Opinion
No. FA 97-0345824
August 20, 2004
MEMORANDUM OF DECISION
This action was commenced by the defendant filing a Motion to Open a Judgment of Paternity and Support on December 15, 2003.
The defendant alleges that abode service effectuated by the Constable on or about July 27, 1997 was defective in that he did not reside at 33 Irving Avenue, in Stamford, CT.
On September 9, 1997 a paternity hearing was conducted. Defendant failed to appear. At the time of the hearing the court (Trombley, FSM) ordered that the information regarding defendant's address be updated and continued the matter until October 21, 1997.
Said update was conducted and it was determined that the defendant's mail was delivered to 33 Irving Avenue in Stamford, CT and that said address was his place of abode.
On October 21, 1997 the court entered a Default Judgment of Paternity and Support against the nonappearing defendant, for the care and support of Jacob May, Plaintiff's offspring.
On October 23, 1997 a notice to nonappearing obligor was prepared by the Attorney General's office and served at the defendant's abode by the Department of Social Services (Jeffrey Bogue) Investigator.
On December 12, 2003 the defendant filed his "Motion to Open Judgment of Paternity and Support" alleging that ( inter alia) (1) service was defective in that he did not reside in Stamford, CT at the time of service. (2) That the military affidavit was defective in that he had not received said "Notice to the nonappearing Obligor." (3) That he had no knowledge that a paternity action had commenced against him or that a judgment of paternity and support order had entered. Defendant also avers that he does not believe that he is the father of the minor child (Jacob May d.o.b. 09/08/96) and that he does not know nor has he ever laid eyes on the plaintiff. On January 21, 2004 the matter was brought before this court. At the very commencement of defendant's testimony, he stated that he does not know who Jacob May is. (T.T. Pg. 18 Lines 24 25.)
Defendant testified that he never resided at 33 Irving Avenue in Stamford, that it is his sister's address (T.T. Pg. 21 Lines 8 to 15.) The Defendant did acknowledge that "I stayed there, but not on a permanent basis." He further stated that he used the address as a driver's license address (T.T. Pg 22 Line 1). He further acknowledged that he had a driver's license in CT in 1997 and that it was changed over in February of 1998 (T.T. Pg 23 Lines 26 and 27.) The defendant failed to change his Stamford postal address and states that he had no important mail therefore he neglected to make any changes. He further testified that his sister (Patricia Price) resides at 33 Irving Avenue and continues to reside there. The defendant acknowledged that he was in contact with his sister but that she never informed him of any mail deliveries.
On cross examination by the state the defendant stated that he did not know nor has he ever seen the Plaintiff. (T.T. Pg. 36 Lines 4-11.) Defendant further alleges that he has no recollection of ever cohabiting with the Plaintiff or for that matter "never laid eyes on her." (T.T. Pg. 38 Lines 11-16.) Defendant further testified that in 1996 he worked at Connecticut Limo in Milford, CT and AMS in New Haven, CT. In each instance defendant gave his employers 33 Irving Avenue, Stamford as his address. (T.T. Pg. 40 Line 11.)
Subsequently a number of witnesses appeared on behalf of the plaintiff. Initially, there was Mr. Jeffrey Maddox, a nephew of the plaintiff who testified that he met the defendant in 1994/1995 at a family "get together" at his mother's home "or we would go over to their house." (T.T. Pg. 6 Lines 2-25.) The witness further stated that the defendant lived with her." (T.T. Pg. 7 Lines 11-12.) The witness went on to state that the defendant was well known to all the members of the Plaintiff's family, who, by his description were a close-knit group. (See T.T. Pgs. 14, 15 16.) During said testimony Exhibits A, B C (photos) were offered into evidence. All of said photos prominently show the defendant with the plaintiff (Exhibits A B) (Ex. C) with members of the plaintiff's family. It is interesting to note that for someone the defendant has never "laid eyes on" he appears to be most affectionate. See (Ex A).
Next, we had Lori Pickett, the plaintiff's niece through marriage. She has known the plaintiff since 1984. The witness stated that the defendant lived with plaintiff and that she had visited with them at their residence. She also stated that it was her belief that they resided together "Probably like a year and half or two." (T.T. Pg. 23 L-12). She further stated that plaintiff became pregnant during that period and that her recollection was based on the fact that the witness and the plaintiff became pregnant around the same time. (T.T. Pg. 23 L-25.) Witness recalls that the defendant conducted himself in a manner that suggested that he was Jacobs father, although he did not actually state he was.
The witness further recalled that the defendant and plaintiff conducted themselves as a family up to some three (3) months subsequent to Jacob's birth at which time the defendant absented himself.
The plaintiff's testimony reveals a close relationship with the defendant that commenced in 1995, approximately one year prior to Jacob's birth, when the parties resided with each other until defendant's departure.
DISCUSSION
It is quite clear to this court that Magistrate Trombley and the Department of Social Services made every effort to properly determine the whereabouts of the defendant as it related to service. It is also quite apparent to this court that throughout the defendant has been less than forthright. It is found that valid service was made in conformity with the mandate of Sec(s). 10-12, 10-13, and 10-14 of the Conn. Practice Book.
His challenge to the issue of service fails in every respect. He constantly used said address with all and sundry (driver's license, employers etc). By his own admission, he resided with his sister at 33 Irving Avenue.
"Abode is the place where the defendant would most likely have knowledge of service of process and is generally recognized as the place where the defendant is living at the time of service." ( Grayson v. Wofsey, Rosen, Kweskin and Kuriansky, 40 Conn. Sup. 13 (1984).)
The most significant issue in this entire matter is one of "credibility" the defendant professes not to know plaintiff. Did not and does not know Jacob May. Never had a place of abode in Stamford. In fact, he would have us believe that this whole matter just does not exist and that it is all a figment of the Plaintiff's fertile imagination. Unfortunately, for defendant, he cannot refute the existence of Jacob May and his responsibility for the care and support of the child.
This court finds the defendant's motion totally baseless and devoid of any credibility. There has not been one scintilla of evidence offered by the defendant that could be construed as believable.
In Hammick v. Hammick, 71 Conn.App. 680, 803 A.2d 373 (2002), the court wrote "Simply put we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of the witnesses." Citing Mongillo v. Mongillo, 69 Conn.App. 472, 476, 794 A.2d 1054 (2002). See also 1 B. Holden and J. Daly, CT Evidence (2nd Ed. 1988) Sec. 35 pp. 154, 161.
"Evidence is not insufficient . . . because it is conflicting or inconsistent. [The fact finder] is free to juxtapose conflicting versions of events and determine which is more credible. It is the [fact finder's] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. The fact finder can . . . decide what — all, none or some of the witnesses' testimony to accept or reject." (Internal quotation marks omitted.) State v. Gauthier, 73 Conn.App. 781, 787, 809 A.2d 1132 (2002).
This court finds the defendant's allegations to be baseless and without merit. It is found that the defendant had both actual and constructive notice of the pendency of the action and most certainly failed to demonstrate any form of valid defense.
For the reasons stated the defendant's motion is denied.
Edmund H. Miller, FSM