Haigh v. Haigh

Page 837

717 A.2d 837

50 Conn.App. 456

Charles HAIGH, Jr. v. Victoria HAIGH.

No. 17378.

Appellate Court of Connecticut.

Argued March 30, 1998.

Decided Sept. 22, 1998.

Nancy E. Wildes, Pawcatuck, for appellant (plaintiff).

Susan M. Connolly, Niantic, for appellee (defendant).

Before LANDAU, SPEAR and HEALEY, JJ.

HEALEY, Judge.

The plaintiff, Charles Haigh, Jr., appeals from the trial court's judgment dismissing his appeal from a Probate Court decree terminating his parental rights in his minor son. On appeal, the plaintiff claims that the trial court improperly dismissed the appeal on the grounds of (1) insufficient process because the appeal from probate was made returnable to the Superior Court on Monday, July 1, 1996, instead of on a Tuesday in violation of General Statutes § 52-48, and (2) improper venue because, although the appeal was actually returned to the Superior Court in the judicial district of New London, certain appeal documents with which the defendant, Victoria Haigh, was "served" directed her to appear at the Superior Court, Juvenile Matters at Montville.

On April 30, 1996, the Probate Court for the district of New London issued a decree terminating the plaintiff's parental rights in his son. On May 29, 1996, the plaintiff moved the Probate Court for permission to appeal that decree and that court granted its approval to do so. Thereafter, the plaintiff's appeal, which bore the return date of July 1, 1996, was served on the defendant, the plaintiff's former wife and mother of the child, and returned to the Superior Court in the judicial district of New London at New London. ¹ On July 1, 1996, which was a Monday, the defendant appeared in person in the Superior Court for Juvenile Matters at Montville because the plaintiff's appeal indicated that it was to be heard in Montville. ² The court at Montville, Driscoll, J., dismissed the plaintiff's appeal on that day for the plaintiff's failure to appear. Upon learning of the dismissal, the plaintiff filed a motion on July 12, 1996, to vacate the dismissal of July 1, 1996. In October, 1996, after a hearing, the Juvenile Court vacated the dismissal.

On November 4, 1996, the defendant filed her appearance in the Superior Court in the judicial district of New London. On January 21, 1997, the defendant moved that court to dismiss the plaintiff's appeal "on the grounds that defective process renders this court without jurisdiction over the subject matter of the action." ³ On February 10 1997, the court, Hurley, J., granted the motion to dismiss. During the hearing on that motion, the plaintiff requested that the court consider his motion to amend the return date, and the court declined to decide that motion and recommended it be claimed for a hearing at a later date. On February 14, 1997, the plaintiff filed his "Motion to Open Dismissal [and] Motion to Waive Fees." ⁴ On May 5, 1997, the court, denied that motion. This appeal followed.

Before we address the issues articulated by the plaintiff, we must confront the issue of subject matter jurisdiction raised by the defendant in her brief. She claims that the issue on appeal is "whether subject matter jurisdiction is a waivable defect" pursuant to Practice Book §§ 142 through 144, now §§ 10-30 through 10-32. ⁵

"[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ... and the court must fully resolve it before proceeding further with the case...." Community Collaborative of Bridgeport Inc. v. Ganim, 241 Conn. 546, 552, 698 A.2d 245 (1997), quoting Golden Hill Paugussett Tribe of Indians v. Southbury, 231 Conn. 563, 570, 651 A.2d 1246 (1995); accord Kinney v. State, 213 Conn. 54, 58, 566 A.2d 670 (1989); Pantlin & Chananie Development Corp. v. Hartford Cement & Building Supply Co., 188 Conn. 253, 258, 449 A.2d 162 (1982); Savoy Laundry, Inc. v. Stratford, 32 Conn.App. 636, 639, 630 A.2d 159, cert. denied, 227 Conn. 931, 632 A.2d 704 (1993); Vincenzo v. Warden, 26 Conn.App. 132, 135, 599 A.2d 31 (1991). "Subject matter jurisdiction, unlike jurisdiction of the person, cannot be created through consent or waiver." Castro v. Viera, 207 Conn. 420, 429-30, 541 A.2d 1216 (1988), and cases cited therein. Jurisdiction over the subject matter is the court's power to hear and decide cases of the general class to which the proceedings at issue belong. See Lauer v. Zoning Commission, 220 Conn. 455, 460, 600 A.2d 310 (1991); Shea v. First Federal Savings & Loan Assn. of New Haven, 184 Conn. 285, 288, 439 A.2d 997 (1981). "Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged." Demar v. Open Space & Conservation Commission, 211 Conn. 416, 425, 559 A.2d 1103 (1989).

