not provide her with a home address.   She located an address in Michigan where defendant receives his social security check.   The process server made six attempts at service at that location and finally discovered that while the defendant owned the property he no longer lived there.   The return address on the envelope containing $700 did not exist.   Plaintiff was able to determine that the defendant owned property in Virginia and attempted service on him at 410 South Maple Ave., Apt. 510, Falls Church, Virginia.   The return notes that the process server spoke with the current resident of that location and was informed that defendant had moved to an unknown location.   Another possible address in Virginia was investigated;  again, process servers discovered that the defendant did not reside at that location.   Further, plaintiff testified that while she initially was able to contact defendant via e-mail, defendant ultimately stopped responding to that contact.

After hearing testimony on the contempt motions regarding plaintiff's attempts to serve defendant, the court allowed notice by publication in both Michigan and Virginia in the areas where defendant was last known to reside and owned property and set a hearing date for November 7, 2013.

The defendant did not appear at the November hearing.   The court received the returns for notice by publication.   The court found that the defendant had notice of the hearing and further found him in contempt of court orders finding that the defendant owed plaintiff the amount of $54,900.

A hearing on defendant's Motion to Dismiss was held on February 7, 2014.   Defendant was represented by counsel, plaintiff was self-represented.   The defendant did not appear;  he did submit an affidavit of facts challenging the credibility of plaintiff's sworn testimony.   It is important to note that nowhere in the affidavit did defendant state that he had given plaintiff his current address.   Nor does he dispute her attempts at service on him.

At the time of the November hearing, plaintiff had no recourse but to bring suit in the state of Connecticut to effectuate the dissolution judgment.   She testified credibly that all attempts at personal service failed and that defendant had refused to provide her with his address.   Her testimony was that she believed defendant lived in Virginia, but could not obtain his address.   Defendant's actions in using a false return address and receiving his monthly social security checks at an address where he did not reside further buttress plaintiff's argument that he was attempting to avoid service.

In Egan v. Egan, 83 Conn.App. 514, 518 (2004), the court noted “that no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable opportunity to appear and be heard.”  Practice Book Section 25–28(b) provides “where the party resides out of or is absent from the state any judge or clerk of the court may make such order of notice as he or she deems reasonable.   Such notice having been given and proved, the court may hear the motion if it finds that the adverse party has actually received notice that the motion is pending.”  Egan, at 518.   Notice by publication is an accepted method of constructive notice by the rules of practice.   At the November 7, 2013 hearing, the court found that the defendant had constructive notice of the motion and proceeded with the merits of the matter.

The court finds that the defendant was properly noticed of the pending motion and hearing and denies defendant's Motion to Dismiss.

By the Court

Honorable C. Klatt, J.

Klatt, Corinne L., J.