Eubanks v. Moss

Full title: VICKIE EUBANKS v. OLOF MOSS

Court: Connecticut Superior Court Judicial District of Fairfield, Family Support Magistrate Division at Bridgeport

Date published: Mar 9, 2010

2010 Ct. Sup. 9599 (Conn. Super. Ct. 2010)

Opinion

No. FBTFA880246900

March 9, 2010

MEMORANDUM OF DECISION

HARRIS T. LIFSHITZ, Family Support Magistrate.

The defendant, Olof Moss, by his counsel, has moved to open his acknowledgment of paternity of a child born to the plaintiff mother in 1988. This is the second hearing on this motion, the matter having been remanded from the Superior Court after the defendant's successful appeal. The defendant bases his claim on fraud, and subsequently filed an amendment to his motion claiming mistake. The motion is opposed by the State and the plaintiff mother. Although the child was afforded notice of the motion, she did not participate in these proceedings. For the reasons hereinafter articulated, the amended motion to open is denied.

I. ORIGINAL CASE

Marcia Moss was born on March 3, 1987 in Norwalk, Connecticut. Her mother is Vickie Eubanks, the named plaintiff. On January 22, 1988, the defendant Olof Moss executed an Acknowledgment of Paternity form under oath, voluntarily acknowledging himself to be Marcia's father. On the same form, the plaintiff mother signed under oath an affirmation of paternity naming Olof Moss as the father. This document, together with a form signed by the defendant entitled "Information about the Acknowledgment of Paternity" and a cover sheet were filed at the Superior Court in Bridgeport on January 28, 1988. The filing vested the acknowledgment document with the "same force and effect" as a paternity judgment rendered by the Court as provided by General Statutes § 46b-172 as phrased at the time.¹ The filed acknowledgment was assigned the captioned case name and docket number.

1 The full text of General Statutes § 46b-172 (the Acknowledgment of Paternity statute) on January 28, 1988, the date of the filing of the acknowledgment in this case, stated:

(a) In lieu of or in conclusion of proceedings under section 46b-160, the written acknowledgment of paternity executed by the putative father of the child when accompanied by a written affirmation of paternity executed and sworn to by the mother of the child and filed with the superior court, for the judicial district in which the mother of the child or the putative father resides shall have the same force and effect as a judgment of that court; and an agreement to support the child by payment of a weekly sum until the child attains the age of eighteen years, together with provisions for reimbursement for lying-in expense, accrued maintenance and reasonable expense of prosecution of the petition, when filed with, and approved by a judge of said court, or in IV-D support cases, a family support magistrate at any time, shall have the same force and effect, retroactively or prospectively in accordance with the terms of said agreement, as an order of support entered by that court, and shall be enforceable and subject to modification in the same manner as is provided by law for orders of the court in such cases. Payments under such agreement shall be made through the family relations office of the superior court. Such written affirmations, acknowledgments and agreements to support shall be sworn to, and shall be binding on the person executing the same whether he is an adult or a minor. Such mother shall not be excused from making such affirmation on the ground that it may tend to disgrace or incriminate her; nor shall she thereafter be prosecuted for any criminal act involved in the conception of the child as to whose paternity she makes affirmation.

(b) At any time after the filing with the court of any acknowledgment of paternity, upon the application of any interested party, the court or any judge thereof or any family support magistrate division in IV-D support cases shall cause a summons, signed by him or by the clerk or assistant clerk or assistant clerk of the family support magistrate division in IV-D support cases, of said court, to be issued, requiring the putative father to appear in court at a time and place named therein, to show cause, if any he has, why the court or the family support magistrate assigned to the judicial district in IV-D support cases should not enter judgment for support of the child by payment of a weekly sum until the child attains the age of eighteen years, together with provision for reimbursement for lying-in expense, accrued maintenance and reasonable expense of the action under this subsection on the acknowledgment of paternity previously filed with said court. The prior judgment as to paternity shall be res judicata as to that issue and shall not be reconsidered by the court, unless the person seeking review of the acknowledgment petitions the superior court for the judicial district having venue for a hearing on the issue of paternity within three years of such judgment or within three years of October 1, 1982, whichever is later. All such payments shall be made through the family relations office of the superior court.

On June 17, 1988, the State of Connecticut filed an application for a show cause order seeking a child support order and arrearage finding for past due support. According to the court record, the defendant appeared on August 10, 1988 and after a hearing, the court, Sullivan, F.S.M., ordered him to pay $70.00 per week in child support plus $10.00 per week on an arrearage found to be $5,219.82.

The defendant appealed the judgment. The sole issue appealed was the amount of the periodic order. He did not challenge the validity of the acknowledgment, paternity, or his obligation to pay child support. On October 7, 1988, the Superior Court, Thim, J., sustained the appeal, reversed the judgment of the Family Support Magistrate, and modified the current support order to $50.00 per week. That order was not subsequently modified and remained in effect until the support obligation terminated by operation of law.

In 1991, the State cited the defendant for contempt. The file gives no indication of the result of the citation. There was no further court activity until 2006 when the defendant father's present attorney filed an appearance and commenced the present complicated round of activity.

II. PRESENT MOTIONS AND PROCEDURAL ISSUES

On March 13, 2006, the defendant Olof Moss, by his counsel, filed a "Motion to Reopen² and Set Aside" the judgment created by the 1988 Acknowledgment of Paternity. In the motion, the defendant claims, inter alia, that he is not Marcia's biological father, and that the acknowledgment is affected by fraud or mutual mistake. In his claims for relief, he demands that the court set aside the paternity judgment and support orders, vacate any arrearages, release certain bank accounts that were seized, and "other remedies available in law or in equity."

2 Our Appellate Court has repeatedly admonished trial courts and counsel regarding the proper usage of the phrase "motion to open." "The parties, the family support magistrate and the Superior Court improperly used the designation `motion to reopen.' We note that because the decision had not been previously opened, the appropriate term is `motion to open,' and we use that designation throughout this opinion. See Rodriguez v. State, 76 Conn.App. 614, 617 n. 5, 820 A.2d 1097 (2003); Tutsky v. YMCA of Greenwich, 28 Conn.App. 536, 537 n. 1, 612 A.2d 1222 (1992)." Ragin v. Lee, 78 Conn.App. 848, 851 n. 2, 829 A.2d 93 (2003). See also Vance v. Tassmer, 115 Conn.App. 696, 698 n. 2, 975 A.2d 85 (2009), wherein the court stated: "We note that the defendants' motion was entitled a `motion to reopen the settlement agreement . . .' Because the agreement had not previously been opened, the use of that term is both improper and misleading. The appropriate phrase is `motion to open,' and we reference it in this opinion accordingly. See Rino Gnesi Co. v. Sbriglio, 83 Conn.App. 707, 709 n. 2, 850 A.2d 1118 (2004)." At the hearing, this court instructed counsel on the proper phraseology, and hereafter, in this decision, will reference the term "motion to open" regardless of the title of the pleading or the references of counsel.

