DocketNumber: No. FA 97-0624195S
Citation Numbers: 2002 Conn. Super. Ct. 16613-a
Judges: WIHBEY, FAMILY SUPPORT MAGISTRATE.
Filed Date: 12/29/2002
Status: Non-Precedential
Modified Date: 7/5/2016
HELD: Service of the paternity petition was properly made on the Defendant at his usual place of abode. However, notice of the default judgment was not properly made and the Motion to Open Judgment of paternity and support orders, is timely. The Defendant has raised a meritorious defense, i.e. that he may not be the father of the minor child, he has satisfied the conditions precedent to open a judgment. His Motion to Open is GRANTED.
A hearing on the underlying paternity petition is to be scheduled by the clerk, with notice to all parties. The Defendant may appear and raise defenses to the petition, and he may request genetic/D.N.A. testing. All support orders are suspended pending a final adjudication of paternity.
In the event that the Defendant is adjudicated to be the father, support orders may be modified based upon the Defendant's actual earnings or earning capacity, pursuant to General Statute §
Factual Background
Pursuant to Connecticut General Statute §
The Defendant did not receive notice of the default orders. The Court file indicates that the clerk's notification report, JD 72265, dated January 20, 1998, was not sent to the Defendant.1 On October 19,2002, four years and ten months after a default judgment entered, a Notice to Non-Appearing Obligor was sent to the Defendant. This notice was sent to the Defendant at 250 Fairfield Ave., Hartford, Ct. On October 31, 2002, an assistant attorney general filed a copy of the notice in the Court file. The "green card" receipt of the notice was clearly signed by someone other than the Defendant. The Defendant claims he was unaware of CT Page 16613-c any proceeding or adjudication of paternity until the wage withholding began, sometime in 2002.2
Motion to Open Default Judgment
Personal Jurisdiction: Service
Connecticut General Statute §
The Defendant now claims that when the paternity petition was served in October of 1997, he was not residing at 55 Sargeant Street, Hartford, Ct. The credible and substantial evidence supports the presumption of abode service pursuant to the sheriffs return of service. The Defendant testified that he lived at another address and/or may have been incarcerated at the time of the proceedings. However, he testified, in vague terms. He testified that he had stayed at this address, that he had maintained clothing at this address, and that some family and friends would telephone him at this address.
Judicial notice is taken of the Hartford Superior Court judicial file, captioned Deas/St. of Ct. v. Smiley, Docket No. 96-0620733. In Deas, et alv. Smiley, the Defendant appeared on June 11, 1996, identifying his home address as 55 Sargeant Street, 3rd Floor, Hartford, Ct. A judgment of paternity entered in this file in June 1996, and notice of said judgment was sent to the Defendant at 55 Sargeant Street on July 30, 1996. The Defendant did not, and does not, contest abode service in the Deas matter. Although service in the Deas matter occurred six months earlier, the Defendant did not demonstrate that he had a change in his primary residence when served with the paternity petition at issue.
Service of process in a civil action may be made at the place of a defendant's abode. General Statute §
This Court finds credible the Defendant's testimony that he may have resided at more than one location. However, his testimony is insufficient to rebut the overwhelming and credible testimony supporting valid abode service.
Any defect in the service, such as the assignment of the initial hearing more than 90 days after the issuance of the summons, does not affect the subject matter jurisdiction. Because the Defendant failed to object to this Court's exercise of personal jurisdiction within the prescribed time period, such defects have been waived. Brunswick v. InlandWetland Comm'n.,
Timeliness of Motion to Open
Because personal jurisdiction over the Defendant has been found, a determination of the timeliness of the Defendant's Motion to Open is necessary. The State adamantly opines that the motion is untimely because there is no requirement that notice be given when a default judgment enters in a paternity matter. Specifically, the State argues that the four-month time limitation for the filing of a motion to open begins to run from the date paternity judgment enters, regardless of when, or if notice of the judgment is given. The State provides no statutory authority or case law in support of its position.
The motion to open is governed by General Statute §
Practice Book §
Unless otherwise provide by law . . . any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding theCT Page 16613-e date on which notice was sent . . . (emphasis added) P.B. § 17-43
Practice Book §
A notice of every . . . judgment for failure to enter an appearance, which includes the terms of the judgment, shall be mailed within ten days of the entry of judgment by counsel of the prevailing party to the party against whom it is directed and a copy of such notice shall be sent to the clerk's office. Proof of service shall be in accordance with Section
10-14 . (emphasis added) P.B. § 17-22
Gen. Stat. §
[a]ny judgment rendered or decree passed upon a default or nonsuit in the superior court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket. . . . upon the. . . . showing of reasonable cause, or that a good cause of action or defense in whole or part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.
It is axiomatic that the party who is to exercise the right to open a judgment be given the opportunity to know that there is a judgment to open. Habura v. Kochanowicz,
The Connecticut Superior Courts have consistently held that the four-month time limitation to open a judgment begins to run from the date notice of the judgment was sent, pursuant to Practice Book §
Further, the Connecticut Appellate Court has held that, if a party has not received notice of a judgment, the four-month time limitation does not apply. Morelli v. Manpower, Inc.,
In this case, the computer-generated notice of judgment issued by the clerk's office was not sent to the Defendant. The documentation raises a rebuttable presumption that notice was not sent to the Defendant. Batoryv. Bajor,
Good Defense:
[I]n order to set aside a judgment passed upon default, a party seeking to set aside the judgment must satisfy a two prong test. Pantlin Chananie Development Corp. v. Hartford Cement Building SupplyCo.,
In the present case, the Defendant claims that he did not have notice of the underlying paternity petition. Although it is determined that proper abode service was made, it is credible that the Defendant was not aware of the proceedings. Id.,
As stated above, it appears that the Defendant had more than one residence at the time of service. He appeared in another paternity action commenced 6 months earlier. He did not/does not contest notice of the other paternity matter. It is clear that he did not receive notice of the default judgment or income withholding for almost 5 years. It is credible that he was unaware of the proceedings. The Defendant failed to appear because of the lack of actual notice of the proceeding. This is not an act of his own negligence, but as the result of his possible incarceration or his re-location. In either event, reasonable cause prevented him from appearing and defending.
The Defendant has raised a meritorious defense, i.e. that he may not be the father of the minor child. He did not execute an acknowledgment of paternity and was unaware that he was the alleged father of this child until the income withholding went into effect. He has satisfied the conditions precedent to open a judgment.
Conclusion:
Based upon the foregoing findings of fact and conclusions of law, the Defendant's Motion to Open is Granted. A hearing on the underlying paternity petition is to be scheduled by the clerk, with notice to all parties. The Defendant may appear and raise defenses to the petition, and he may request genetic/D.N.A. testing. All support orders are suspended pending a final adjudication of paternity. CT Page 16613-h
In the event that the Defendant is adjudicated to be the father, support orders may be modified based upon the Defendant's actual earnings or earning capacity, pursuant to General Statute §
___________________ Linda T. WIHBEY Family Support Magistrate