Judith A. Cato v. Herbert J. Cato, Jr., 226 Conn. 1

Berdon, J. The sole issue in this appeal is whether an order of notice is necessary to meet the jurisdictional requirements of General Statutes (Rev. to 1989) § 46b-46, the domestic relations long-arm statute. In this action for a dissolution of marriage, the defendant, who resided in Texas and received in-hand service of process by a process server in Texas, challenges the jurisdiction of the court because process was not served pursuant to an order of notice by a judge or clerk of the Superior Court. The following facts are undisputed. The defendant, Herbert J. Cato, and the plaintiff, Judith A.

Cato, were married in New York in 1965. They purchased a home in Bloomfield in 1970 and were domiciled there until their separation in March, 1989. After their separation, the defendant moved to Texas where he was personally served with a writ, summons and complaint brought by the plaintiff, seeking a dissolution of the marriage. The defendant was served in-hand, by a Texas sheriff, a process server. The defendant appeared specially to contest personal jurisdiction.

The defendant also filed two motions to dismiss, both of which were denied by the trial court, Barall, J., on the ground that the order of notice requirement in § 46b-46 is permissive and not mandatory. After hearing the merits of the case, the trial court, Steinberg, J., rendered judgment dissolving the marriage of the parties. The trial court ordered the defendant to pay periodic alimony to the plaintiff, to maintain life insurance coverage for the benefit of the plaintiff, to convey to the plaintiff his interest in the family home, and to pay attorney’s fees.

The defendant appealed to the Appellate Court, claiming that “the trial court improperly determined that the process and service of process were sufficient, and that the court had personal jurisdiction over him.” Cato v. Cato, 27 Conn. App. 142, 143, 605 A.2d 558 (1992). A divided Appellate Court affirmed the judgment of the trial court. The defendant petitioned this court for certification.

We granted his petition, limited to the following issue: “Was the divided Appellate Court correct in holding in a claim for dissolution that General Statutes § 52-57a allows for in-hand service of process by a Texas sheriff on a nonresident defendant in Texas without an order of notice having been obtained as provided for in the domestic relations long-arm statute, General Statutes § 46b-46?” Cato v. Cato, 222 Conn. 906, 608 A.2d 691 (1992). We affirm. The defendant does not challenge the constitutionality of § 46b-46 or suggest that the statutory requirements, if met, do not comport with due process.

Rather, the defendant argues that because the statute provides the basis for obtaining jurisdiction, due process requires strict compliance with the methods set forth by the statute. He argues that the statute mandates an order of notice as a condition precedent to actual notice and submits that the plaintiffs failure to comply with this statutory requirement deprived him of his property without due process of law.

We conclude that an order of notice under § 46b-46 is permissive, not mandatory, and is not a condition precedent to effective, in-hand service in another state pursuant to § 52-57a, which provides that “[a] person domiciled in or subject to the jurisdiction of the courts of this state . . . may be served with process without the state, in the same manner as service is made within the state, by any person authorized to make service by the laws of the state, territory, possession or country in which service is to be made . . . .” At issue is the construction to be afforded § 46b-46 (

a) and (b). We begin our analysis by noting the well established principle that “statutes providing for parental support and maintenance of minor children are to be broadly construed.” Jones v. Jones, 199 Conn. 287, 291, 507 A.2d 88 (1986). Moreover, we have previously recognized that “in enacting a long-arm statute with respect to family matters, the legislature intended to exercise its full constitutional power, limited only by the constraints of due process, over nonresidents being sued for nonsupport of their children.” Id.,

Section 46b-46 (

a) provides: “On a complaint for dissolution, annulment or legal separation, if the defendant resides out of or is absent from the state or the whereabouts of the defendant is unknown to the plaintiff, any judge or clerk of the supreme court or of the superior court may make such order of notice as he deems reasonable. After notice has been given and proved to the court, the court may hear the complaint if it finds that the defendant has actually received notice that the complaint is pending.” (Emphasis added.)