The State responded with a motion to dismiss the motion to open, claiming want of subject matter jurisdiction. The defendant filed a notice of deposition which was countered by a motion for a protective order.

On June 12, 2006 the defendant filed a separate action against the plaintiff mother Vickie Eubanks and named the child Marcia Eubanks as a co-defendant.³ The action is in four counts, claiming fraud, "theft," negligence, and unjust enrichment. In his claim for relief, the defendant demands revocation of the acknowledgment of paternity, a judgment of non-paternity, money damages and punitive damages. The summons for that action was prepared on form JD-CV-1 entitled "Summons — Civil (Except Family Actions) and the substance of the complaint sounds as an action for money damages and a declaratory judgment. However, the defendant, under "case type" filled in the code F 90, which is a family, not civil action. Further, in paragraph 1 of the complaint, the defendant invoked the court's "general jurisdiction over family matters" referring to General Statutes § 46b-1. Thus started the procedural morass⁴ which has occupied most of the last four years.

3 Marcia Moss' name was changed to Marcia Eubanks by the Probate Court in 2000, which factors into this matter and will be discussed subsequently in the text. The 2006 lawsuit was assigned docket number FBTFA064016778 and bears the case name Olaf Moss v. Vickie Eubanks, et al. In that case, Mr. Moss is the plaintiff and Vickie Eubanks and Marcia Eubanks are defendants. Mr. Moss' first name is spelled O-l-a-f in the 2006 action, but is spelled O-l-o-f in the paternity case, and his signature on the acknowledgment is O-l-o-f. Counsel have largely followed the convention of following the original pleadings as to names, hence they have used both spellings depending on which case is the target.
The 2006 action is intertwined with the Motion to Open and will be discussed in part in this memorandum of decision. As will be seen, this action was eventually consolidated with the present case, and was remanded to this court for hearing. The hearing held before the undersigned addressed the consolidated matters. For clarity, however, this court will file a separate memorandum of decision to conclude the 2006 case. This court will hereafter refer to that matter as "the 2006 case" or "the damages case." For clarity, and by agreement of the parties, in this memorandum of decision, the court hereafter will always refer to Mr. Moss as "the defendant," Vickie Eubanks as the plaintiff, and Marcia Eubanks formerly known as Marcia Moss by name, or as "the child." The court will usually refer to the State of Connecticut, its Department of Social Services (including the predecessor departments), Support Enforcement Services (formerly Support Enforcement Division), and the Attorney General all as "the State" except where the context requires naming the specific agency.

4 This is exacerbated by the terrible physical condition of the file, probably by reason of age as much as any other reason. The "volume one" folder is itself falling apart. Many of the pleadings are out of order. Defendant's counsel has complained that some motions and pleadings are entirely missing. Others are filed repetitiously. Correspondence is filed in some instances as for pleadings and in other instances lay loose in the folder. Orders in the court file do not coordinate with the computerized case detail. And true to form, the trial transcript ordered by the undersigned to aid the task of writing this memorandum, is replete with errors, possibly due to difficulties with the monitoring equipment.

As ordered by the court, the defendant served notice of the motion to open upon Marcia. Notwithstanding the notice, and although she is a codefendant in the damages case, where she filed a pro se appearance, Marcia has not participated in any of these proceedings.

On October 27, 2006 the defendant filed a motion to transfer and consolidate. The consolidate part was clear enough — the request was to consolidate the 1988 paternity case including the pending motion to open, with the 2006 case. The motion failed to designate to which division of the court transfer was requested. On November 28, 2006, the court, Stodolink, J.T.R., granted the motion without comment or clarification, and similarly summarily denied the State's motion to dismiss. By mid-2007 all counsel were treating the two cases as essentially merged, and were entertaining themselves with various motions for disclosure and production, to quash, for sanctions and continuance requests. At least two status conferences were scheduled.

On July 25, 2007, the court, Alander, J., referred the consolidated matters to the civil docket. Two further status conferences were scheduled in the civil division before the court, Hiller, J., referred the consolidated cases back to the Family Support Magistrate Division.

Following further machinations, the matters were heard over extended dates starting October 29, 2007 and concluding with closing arguments on September 30, 2008. The court, Strada, F.S.M, issued a decision denying the motion to open⁵ on April 29, 2009.

5 Although the decision specifically denied the motion to open the paternity judgment, and did not specifically address the complaint in the damages case, it was filed in both of the consolidated files. It is apparent from the subsequent pleadings and the subsequent orders of the Superior Court that all concerned deemed the decision to also deny the relief demanded in the 2006 case. In any event, the denial of the motion to open would appear to render the damages claim moot.

On May 15, 2009 the defendant filed a nineteen-paragraph Motion for Articulation, ⁶ which was denied on the grounds that the defendant had not filed an appeal within 14 days of the decision as provided in General Statutes § 46b-231(n). The defendant did finally file his appeal on May 18, 2009. The defendant also filed: motion for mistrial; "pendente lite motion for mistrial and consolidation and other relief;"⁷ application to present additional evidence, "notice to appellate clerk" regarding the late filing; motion to reopen hearing; objection to motion for extension of time; motion for summary judgment; motion for review of denial of motion for articulation; motion for a new trial; and motion to reargue.

6 The motion for articulation reads like interrogatories directed to the court.

7 This motion seemed to request a consolidation of the paternity case with the damages case, even though that had already been done more than two years previous. The motion also sought a mistrial because of the delay in the filing of a final decision, and a transfer to the family docket.

On August 25, 2009, the Superior Court, Pinkus, J., rendered the following decision: "The court is treating the motion for summary judgment as a motion to set aside and hereby grants the motion for the reason that the decision of the magistrate was beyond the 120 day period. The case is remanded to magistrate docket for a new hearing."

The remand hearing on the consolidated cases was held before the undersigned on December 8, 2009.

III. PRELIMINARY MOTIONS

Just prior to the scheduled date of this hearing, the defendant filed a "Motion for DNA Paternity testing under Section 46b-168" and a "Motion for Oneglia Hearing Concerning Post Judgment Discovery." The defendant then proposed that the scheduled hearing be devoted to argument on these motions, and that the hearing on the substance of the motion to open be delayed pending said preliminary motions.

