Opinion
No. TTDFA900046383
March 24, 2005
MEMORANDUM OF DECISION
The State of Connecticut has moved to modify a $10 per week child support order in this matter dating from 1991. The defendant does not oppose modification but claims qualified child deductions for two other minor children. The plaintiff mother did not attend court for the hearing.
The court recognizes that since the plaintiff mother did not present herself before the court for the hearing, it had no obligation to go forward on the motion for upward modification. Although the State of Connecticut filed the motion, the child is not receiving Temporary Family Assistance (TFA). However, the court also recognizes that the existing order is extraordinarily low and has been in place for a long time. Furthermore, the defendant did not object to an increase in his order, but contested the matter as to consideration for his other children. Under such circumstances this court holds there is abundant authority for the court to allow the State to proceed in the absence of the custodial parent.
Numerous Connecticut cases speak to the independent right of children to appropriate child support. In re Bruce R., 234 Conn. 194, 662 A.2d 107 (1995); Masters v. Masters, 201 Conn. 50, 67-68, 513 A.2d 104 (1986) (review of child support awards); Guille v. Guille, 196 Conn. 260, 266, 492 A.2d 175 (1985) (parent cannot, without court approval, contract away obligation of support for minor children); Burke v. Burke, 137 Conn. 74, 79, 75 A.2d 42 (1950) (common law prohibited parents from contractually restricting or defeating their children's right to support). Although the child's interest can best be protected by appointment of a guardian ad litem and/or attorney for the minor child, in this instance the issues are uncomplicated and the State is not in conflict with the child's interests. Therefore, the court elected to spare the State or parties the additional costs and allowed the State itself to pursue the modification.
Additionally, as our Supreme Court has recently noted, courts have powers that "arise out of an appreciation of the state's long recognized interests as parens patriae." Roth v. Weston, 259 Conn. 202, 225, 789 A.2d 431 (2002). Put another way, courts may "take cognizance of the special opportunity given to the court by the General Assembly to exercise its parens patriae responsibility to make orders in the best interest of a child while a case is pending. [General Statutes] § 46b-56 states, in part, that, `In any controversy before the superior court as to the custody or care of minor children, and at any time after the return day of any complaint under § 46b-45, the court may at any time make or modify any proper order regarding the education and support of the children and of care, custody and visitation if it has jurisdiction under the provisions of chapter 815o.'" McGraw v. Savluck, 15 Conn. L. Rptr. 599, 1996 Ct.Sup. 351 (Bishop, J., 1996). See Taff v. Bettcher, 35 Conn.App. 421, 427, 646 A.2d 875 (1994). See also Yontef v. Yontef, 135 Conn. 275, 293, 440 A.2d 899 (1981); Reno v. Flores, 507 U.S. 292, 303-04, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Santosky v. Kramer, 455 U.S. 745, 766, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Parham v. J.R., 442 U.S. 584, 605, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944).
The subject child, Alexandra Mae Cherry was born at Hartford on June 23, 1990 to the plaintiff mother. The State filed a paternity action against the defendant, resulting in a paternity judgment adjudicating him to be Alexandra's father. After numerous delays, the court, Sullivan, F.S.M., entered an order requiring the defendant to pay $10.00 per week child support.
The paternity petition was dated November 26, 1990. The initial court date was February 19, 1991. Paternity was established on July 20, 1991. A temporary $10 per week ordered was entered on October 8, 1991. The support order was not finalized until June 22, 1993. There were a total of eighteen court dates. A number of continuances were granted to allow the defendant to obtain employment. Apparently the court ultimately settled for a representation that the defendant was attending school, hence the unusually low order.
No financial affidavits were filed at the time the child support order entered. The closest in point of time, in October 1993 discloses income of $80 per week for the defendant. Now the defendant reports employment at Cingular Wireless earning $339.21 per week gross and $290.00 net. There is a substantial change of circumstances and accordingly the motion to modify is granted.