Section 46b-46 (

b) provides in part: “The court may exercise personal jurisdiction over the nonresident party as matters concerning temporary or permanent alimony or support of children, only if:

(1) The nonresident party has received actual notice under subsection (

a) of this

section . . . .” Subsection (a) “confers jurisdiction upon a court to deal with complaints for dissolution, annulment or legal separation when the defendant is a nonresident or his whereabouts are unknown”; Jones v. Jones, supra, 290-91; and “describes the procedures that are to be followed to give such a nonresident party actual notice of the pending proceedings, and authorizes the court to hear the complaint . . . .” Id., 291. Subsection (b), which incorporates the procedural rules of subsection (a), provides personal jurisdiction over nonresident defendants in domestic relations cases. Id., 290-92. Neither party disputes that the first sentence of § 46b-46 (

a) is permissive and merely gives a judge or clerk the option of issuing an order of notice. The second sentence is the source of dispute. The defendant claims that the language “[a]fter notice has been given and proved to the court, the court may hear the complaint if it finds that the defendant has actually received notice” makes an order of notice a necessary prerequisite to a finding of actual notice. He further contends that the personal jurisdiction requirements of subsection (

b) cannot be met unless an order of notice is issued pursuant to subsection (a). We disagree. This court has often held that “when the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.” (Internal quotation marks omitted.) Weinberg v. ARA Vending Co., 223 Conn. 336, 341, 612 A.2d 1203 (1992). In this case, the plain language of the statute does not support the defendant’s contention that an order of notice is mandatory. As noted above, the first sentence of § 46b-46 (

a) gives a judge or clerk the option of making an order of notice. The second sentence does not say “after an order of notice”; rather, it provides that after notice has been served and proved to the court, the court must determine whether the defendant had actual notice of the complaint. The phrase “[ajfter notice has been given and proved to the court,” is subordinate to the remainder of the sentence which focuses on the essential determination of whether the defendant has received actual notice of the proceedings.

The plain language of the statute supports our conclusion that an order of notice is a permissive means of achieving the goal of actual notice to a defendant. Our reading of the statute is consistent with our holding in Smith v. Smith, 150 Conn. 15, 183 A.2d 848 (1962). In Smith, this court held that the trial court had jurisdiction to render a decree of separation and in personam jurisdiction to order a money judgment for alimony pendente lite following abode service on a defendant who resided in Connecticut but was absent from the state when the service was made.

We examined the language of General Statutes § 46-17, now codified in § 46b-46 (a), which pertains not only to service of defendants who reside out of state, but also to service of defendants who are absent from the state, and concluded that an order of notice under the statute was permissive and not mandatory. “Section 46-17, by its express terms, is permissive and not mandatory. An order of notice is merely authorized.

Whether an order of notice should be sought or, if sought, should be granted and, if granted, what form it should take depend on the particular factual situation as it bears on the question of notice to a defendant, where the question of notice is important. If service in personam is achieved . . . there is ordinarily no occasion for an order of notice.” (Emphasis added.) Smith v. Smith, supra, 21. In short, subsection (

a) provides one method, but not the only method, of providing notice to a defendant. The purpose of subsection (

a) is not to ensure absolute adherence to its procedural suggestions, but to provide a plaintiff with “a method of making certain that the constitutional requirements of due process have been satisfied, where these involve notice of the proceedings and an opportunity to defend.” Id., 22. We note, additionally, the narrow construction advanced by the defendant would serve no practical function. The purpose of an order of notice is to ensure that the defendant actually receives notice. See 1 W. Moller & W.

Horton, Connecticut Practice Book Annotated (3d Ed. 1989) § 199, comment. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950). In this case, the defendant received in-hand service of process.

We have often held that in-hand service of process is the “best and highest type of service” and should be used whenever possible. Smith v. Smith, supra, 22-23. An order of notice could have done nothing more to ensure that the defendant actually received notice. Accordingly, it would ignore the very purpose of the statute to construe § 46b-46 so strictly as to make an order of notice a condition precedent to the form of service most likely to result in actual notice to the defendant.

Furthermore, the defendant advances no policy reason for mandating an order of notice other than that it allows the Superior Court to maintain control over these procedures. This control is effectively exercised under § 46b-46, which requires that notice be “proved to the court” and that the court find that the defendant has “actually received notice” before the trial court hears the plaintiff on the merits of the case.

