Opinion
No. FA92-0043326
October 29, 2004
MEMORANDUM OF DECISION
This is an appeal pursuant to General Statutes § 46b-231(n) brought to this court by the petitioner, commissioner of social services from the oral decision of the family support magistrate rendered June 24, 2004, granting the respondent's motion to reopen judgment and motion for genetic testing.
For the reasons set forth herein, the appeal is dismissed.
A review of the record indicates the following relevant facts.
On January 8, 1992, the department of human resources filed an agreement to support an acknowledgment of paternity alleging that the respondent, Alfred Mercure, was the acknowledged father of the minor child, BMM (date of birth August 2, 1991) based on an affidavit of parentage. Attached was an unsworn, witnessed form signed by mother and the respondent stating, in part, that the respondent was the birth father of BMM.
On October 22, 1999, the petitioner, commissioner of social services, filed a support petition dated September 20, 1999 on behalf of BMM, which petition asserted that the respondent was the acknowledged father of BMM.
On December 2, 1999, Chief Magistrate Katherine Hutchinson entered orders of support against the respondent by default, after finding him the father.
On October 11, 2001, for unknown reasons, a guardian ad litem was appointed for the respondent. On November 1, 2001, the guardian ad litem, on behalf of the respondent, filed motions for genetic testing and a motion to open the default judgment of December 2, 1999, seeking, in part, genetic testing.
For inexplicable reasons, these motions went unheard and undecided until June 24, 2004, on which date they were granted by Chief Magistrate Hutchinson, who stated that the December 21, 1999 orders were entered based on the mistaken belief that the file contained a sworn acknowledgment of paternity by Mr. Mercure. The magistrate found this belief to be mistaken and opened the judgment and ordered testing to determine the paternity issues between the respondent, BMM, and the petitioner, basing her decision on the mistake of fact as well as the child's independent right to know the child's biological parents.
This decision was appealed by the petitioner on June 25, 2004 and argued before this court on September 27, 2004.
General Statutes § 52-212a provides a mechanism by which a judgment may be opened and require the filing of a motion to open within four months following the date of the judgment. Clearly, the motions filed on behalf of the respondent was almost two years after the judgment. However, the court may open a judgment based on an untimely motion in accordance with common-law principles. "It is a well established general rule that even a judgment rendered by the court . . . can subsequently be opened [after the four month limitation] . . . if it is shown that the judgment, was obtained . . . because of mutual mistake." (Internal quotation marks omitted; internal citation omitted), In re Jonathan M., 255 Conn. 208, 238 (2001).
In this case, the magistrate specifically stated that after listening to the tape of the December 2, 1999 proceedings, the judgment of paternity entered on the mistaken belief that the respondent had acknowledged his paternity, when in fact he did not.
The magistrate had the power, based upon this mistake of vital fact, to open the judgment.
Having opened the judgment, the order of the genetic testing was appropriate. The child has a right to know her father, not by allegation, but by verification.
General Statutes § 46b-171(6)(b) sets forth a protocol for reimbursement of previously adjudicated fathers found not to be fathers. Clearly, the state contemplates and desires accurate findings of paternity and the magistrate's decision advances the parties one major step further along the path to an accurate determination of BMM's paternity.
Accordingly, the petitioner's appeal is dismissed.
Driscoll, J.