This court declined the invitation to further delay the substantive hearing, and instead, heard argument on the preliminary motions and reserved decision to this memorandum. The court now holds that the motions are dilatory, unnecessary, and contrary to law. Accordingly, both motions are denied.

The motion for genetic testing is precluded by the Appellate Court's decision in Cardona v. Negron, 53 Conn.App. 152, 157, 728 A.2d 1150 (1999), wherein the court held that where a paternity judgment exists the court lacks the authority to order genetic tests unless the judgment is first opened. Apparently, the defendant thought to avoid the unambiguous directive of Cardona by filing the motion under the docket number of the damages case. This ruse is unavailing. The fact remains that paternity in this case was settled at law in 1988 and accordingly the court lacks authority to order genetic testing unless and until the acknowledgment is opened.

Furthermore, there is no purpose for a DNA test at this time. The defendant's two DNA tests in 2000 were admitted into evidence at the hearing, albeit for limited purposes. More importantly, the plaintiff does not challenge the defendant's claim that he is not Marcia's biological father. In fact, she admits as much. There is nothing to be added by a further DNA test at this juncture.

The motion for an Oneglia hearing is equally pointless. The defendant is apparently seeking a preliminary hearing to determine whether post-judgment discovery may be permitted. Nolan v. Nolan, 76 Conn.App. 583, 821 A.2d 772 (2003); Oneglia v. Oneglia, 14 Conn.App. 267, 540 A.2d 713 (1988). However, this motion has been pending for four years. There has been ample time to seek discovery and in fact there has been abundant discovery notwithstanding the theoretic preclusion posed by the judgment.⁸ At the hearing, the plaintiff and the State stipulated to the admission of all of the exhibits offered by the defendant.

8 The defendant was not precluded from discovery in the 2006 action, and in fact propounded interrogatories and production requests under the aegis of that case. For example, see Defendant's exhibit E.

The motions are denied.

IV. JURISDICTION AND AUTHORITY

"Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. 1 Restatement (Second), Judgments § 11 [(1982)]. A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979). Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action. Craig v. Bronson, 202 Conn. 93, 101, 520 A.2d 155 (1987)." (Internal quotation marks omitted.) Hartford v. Pan Pacific Development (Connecticut) Inc., 61 Conn.App. 481, 485, 764 A.2d 1273, cert. denied, 256 Conn. 913, 772 A.2d 1126 (2001).

"Although related, the court's authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute. Bailey v. Mars, 138 Conn. 593, 601, 87 A.2d 388 (1952) . . . Amodio v. Amodio, 247 Conn. 724, 727-28, 724 A.2d 1084 (1999). (Internal quotation marks omitted.) Beizer v. Dept. of Labor, 56 Conn.App. 347, 362, 742 A.2d 821, cert. denied, 252 Conn. 937, 747 A.2d 1 (2000)." Ragin v. Lee, 78 Conn.App. 848, 863-64, 829 A.2d 93 (2003).

Paternity in this case was established through the paternity acknowledgment statute, General Statutes § 46b-172. "The statute provides that when an acknowledgment is executed and sworn to by the father when accompanied by the written affirmation of the mother and an attested waiver of rights, it `shall have the same force and effect as a judgment of the Superior Court.' The statutory language makes the document itself the equivalent of a court judgment `without requiring or permitting judicial ratification.' `The legislative scheme precludes the opportunity for a court canvass.' Martin v. Harrell, 16 S.M.D. 306, 308-10, 2002 Ct.Sup. 6995 (2002); Martinez v. Collins, 15 S.M.D. 1, 7 (2001). Thus the statute attempts to imbue acknowledged paternity with the same characteristics as adjudicated paternity judgments." Rosado v. Caceres, 17 S.M D 2003 Ct.Sup. 5789, 5793 (2003). See also Bleidner v. Searles, CT Page 9604 19 Conn.App. 76, 81, 561 A.2d 954 (1989).

A. AUTHORITY OF FAMILY SUPPORT MAGISTRATE DIVISION TO HEAR MOTION TO OPEN 1988 PATERNITY ACKNOWLEDGMENT

The paternity acknowledgment in this case was filed with the Superior Court in this judicial district on January 28, 1988. By statute, the acknowledgment had the "full force and effect" of a judgment of the Superior Court effective on that date.

The Family Support Magistrate Division of the Superior Court was created by Public Acts 1986, No. 86-359, § 1 which was effective October 1, 1986. The division began hearing cases in February 1987. It would seem therefore that after February 1987 there was prima facie authority for a Family Support Magistrate to hear a motion to open an acknowledgment filed after that date.

However, the powers and authority granted to the Family Support Magistrate Division in 1987 were significantly less than the powers that exist today. Significant to the present motion, the Family Support Magistrate in 1987 did not have the authority to hear paternity petitions brought pursuant to the paternity statute, General Statutes § 46b-160. That authority was subsequently granted by Public Acts 1989, No. 89-360, § 11, effective July 1, 1989. However, none of the parties have questioned whether this court has jurisdiction to hear the present motion to open because of the absence of underlying authority to hear paternity petitions brought pursuant to General Statutes § 46b-160.⁹

9 At the hearing, this court only made passing reference to an additional jurisdictional concern which had not been raised by the parties, see Transcript pp. 25-32.

This court declines to raise this issue sua sponte at this time, because after consideration, the court concludes that even absent the authority to hear certain types of paternity petitions, the Family Support Magistrate Division did have "authority or competence to decide the class of cases to which the action belongs" and therefore any "issue of subject matter jurisdiction is resolved in favor of entertaining the action." Craig v. Bronson, supra, 202 Conn. 101, Hartford v. Pan Pacific Development (Connecticut) Inc., supra, 485, cert. denied, 256 Conn. 913, 772 A.2d 1126 (2001).

The Family Support Magistrate Division from its inaugural, was vested with jurisdiction to adjudicate paternity in interstate cases under the Uniform Reciprocal Enforcement of Support Act (URESA). General Statutes § 46b-180 et seq. Thus from 1987 forward, the division in at least certain instances had the authority to adjudicate paternity, hence to "decide the class of cases to which the action belongs . . ." The general authority of family support magistrates to hear and determine paternity proceedings in IV-D cases appears in General Statutes § 46b-231(m)(5).¹⁰

10 As stated above, the specific authority to hear petitions filed by the mother or the State pursuant to General Statutes § 46b-160 and General Statues § 46b-162 stems from Public Acts 1989, No. 89-360, § 11, which became effective on July 1, 1989.

