Opinion
No. FA 93-0347096S
September 13, 2005
MEMORANDUM OF DECISION ON RETROACTIVITY OF MODIFICATION OF CHILD SUPPORT
The parties appeared through counsel at short calendar on September 1, 2005, and agreed to modification of the existing child support order because one of the parties' minor children had turned 18 and graduated from high school on May 21, 2005. The court approved their agreement and made it an order of the court. The parties reserved for judicial decision, however, one issue on which they could not agree: whether modification should be effective on June 17, 2005, the date on which Marshall Gagnon received a US Postal Service return receipt notice showing that the applicant had received the motion for modification, or July 7, 2005, the Order to Show Cause Date. Resolution of that issue will determine the amount of a child support arrearage owed by the defendant.
Section 46b-86(a) of the General Statutes provides that
No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50.
Section 52-50 of the General Statutes is the statute that authorizes those persons eligible to serve process and to whom process shall be directed. Sub-section (a) of that statutes provides that
All process shall be directed to a state marshal, a constable or other proper officer authorized by statute, or, subject to the provisions of subsection (b) of this section, to an indifferent person. A direction on the process "to any proper officer" shall be sufficient to direct the process to a state marshal, constable or other proper officer.
Section 52-57a authorizes service on out-of-state persons subject to the jurisdiction of Connecticut courts in the manner permitted by the state in which that party resides.
On May 19, 2005, the defendant issued a summons directed to "any proper officer" to serve a copy of the application, motion and order for hearing on the plaintiff "whose address is 1107 Manigan Avenue, Oviedo, Florida" in the manner prescribed by law for service of Civil Process . . . and make due return to the Court." The Marshal's Return in the court file shows that a Connecticut State Marshal effected service by mailing the process to applicant; that she received the process on June 14, 2005, and that the marshal received the return receipt card on June 17, 2005. Although Florida statutes permit service of process on individuals only in limited circumstances; Florida Statutes, § 48.031(6), Florida law also allows parties to waive the requirement of in-hand service. Anthony v. Gary J. Rotella Associates, 4D04-4245 (Fla.App. 4 Dist. 2005) (stating that "a defending party can agree to accept service of process by mail"), citing Barker v. Greenstreet Financial, 823 So.2d 195 (Fla. 3rd DCA 2002). The plaintiff has raised no challenge to the court's jurisdiction over her or to the service of process and the court thus finds she has waived any requirement of in-hand service, as permitted under Florida law.
Section 48.031(6) of the Florida Statutes provides as follows: "If the only address for a person to be served, which is discoverable through public records, is a private mailbox, substitute service may be made by leaving a copy of the process with the person in charge of the private mailbox, but only if the process server determines that the person to be served maintains a mailbox at that location."
Under these circumstances, the court concludes that the modification should be retroactive to June 14, 2005, the date on which plaintiff received the process.
The parties have stipulated that the defendant's arrearage was $29,261 as of June 17, 2005, and the court finds that this amount is the arrearage owed by defendant.
SO ORDERED.
BY THE COURT
STEPHEN F. FRAZZINI
JUDGE OF THE SUPERIOR COURT