In making her claim that the trial court properly granted her motion to dismiss, the defendant argues that the "combination of [the] two defects," the improper return date and improper venue, "are fatal to the plaintiff in sustaining his appeal" and deprive the court of subject matter jurisdiction. In that regard, she refers to the provision in § 52-48 that "[p]rocess in civil actions ... brought to the Superior Court may be made returnable on any Tuesday in any month" and "shall designate the place where court is to be held." ⁶ The defendant argues that the return day of July 1, 1996, which was a Monday, was a fatal defect. ⁷ She claims that it is well settled that an improper return date "affects" the court's jurisdiction over the subject matter. The defendant maintains that until a proper return is made to the court, the court is unable to consider the matter since there is nothing before the court to consider. For this proposition she cites Danziger v. Shaknaitis, 33 Conn.App. 6, 11-12, 632 A.2d 1130, rev'd, 228 Conn. 914, 636 A.2d 846 (1993). The defendant contends that the plaintiff should not prevail on his argument that her motion to dismiss was untimely because subject matter jurisdiction is not waivable and can be raised at any time.

The defendant also claims that the court "similarly lacked jurisdiction" because the process directed her to Montville. She maintains that the incorrect Montville reference violates "fundamental notions of fairness and due process," which demand at least that she be informed of the geographical location of the court to which the papers have been returned. She claims that this is also a fatal defect implicating the court's subject matter jurisdiction and, therefore, the case was properly dismissed.

In response, the plaintiff claims that the defendant improperly relies on Danziger v. Shaknaitis, supra, 33 Conn.App. at 12, 632 A.2d 1130, ⁸ to change the issue on appeal to a question of subject matter jurisdiction. The plaintiff stresses that he is not making any argument that the defendant ever waived subject matter jurisdiction as he recognizes that it cannot be waived. Rather, what he does claim is that an improper return date is not a subject matter jurisdiction defect. The plaintiff in effect maintains that the incorrect Monday return date is an "insufficiency of process" defect that is curable and that the procedure provided by § 52-72 ⁹ supports his position. In explicating his claim, the plaintiff relies heavily on Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 621-22, 642 A.2d 1186 (1994). The plaintiff contends that the trial court should have granted his motion to amend the return date and that doing so would not have prejudiced the defendant. With regard to the Montville reference, the plaintiff claims that the defendant by untimely filing her motion to dismiss, waived her claims of defects of insufficiency of process, including venue pursuant to Practice Book § 10-32.

We first take up the claimed lack of subject matter jurisdiction because of the incorrect return date. "Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure. Greco v. Keenan, 115 Conn. 704, 705, 161 A. 100 [1932]." Johnson v. Zoning Board of Appeals, 166 Conn. 102, 111, 347 A.2d 53 (1974); see Andover Limited Partnership I v. Board of Tax Review, 232 Conn. 392, 400, 655 A.2d 759 (1995) (claim of lack of subject matter jurisdiction). "A trial court should make every effort to adjudicate the substantive controversy before it, and, where practicable, should decide a procedural issue so as not to preclude hearing the merits of an appeal." Killingly v. Connecticut Siting Council, 220 Conn. 516, 522, 600 A.2d 752 (1991) (claim of lack of subject matter jurisdiction).

Section 52-72, as construed by our Supreme Court in Concept Associates, not only furthers this policy but illuminates our analysis in the present case. In Concept Associates, the Supreme Court not only said that "it appears that [§ 52-72] was enacted in response to decisions of this court holding that an improper return date was a jurisdictional defect that could not be corrected" but also pointed out that "[i]ndeed, this court has stated that the purpose of § 52-72 'is to provide for amendment of otherwise incurable defects that go to the court's jurisdiction.' Hartford National Bank & Trust Co. v. Tucker, 178 Conn. 472, 478-79, 423 A.2d 141 (1978[1979]), cert. denied, 445 U.S. 904, 100 S.Ct. 1079, 63 L.Ed.2d 319 (1980)." Concept Associates, Ltd. v. Board of Tax Review, supra, 229 Conn. at 623, 642 A.2d 1186; see Coppola v. Coppola, 243 Conn. 657, 663, 707 A.2d 281 (1998). It determined that "[t]he apparent intent of the legislature in enacting § 52-72 was to prevent the loss of jurisdiction merely because of a defect of return date." Concept Associates, Ltd. v. Board of Tax Review, supra, at 623, 642 A.2d 1186. That court also rejected the claim that § 52-72 applied only to amendments to correct a defective return date sought before the...