The provision for review of acknowledgments within three years of the judgment by petition to the superior court originated with Public Acts 1981, No. 81-274 prior to the creation of the Family Support Magistrate Division. General Statutes § 46b-172 recognized the jurisdiction of Family Support Magistrates to adjudicate and enforce support in actions based on paternity acknowledgments pursuant to Public Acts 1986, No. 86-359, § 1. The inclusion of the family support magistrate's authority to act in IV-D support cases in the same subparagraph suggests that the 1986 public act vested jurisdiction in the division in IV-D cases after that date. This court's jurisdiction relates back to the filing of the Acknowledgment of Paternity. Thereafter, the court's subject matter jurisdiction is continuing. Pitts-Dawson v. Ayton, 3 S.M.D. 18, 22 (1989). The present case is indisputably a IV-D support case, and has been such since its inception.

The most persuasive reason for this court to decline to consider this issue sua sponte relates to the procedural history of these consolidated cases. As summarized in part II of this memorandum, these matters have been working their way through a procedural morass. The pending matters, namely the motion to open the paternity acknowledgment, and the consolidated action for damages, have been pending for approximately four years. They have been heard by at least three judges and one judge trial referee of the Superior Court. None of them questioned the subject matter jurisdiction of the Family Support Magistrate Division to hear and decide these matters and in fact there have been three explicit referrals to this division with direction to hear and decide these cases.¹¹ Under the circumstances, after four years, this court regards any further delays due to belated procedural or jurisdictional issues, even if raised by the court itself, to be dilatory. The court finds that it has the authority, jurisdiction, and an unambiguous directive from the Superior Court to address these matters on their merits.

11 The Superior Court has authority to refer matters to the Family Support Magistrate pursuant to General Statutes § 46b-232, which has been broadly construed by the Superior Court, and to General Statutes § 46b-231(n)(7), which states, in relevant part: "The Superior Court may affirm the decision of the family support magistrate or remand the case for further proceedings." The remand order by Judge Pinkus on August 25, 2009, clearly commanded this court to rehear and decide these matters.

B. SUBJECT MATTER JURISDICTION TO HEAR MOTION TO OPEN NOTWITHSTANDING CHILD REACHING AGE OF MAJORITY

The parties to this case have not challenged this court's subject matter jurisdiction to hear the defendant's motion to open because Marcia is now an adult. This matter has been thoroughly considered in several recent cases.

"[O]n reflection, the argument that an age of majority limitation [to commencing a paternity action] be imputed [to a motion to open a paternity judgment] obscures the fact that there is indeed a statutory time limitation. A glance at the applicable statutes and practice rules discloses that each contains a four month limitation on motions to open judgments. The common law exceptions of fraud, mistake, duress and the best interests of the child have become so pervasive that one may lose sight of the fact that the time limitation exists. The state and the guardian ad litem appear to be urging the court to impute a sort of uber limitation. There is no precedent for the court to do so, but there is plenty of precedent for the court to consider the age of the child as one of the discretionary factors considered under the more general heading of the best interests of the child." Figueroa v. Diaz, 23 S.M.D. (2009); Santos v. Diaz, 22 S.M.D. (2008).

Accordingly, the child's achieving majority does not implicate the court's subject matter jurisdiction to hear and decide the motion to open.

C. GENERAL SUBJECT MATTER JURISDICTION TO HEAR MOTION TO OPEN PATERNITY ACKNOWLEDGMENT

There are potentially three avenues by which the defendant can seek an opening of the paternity acknowledgment: the provision for challenging the acknowledgment contained within the acknowledgment statute itself; the general statutory provisions for opening a judgment; and the inherent common-law authority of a court to open its own judgment.

A properly executed acknowledgment of paternity "shall have the same force and effect as a judgment of the Superior Court . . . It shall be considered a legal finding of paternity without requiring or permitting judicial ratification . . ." General Statutes § 46b-172(a)(1). Present law provides that an acknowledgment may be rescinded by the parties within the earlier of sixty days or the date that a support order for the child is entered. General Statutes § 46b-172(a)(2).

"The prior judgment as to paternity shall be res judicata as to that issue for all paternity acknowledgments filed with the court on or after March 1, 1981, but before July 1, 1997." General Statutes § 46b-172(c)(4). With regard to paternity acknowledgments filed with the court during that time period, the statute provides a period of three years from the judgment during which a petition could be filed with the superior court for review, apparently without requiring proof of any specific factors. The present defendant would have been eligible for such review had he filed within three years of the acknowledgment, but this window closed on January 28, 1991.

However, under present law, an acknowledgment of paternity "may be challenged . . . on the basis of fraud, duress or material mistake of fact which may include evidence that he is not the father . . ." even after the expiration of the sixty-day rescission period. General Statutes § 46b-172(a)(2). Family support magistrates have jurisdiction to hear such a challenge. Ragin v. Lee, supra, 78 Conn.App. 863-64. Parties subject to the three-year window provided for acknowledgments filed prior to July 1, 1997 have not been precluded from filing a motion to open under this section.

General Statutes § 52-212a provides in pertinent part: "Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed."¹²

12 General Statutes § 52-212 pertains to judgments rendered upon a default or nonsuit, and hence is inapplicable in the present case.

Practice Book § 17-4 provides in pertinent part: "(a) Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent. The parties may waive the provisions of this subsection or otherwise submit to the jurisdiction of the court."

"[O]ur courts have inherent power to open, correct and modify judgments, but that authority is restricted by statute and the rules of practice . . . Courts have interpreted the phrase, [u]nless otherwise provided by law, as preserving the common-law authority of a court to open a judgment after the four month period. Terry v. Terry, 102 Conn.App. 215, 222 n. 5, 925 A.2d 375, cert. denied, 284 Conn. 911, 931 A.2d 934 (2007). A judgment rendered may be opened after the four month limitation if it is shown that the judgment was obtained by fraud, in the absence of actual consent, or because of mutual mistake." (Internal quotation marks omitted.) Dougherty v. Dougherty, 109 Conn.App. 33, 38, 950 A.2d 592 (2008); Richards v. Richards, 78 Conn.App. 734, 739-40, 829 A.2d 60, cert. denied, 266 Conn. 922, 835 A.2d 473 (2003).