The defendant father claims consideration for support obligations for two additional minor children. He has one child issue of his present marriage. He is entitled to a qualified child deduction for that child. Regs., Conn. State Agencies, § 46b-215a-2a(e)(1)(A).
The defendant claims he is the father of another child residing with him, Chelsea, born in 1994. The defendant was never married to Chelsea's mother. In order to prove parentage of Chelsea, the defendant submitted a certified copy of a Statement of Parentage signed by him and the mother two days after birth. The signatures are witnessed but not under oath.
The Department of Health promulgated the Statement of Parentage form. The purpose of the form is stated on its face: "This form is used to place the father's name on the birth certificate of a child born out of wedlock." The form does not provide for the mother or father to acknowledge under oath, nor does it provide an advisement of rights to either parent. This form does not satisfy the requirements of the acknowledgment statute, General Statutes § 46b-172. It is not sufficient to legally establish paternity. Smith v. Smith, 40 Conn.Sup. 151, 155, 483 A.2d 629 (1984); Commissioner of Social Services v. Mercure, Superior Court, judicial district of Windham at Putnam, doc. no. FA92-0043326, 2004 Ct.Sup. 16009 (Oct. 29, 2004, Driscoll, J.); Hjarne v. Martin, 16 S.M.D. 2002 Ct.Sup. 5521-aa, 5521-ae (2002); contra, State v. Wolfe, 156 Conn. 199, 239 A.2d 509 (1968) (unsworn but written acknowledgment of paternity coupled with contract to support the child is sufficient to support a judgment enforcing the terms of the agreement); Donoghue v. McCormick, Superior Court, judicial district of New Haven at New Haven, doc. no. FA98-0410533, 2000 Ct.Sup. 16072 (Dec. 15, 2000, Alander, J.) Therefore, it is insufficient to authenticate the defendant's claim for a qualified child deduction for Chelsea.
The age of computers and the internet allows immediate access to information that would otherwise be difficult and time-consuming to discover. The courtroom clerk was able to access the judicial information system through her in-court computer during the course of the hearing. She was able to confirm that a file existed in the Hartford Judicial District involving the defendant and Lynae Jones, who is Chelsea's mother, although she was unable to produce the contents of the file. Whereupon, the court took the papers.
Within days, the court was able to access the Hartford file and personally review it. The court now takes judicial notice of the contents of the file entitled Lynae Jones v. Andre Irving, doc. no. HHDFA990629122, judicial district of Hartford. The contents include a fully executed, sworn acknowledgment of paternity for Chelsea on form VS56 which includes the full advisement of rights and waiver required under General Statutes § 46b-172. Thus the defendant is legally Chelsea's father, hence he is entitled to qualified child deductions for two children.
The support enforcement officer prepared alternative child support guidelines worksheet with and without the qualified child deductions. The defendant's gross income is $330 per week. Applying the qualified child deductions on line 9 of the worksheet and other allowable deductions reduces his net income on line 11 to $207.00. The guidelines computation is found to be substantially correct. The presumptive current support order is $46.00 per week. The court finds no reason to deviate.
Accordingly, the defendant is ordered to pay $46.00 per week current support for Alexandra. The order is effective April 1, 2005. The existing $2.00 per week arrearage order remains without modification. As required by General Statutes §§ 46b-231(r) and 52-362, immediate income withholding is ordered. Existing orders medical and dental insurance coverage and coverage of uninsured or unreimbursed medical and dental costs pursuant to Regs., Conn. State Agencies, § 46b-215a-2a(g)(1) and (g)(3) as well as all other ancillary orders remain in effect as previously ordered.
This order was entered November 30, 1993 and was never modified.
The clerk's notes of the judgment of October 10, 1992 indicate that income withholding was ordered that day by the court, Ginsberg, F.S.M. The defendant also submitted a signed advisement of rights regarding wage withholding.
The judgment of October 10, 1992 includes an order to obtain insurance at reasonable cost and a 50/50 split of unreimbursed costs.
BY THE COURT
Harris T. Lifshitz Family Support Magistrate