We conclude that in a case such as this, where service of process can be accomplished by the most reliable means—that is, in-hand service of process by a process server in accordance with § 52-57a—an order of notice is not required pursuant to § 46b-46. Accordingly, the service of process issued to the defendant in this case was sufficient to provide the court with jurisdiction over the complaint and the defendant. The judgment is affirmed. In this opinion Peters, C. J., and Katz, J., concurred. General Statutes (Rev. to 1989) § 46b-46 provides: “(

a) On a complaint for dissolution, annulment or legal separation, if the defendant resides out of or is absent from the state or the whereabouts of the defendant is unknown to the plaintiff, any judge or clerk of the supreme court or of the superior court may make such order of notice as he deems reasonable. After notice has been given and proved to the court, the court may hear the complaint if it finds that the defendant has actually received notice that the complaint is pending.

If it does not appear that the defendant has had such notice, the court may hear the case, or, if it sees cause, order such further notice to be given as it deems reasonable and continue the complaint until the order is complied with. “(

b) The court may exercise personal jurisdiction over the nonresident party as matters concerning temporary or permanent alimony or support of children, only if:

(1) The nonresident party has received actual notice under subsection (

a) of this section; and (2) the party requesting alimony or support of children meets the residency requirement of

section 46b-44; and (3) this state was the domicile of both parties immediately prior to or at the time of their separation.” After the trial court decided this case, § 46b-46 was amended by No. 91-391, § 3 of the 1991 Public Acts. The amendment is not relevant to the issue in this case. Although the defendant in this case appeared specially, a defendant may contest jurisdiction “even after having entered a general appearance . . . by filing a motion to dismiss within thirty days of the filing of an appearance.” Practice Book § 142.

The motions to dismiss were entitled “Motion to Dismiss for Insufficiency of Process and Insufficiency of Service of Process,” and “Motion to Dismiss for Lack of Personal Jurisdiction over Defendant.” Of course, in-hand service of process is authorized as a means of service for persons in this state. General Statutes § 52-57 (

a) provides in relevant part: “[P]rocess in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state.” The defendant concedes that the requirements of General Statutes § 46b-46 (b) (2) and (3) were satisfied in this case. These subdivisions require that the party requesting alimony or support of children meet the residency requirement of General Statutes § 46b-44 and that both parties were domiciled in this state immediately prior to or at the time of their separation. Although the statutory

section has been renumbered, its language remains substantively similar. General Statutes (1958 Rev.) § 46-17 provided in part: “On a complaint for divorce when the adverse party resides out of or is absent from the state or the whereabouts of the adverse party is unknown to the plaintiff, any judge or clerk of the supreme court . . . or of the superior court . . . may make such order of notice as he deems reasonable.

Such notice having been given and proved to the court, such court may hear such complaint if it finds that the defendant has actually received notice that the complaint is pending, and, if it does not appear that the defendant has had such notice, the court may hear such case, or, if it sees cause, order such further notice to be given as it deems reasonable and continue the complaint until the order is complied with.” The dissent’s attempt to distinguish our holding in Smith v. Smith, 150 Conn. 15, 183 A.2d 848 (1962), on the ground that the defendant in Smith was domiciled in Connecticut eludes us.

General Statutes (1958 Rev.) § 46-17, now codified at General Statutes § 46b-46, which formed the basis for our decision in Smith, specifically states that it applies equally to persons who reside out of state and to persons who are absent from the state. Accordingly, it does not make sense to find that the statute mandates an order of notice for out-of-state residents but does not mandate an order of notice for persons domiciled in Connecticut, but absent from the state. The statute requires the same procedures for both groups.

An additional means of control is provided by General Statutes § 52-87, which requires a three month continuance following a nonresident defendant’s failure to appear, and authorizes a judge to direct further notice to the nonappearing party. The defendant argues that Bank Mart v. Langley, 39 Conn. Sup. 198, 474 A.2d 491 (1984), makes an order of notice a prerequisite to personal service made under General Statutes § 52-57a. The defendant misreads Bank Mart, which focused on the sufficiency of service by newspaper publication.

Bank Mart held that notice by newspaper publication should be used only as a last resort and stated that “if notice by publication is to be utilized, the plaintiff must clearly and in detail set forth in affidavit form all the steps taken to determine whether notice by some other form could be given so that the court may make an independent determination of the adequacy of notice.” (Emphasis added.) Id., 201-202.