"Courts have intrinsic powers, independent of statutory provisions authorizing the opening of judgments, to vacate any judgment obtained by fraud, duress or mutual mistake. See Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980); see also Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 710, 462 A.2d 1037 (1983)." In re Baby Girl CT Page 9608 B., 224 Conn. 263, 283, 618 A.2d 1 (1992). "The authority to open and vacate a judgment is within the inherent power of the trial courts . . . A motion to open and vacate should be granted when the court, acting reasonably, finds good cause to do so." Yaremich v. Lam, 71 Conn.App. 650, 803 A.2d 369 (2002); Paddock v. Paddock, 22 Conn.App. 367, 372, 577 A.2d 1087 (1990). "A motion to open . . . is addressed to the [trial] court's discretion . . ." Rino Gnesi Co. v. Sbriglio, 83 Conn.App. 707, 711, 850 A.2d 1118 (2004).

"A family support magistrate has the inherent authority to open a default judgment of paternity when presented with a motion to open filed by a party with standing to do so." Ragin v. Lee, supra, 78 Conn.App. 864. A motion to open "is not to be granted readily, nor without strong reasons, it may and ought to be when there appears cause for which the court, acting reasonably would feel . . . bound in duty to do so." McCulloch v. Pittsburgh Plate Glass Co., 107 Conn. 164, 167, 140 A. 114 (1927); Wildman v. Wildman, 72 Conn. 262, 270, 44 A. 224 (1899). "The common-law reasons for opening a judgment seek to preserve fairness and equity. Kim v. Magnotta, 249 Conn. 94, 109, 733 A.2d 809 (1999)." Nelson v. Charlesworth, 82 Conn.App. 710, 713-14, 846 A.2d 923 (2004).

Additionally, the trial court has authority to open a paternity determination if it concludes that it is in the best interests of the child to do so. "[A] child who is the subject of a paternity action has a fundamental interest in an accurate determination of paternity that is independent of the state's interest in establishing paternity for the benefit of obtaining payment for the child's care and any interest that the parents may have in the child." Ragin v. Lee, supra, 78 Conn.App. 863; Parker v. Dansby, 19 S.M.D. 39 Conn.L.Rptr. 768, 2005 Ct.Sup. 94531 (Wihbey, F.S.M. 2005), aff'd, 41 Conn.L.Rptr. 245, 2006 Ct.Sup. 7184 (Resha, J., 2006); accord Commissioner of Social Services v. Mercure, 2004 Ct.Sup. 16009 (Driscoll, J., 2004); Johnson v. Domina, 23 Conn.L.Rptr. 102, 1998 Ct.Sup. 11005 (Dranginis, J., Sep. 24, 1998).

The defendant's motion to open appears to only invoke the court's common-law authority and jurisdiction. However, giving the broadest possible deference to the defendant, the court will consider the motion to invoke all available avenues for consideration. Under either or all alternatives, this court has jurisdiction and authority to hear this motion.

D. ON HEARING MOTION TO OPEN PATERNITY ACKNOWLEDGMENT IS THE FAMILY SUPPORT MAGISTRATE PRECLUDED BY WANT OF SUBJECT MATTER JURISDICTION FROM CONSIDERING ANY ISSUES THAT SOUND IN EQUITY? The defendant has consistently objected to this court considering any claim of laches, estoppel or the best interests of the child on the grounds that the Family Support Magistrate Division is a statutory court, and hence does not have equitable jurisdiction.

As a general principal, the defendant is correct that this court does not have equity jurisdiction because it is a statutory and not a constitutional court. "The courts of this state fall into two groups, those established by the constitution itself and those created by the General Assembly under authority granted in the constitution. Section 1 of article 5 of the constitution of 1818, carried over, virtually unchanged, into the constitutions of 1955 and 1965 [subsequently amended by article XX], provided as follows: `The judicial power of the state shall be vested in a supreme court of errors, a superior court, and such inferior courts as the general assembly shall, from time to time, ordain and establish: the powers and jurisdiction of which courts shall be defined by law.' Thus, the Supreme Court[,] [the Appellate Court] and the Superior Court are established by the constitution and may be referred to as constitutional courts, while all other courts . . . are established by the legislature and fall within the designation of `lower courts.'" (Emphasis added.) Adams v. Rubinow, 157 Conn. 150, 155-56, 251 A.2d 49 (1968).

"The Connecticut Family Support Magistrate's Act, General Statutes §§ 46b-231 through 46b-235, was first enacted in 1986 in response to federal legislation providing federal funds for states that complied with federal requirements for the expeditious enforcement of child support orders in cases arising under Title IV-D . . . The enactment of § 46b-231(d) created the family support magistrate division of the superior court for the purpose of the impartial administration of child and spousal support . . . This legislation was enacted to address the legislature's concern for the timely and effective collection of support payments arising out of child and spousal support rights under Title IV-D of the Social Security Act, 42 U.S.C. § 651 et seq. (Citations omitted; internal quotation marks omitted.) Sierra v. Lozada, 31 Conn.App. 114, 117, 623 A.2d 1045 (1993)." Plemmons v. Newton, 34 Conn. L. Rptr. 308 (Swienton, J., February 25, 2003).

The Family Support Magistrate Division is a statutory court and is limited to act within the statutory powers granted to it. Reynolds v. Allicock, 15 S.M.D. 74, 76, 2001 Ct.Sup. 2456 (2001); Holden v. Skinner, 7 S.M.D. 19, 24 (1993); Jorgensen v. Jorgensen, 1 S.M.D. 34 (1987); see also Conn. Constitution, Article Fifth; Article XX of Amendments; Article XXV of Amendments; General Statutes § 46b-231(m); Brown v. O'Connell, 36 Conn. 432 (1870); Betts v. Town of New Hartford, 25 Conn. 180 (1856); Osborn v. Stamford Zoning Board of Appeals, 11 Conn.Sup. 489 (1943). "The Family Support Magistrate is not a Judge of the Superior Court and does not have full judicial powers . . . The judicial powers of the Family Support Magistrate are limited to those established by the General Assembly in the Family Support Magistrate's Act, General Statutes § 46b-231, and related sections and public acts . . . Unlike a judge of the Superior Court, the powers of a Family Support Magistrate to enforce support orders are wholly statutory." Correa v. Roane, 15 S.M.D. 288, 293 (Lifshitz, F.S.M, September 13, 2001); Dalley v. Wineglass, 11 S.M.D. 1, 26 (Lifshitz, F.S.M. 1997).

"Unlike a Superior Court Judge, a family support magistrate is not vested with equitable powers . . . Therefore, a family support magistrate may only act pursuant to powers provided for by statute and not based on principles of equity." Morrison v. Lindberg, 14 S.M.D. 331, 333, 28 Conn. L. Rptr. 611, 2000 Ct.Sup. 14014 (Langley, F.S.M, November 13, 2000); DeSenti v. DeSenti, 11 S.M.D. 214, 217 n. 2. (Lifshitz, F.S.M September 21, 1997); see also, Figueroa v. Molina, 14 S.M.D. 304, 306, 28 Conn. L. Rptr. 336 (Langley, F.S.M, November 1, 2000).

"However, family matters inherently have equitable aspects. Furthermore, a motion to open judgment, like a petition for a new trial, while governed by statute, is essentially equitable in nature. State v. Grimes, 154 Conn. 314, 325, 228 A.2d 141 (1966); Wendt v. Wendt, 2001 Ct.Sup. 3413, 3415, Superior Court, judicial district of Stamford/Norwalk at Stamford, doc. no. FA99-0172598 (Shay, J., March 1, 2001). See also Jacobs v. Fazzano, 59 Conn.App. 716, 757 A.2d 1215 (2000)." Drakeford v. Ward, 15 S.M.D. 372, 391, 2001 Ct.Sup. 15865 (Lifshitz, F.S.M. November 7, 2001); see also Rizzo v. Pack, 15 Conn.App. 312, 315, 544 A.2d 252 (1988).

Strictly as a matter of law the opening of a paternity judgment is limited to the windows provided by statute, namely sixty days under the acknowledgment statute, or as in this case of a pre-1997 acknowledgment, three years, or four months under the general provisions for opening any civil or family judgment. Beyond those windows, a party seeking to open a judgment must rely on the discretion of the court. The common-law remedy also relies on the sound discretion of the court. In exercising that discretion, the court applies a mix of law and equity. Once outside the time limits provided in the statutes, the resort to the common-law grounds of fraud, duress or mutual mistake are themselves equitable considerations. Flater v. Grace, 291 Conn. 410, 424, 969 A.2d 157 (2009). In Nelson v. Charlesworth, 82 Conn.App. 710, 846 A.2d 923 (2004), the court held that "it was within the court's discretion to hold that equitable considerations required that the judgment be opened." See also, Yale University v. Out Of The Box, LLC, 118 Conn.App. 800, 806, 985 A.2d 1080 (2010) (on a motion to open, "equitable authority is vested in the trial court").

The authority to hear motions to open or review paternity judgments empowers, even mandates, that the Family Support Magistrate include equitable considerations in its exercise of discretion. To hold otherwise would essentially negate any purpose in a Family Support Magistrate hearing such a matter and virtually mandate referral of any such motion to the Superior Court. In Ragin v. Lee, supra, 78 Conn.App. 863, the court not only held that the Family Support Magistrate had subject matter jurisdiction to decide the motion to open a default paternity judgment, but also commanded the Family Support Magistrate to consider the best interest of the child in the remand hearing. As the present defendant explicitly recognized, the best interest of the child is an equitable consideration. Yet in Ragin v. Lee, the Appellate Court did not preclude the Family Support Magistrate from considering the issue, but rather, required it to do so.

The Probate Court, which is also a statutory court, similarly has no general equity jurisdiction. "The Probate Court is a court of limited jurisdiction prescribed by statute, and it may exercise only such powers as are necessary to the performance of its duties." Heussner v. Hayes, 289 Conn. 795, 802, 961 A.2d 365 (2008); see also Gaynor v. Payne, 261 Conn. 585, 596, 804 A.2d 170 (2002). "A Probate Court may exercise jurisdiction based on statutory authority only when `the facts and circumstances exist upon which the legislature has conditioned its exercise of power.' Heussner v. Hayes, supra, 803. `Ordinarily, therefore, whether a Probate Court has jurisdiction to enter a given order depends upon the interpretation of a statute.' (Internal quotation marks omitted.) In re Michaela Lee R., 253 Conn. 570, 581, 756 A.2d 214 (2000)." Bender v. Bender, 292 Conn. 696, 707, 975 A.2d 636 (2009).

However, our Supreme Court has recognized an exception to the general rule that the Probate Court has no jurisdiction over equitable claims ". . . when the equitable claim is incidental to, and connected with, the settlement of a particular estate." Palmer v. Hartford National Bank Trust Co., 160 Conn. 415, 429, 279 A.2d 726 (1971) "The situation . . . in which the Probate Court may exercise equitable jurisdiction must be one which arises within the framework of a matter already before it, and wherein the application of equity is but a necessary step in the direction of the final determination of the entire matter." Id.; Bender v. Bender, supra, 292 Conn. 707.

The Family Support Magistrate division of the Superior Court, like the Probate Court, must exercise equitable principles in this case because the framework of the matter before it requires the application of equity.¹³ In fact, the defendant originally claimed fraud as a basis to open the judgment and this court pointed out that it would be required to make a finding that the defendant acted within a reasonable time of the entry of the judgment. Interestingly, the defendant seemed to abandon fraud as a basis for opening the judgment perhaps because of the circularity of arguing that the court can on the one hand make a finding of fraud but not, on the other hand, make a finding on the issue of laches.

13 Motions to open paternity judgments are far from the only proceedings in which Family Support Magistrates are mandated to consider equitable factors. Family support magistrates are mandated to hear and determine matters involving spousal and child support in IV-D cases. In determining child support, just as would a Superior Court Judge, the Family Support Magistrate is required to consider the child support guidelines in all determinations of child support amounts. General Statutes § 46b-215b(a). There is a rebuttable presumption that the amount calculated pursuant to the guidelines is to be ordered, unless the court makes a "specific finding on the record that the application of the guidelines would be inequitable and inappropriate." Id. (Emphasis added.) The guidelines themselves contain a section of "Deviation Criteria" Regs. Conn.State Agencies § 46b-215a-3 which are essentially equitable defenses to the presumptive support order. Furthermore, the deviation criteria include a subsection, Regs. Conn.State Agencies § 46b-215a-3(b)(6) entitled "Special circumstances." The preamble to the section states: "In some cases, there may be special circumstances not otherwise addressed in this section in which deviation from presumptive support amounts may be warranted for reasons of equity." Among the following listed special circumstances are "(C) Best interests of the child" and "(D) Other equitable factors." Another duty of Family Support Magistrates is to hear and determine motions for modification in IV-D support cases. Courts have recognized that modifications are at least in part, equitable proceedings. See Weinstein v. Weinstein, 104 Conn.App. 482, 492, 934 A.2d 306 (2007), cert. denied, 285 Conn. 911, 943 A.2d 472 (2008); Syragakis v. Syragakis, 79 Conn.App. 170, 174, 829 A.2d 885 (2003).

"Equity is a two-way street and must be recognized as such wherever the court employs equity to resolve a dispute. Jerry Harmon Motors, Inc. v. Heth, 316 N.W.2d 324, 329 (N.D. 1982)." Hackett v. Hackett, 42 Conn.Sup. 36, 53, 598 A.2d 1112, aff'd, 26 Conn.App. 149, 598 A.2d 1103 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992); Jacobs v. Fazzano, 59 Conn.App. 716, 722, 757 A.2d 1215 (2000). Here, the defendant insists on a one-way street. The defendant seeks to avoid the fact that his motion is between fifteen and eighteen years too late, depending on which statute is relied upon, for reasons of equity and fairness, while proposing to deny the plaintiff, the child, and the state the right to ask the court to consider countervailing factors of equity and fairness. If this court were to wholly ignore consideration of any factor that even tangentially implicated equity, it would deny the defendant's motion and the consolidated damages claim, on the simple grounds that they are precluded by time limitations in the statutes, and that the exceptions may not be considered because they implicate equity. However, this court discerns that the applicable statutes, practice rules and case law which authorize this court to hear and decide a motion to open, implicitly require consideration of equitable factors within the limited four corners of the motion.

Lastly, as discussed in Part IV A, supra, the court must be congnizant of the procedural history of this case. The defendant has persistently raised objection to the Family Support Magistrate considering laches, estoppel, and the best interest of the child because they are equitable in nature. In fact, it was the main argument he has posed in his effort to transfer the hearings to the Superior Court. Notwithstanding, as has been mentioned, there have been three explicit referrals to this division with direction to hear and decide these cases. While this issue is colorable, and somewhat intriguing, this court presumes that the Superior Court, in remanding the motion to open back to this division, did so in full understanding of the defendant's objections.

This court concludes, therefore, that it has the authority to hear and determine responses raised in opposition to the motion to open regardless of whether they are equitable in nature.

V. SUPPLEMENTAL FINDING OF FACTS

Based on the testimony of the parties and witnesses, this court's determination of the weight and credibility of the testimony, ¹⁴ and the exhibits admitted into evidence, the court finds the following additional facts: The plaintiff and defendant became involved in a relationship in early 1986. The relationship became sexual and continued until the defendant left in late April or early May of 1986. After a hiatus of approximately four months, the parties resumed a dating relationship in late August. They did not begin to have sexual intercourse again until late August or early September of 1986. (Transcript pp. 56-60.)

14 "`In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony . . . It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence.' (Citation omitted; internal quotation marks omitted.) Cadle Co. v. D'Addario, 268 Conn. 441, 462, 844 A.2d 836 (2004); see also Notopoulos v. Statewide Grievance Committee, 277 Conn. 218, 227, 890 A.2d 509 (`[c]redibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness' conduct, demeanor and attitude' [internal quotation marks omitted]), cert. denied, U.S., 127 S.Ct. 157, 166 L.Ed.2d 39 (2006); Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 507, 646 A.2d 1289 (1994)." Connecticut Education Association, Inc. v. Milliman USA, Inc., 105 Conn.App. 446, 454, 938 A.2d 1249 (2008). "Furthermore `[t]he trial court is not bound by the uncontradicted testimony of any witness.' (Internal quotation marks omitted.) West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 17, 901 A.2d 649 (2006); see also Bieluch v. Bieluch, 199 Conn. 550, 555, 509 A.2d 8 (1986); Moss v. Foster, 96 Conn.App. 369, 378 n. 6, 900 A.2d 548 (2006) (trier of fact can disbelieve any evidence, even if uncontradicted); Giulietti v. Giulietti, 65 Conn.App. 813, 878, 784 A.2d 905 (trial court free to reject uncontradicted testimony of witness), cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001); State v. Alvardo, 62 Conn.App. 102, 110-11, 773 A.2d 958 (trier of fact free to reject uncontradicted testimony and equally free to reject part of witness' testimony even if other parts credible), cert. denied, 256 Conn. 907, 772. A.2d 600 (2001). Put another way, `[a]bsence of direct contradiction by the mouth of a witness does not make a fact undisputed within the meaning of the rule . . . The trial court is at liberty to discredit any witness or multitude of witnesses, if it deems that it has cause to do so. It is one of the important functions of a trier to determine the relative credit to be given to oral evidence.' (Internal quotation marks omitted.) Greco v. Morcaldi, 145 Conn. 685, 687, 146 A.2d 589 (1958); State v. Coulombe, 143 Conn. 604, 608, 124 A.2d 518 (1956 )." Connecticut Education Association, Inc. v. Milliman USA, Inc., supra, 105 Conn.App. 455-56.

At some point during the interlude, the plaintiff was unfortunately the victim of a rape. (Defendant's Exhibit E.) The plaintiff did not disclose that she had been raped to the defendant or to anyone else at the time and for many years thereafter. She discovered that she was pregnant around the beginning of September, and informed the defendant forthwith. She informed the defendant that the baby was due in March 1987. (Transcript pp. 166-69).¹⁵ The child who is the subject of the present motion to open, Marcia, was born on March 3, 1987. (Defendant's Exhibit A.)

15 The testimony of the parties is in conflict on this issue, and a substantial amount of time was expending by counsel exploring the details of each party's understanding of the timing of the gestation. The court finds the testimony of the plaintiff the more credible on this issue. Her testimony was clear and direct. The defendant's testimony was confused and at times contradictory.

Around six months after Marcia was born, the parties separated. The defendant signed the acknowledgment on January 22, 1988, almost a year after she was born. For a short period of time, the defendant paid the rent on the plaintiff's apartment and helped with utilities, clothing and food. In August 1988, a support order was entered. As related in Part I, supra, the defendant successfully appealed, resulting in the order being reduced. In 1991, the defendant married his present wife and in 1992 they moved to Georgia. (Plaintiff's Exhibit 1.) He has two children issue of the marriage. At approximately the time of the move to Georgia, the defendant ceased his child support payments, with the exception of involuntary tax intercepts, (Transcript, p. 92,) and a few months of income withholding. (Transcript, pp. 154-57.)

Subsequent to the defendant and his family moving to Georgia, Marcia began spending her summers with the defendant's family in Georgia, or with his parents in Alabama. On one such visit, when she was twelve years old, the defendant had a DNA test conducted.¹⁶ The results indicated that the defendant was not Marcia's biological father. The defendant informed the plaintiff of the results. The plaintiff's immediate reaction was shock and disbelief. She insisted on a second DNA test. This was conducted and the results again showed an exclusion.

16 The defendant related several stories as to why he had the DNA test conducted. He related that his father worked at a shipyard in Mississippi where he contracted tuberculosis. Apparently as part of a compensation settlement, an insurance policy was to be provided to cover the children and grandchildren. As a condition of the insurance policy, certain information, including blood type, was required for each grandchild. The defendant claimed that when he requested the necessary information from the plaintiff, she was uncooperative, which raised his suspicions. (Transcript, pp. 42-45.) Thereafter, the defendant spoke of an e-coli outbreak at the local swimming pool, which led him to take all of his children including Marcia, to a doctor. Somehow, this incident led him to a DNA test. (Transcript, pp. 45-47.) At another point apparently family members convinced him that Marcia didn't physically resemble him.

The parties entered an agreement that the DNA test results be entered as exhibits, "but limited to the fact that it goes to the weight that there's no chain of custody with this paternity test and it was not done pursuant to court order." (Transcript p. 8.)¹⁷ The DNA test results were entered as defendant's exhibit C-2 which is dated August 31, 1999 and defendant's exhibit D which is dated April 14, 2000 with the same limitation set forth in the previous sentence. (Transcript pp. 11-12.) The reports indicate that the defendant is excluded as Marcia's biological father.

17 General Statutes § 46b-168 provides that in any proceeding "in which the question of paternity is at issue, the court or a family support magistrate, on motion of any party, may order genetic tests . . . to be performed by a hospital, accredited laboratory, qualified physician or other qualified person designated by the court General Statutes § 46b-168a confers a similar authority upon the IV-D agency. Such tests, when so ordered, . . . shall be admissible in evidence . . . without the need for foundation testimony or other proof of authenticity or accuracy . . . unless a written objection is filed.
Prior proceedings in this matter reveal heated dispute over potential admission of the two DNA results in this matter because there was no court order. The statute does not preclude admission, it simply provides that when the tests are done by court order, no foundation testimony or proof of authenticity is required. Thus the State and petitioner could have forced the defendant to prove authenticity, presumably through an expert witness from the laboratory that conducted the test. Although the laboratory results were admitted subject to the stated limitation, the plaintiff clearly accepted the results of the second test, and neither party posed a serious challenge to the authenticity.

The defendant did not file a motion to open the judgment even after the DNA results were known. He did contact the support enforcement office in Bridgeport to advise them of the DNA test and faxed copies of the lab reports. While his claims to have notified support enforcement are credible, the corollary claim that representations were made to him that they would somehow "take care of" the paternity judgment are not.

The plaintiff, meanwhile, filed a petition in the Probate Court, to have Marcia's surname changed from Moss to Eubanks. As part of her application, she admitted that the defendant was not Marcia's biological father, and for the first time, openly disclosed the rape. The defendant was aware of the change of name application. In fact, the plaintiff claims that she filed it because the defendant wanted her to do so. It is noteworthy that the defendant did not utilize the Probate Court proceeding to petition for termination of his parental rights.

In 2005, support enforcement services seized a bank account and other assets of the defendant. The value of the seized assets was in the vicinity of $18,000. The defendant retained counsel and filed a request for an administrative "fair hearing" with the Department of Social Services. His request was denied at the hearing. He then filed a request for a rehearing which was apparently granted, but never held, pending the outcome of these proceedings.

The parties are in dispute over the question of whether the defendant continued to treat Marcia as his daughter after the DNA results became known. Although the defendant claims the relationship changed, he visited Marcia in Connecticut within a year or so after the DNA results came out, and Marcia continued to summer in the south, although perhaps more often with her grandparents in Alabama, but still with visits to the defendant and his family in Georgia. He has continued to accept telephone calls from Marcia since she became an adult. He has stated in writing: "Until the day I leave this earth I will continue to love care for her. I believe being a father is a blessing from God Almighty. I have never neglected Marcia a day in my life," (Plaintiff's Exhibit 1.) In March 2006 the defendant filed the motion to open and in June he filed the damages case.

VI. FINALITY OF JUDGMENT

"Our courts favor finality in judicial decisions." Meinket v. Levinson, 193 Conn. 110, 113, 414 A.2d 454 (1984); Vogel v. Vogel, 178 Conn. 358, 362, 422 A.2d 271 (1979); Perkins v. Perkins, 3 Conn.App. 322, 328, 487 A.2d 1117 (1985); Dawkins v. Nash, 15 S.M.D. 356, 7 Conn.Ops. 1302, 2001 Ct.Sup. 14254 (2001); Tirado v. Rivera, 13 S.M.D. 230, 238, 1999 Ct.Sup. 15638 (1999).

"Public policy requires that a term be put to litigation and the judgments, as solemn records upon which valuable rights rest, should not lightly be disturbed or overthrown . . ." Lampson Lumber Co. v. Hoer, 139 Conn. 294, 297, 93 A.2d 143 (1952); Daly v. Daly, 19 Conn.App. 65, 71, 561 A.2d 951 (1989); Drakeford v. Ward, 15 S.M.D. 372, 2001 Ct.Sup. 15865 (2001); White v. Cordier, 14 S.M.D. 85, 27 Conn.L.Rptr. 365, 2000 Ct.Sup. 6486 (2000); Pullen v. Cox, 9 S.M.D. 134, 137 (1995). "`Because of the important consideration of finality of judgments . . . a judgment should not be opened without a strong and compelling reason . . . The motion should be granted only when there appears cause for which the court acting reasonably would feel bound in duty so to do.' (Citations omitted; internal quotation marks omitted.) Martin v. Martin, 99 Conn.App. 145, 156, 913 A.2d 451 (2007); Cadle Co. v. Errato, 2007 Ct.Sup. 11085 (Lopez, J., June 20, 2007)." Wright v. Holland, 21 S.M.D. (2007).

"`Once a judgment [is] rendered it is to be considered final and it should be left undisturbed by post-trial motions except for a good and compelling reason.' (Internal quotation marks omitted.) TLC Development, Inc. v. Planning Zoning Commission, 215 Conn. 527, 533, 577 A.2d 288 (1990). Otherwise, `there might never be an end to litigation.' (Internal quotation marks omitted.) Buster v. Commissioner of Correction, 26 Conn.App. 48, 52, 596 A.2d 943 (1991)." Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 107, 952 A.2d 1 (2008).

"The finality of judgment in family matters is crucial to our community's stability." Berry v. Berry, Superior Court, judicial district of Hartford/New Britain at Hartford, doc. no. FA91-0391459, 1993 Ct.Sup. 22 (Steinberg, J., 1993); Joseph v. Lilburn, 14 S.M.D. 337, 339 (2000).¹⁸ "The need for finality of judgment . . . must apply as much or more to cases where a young child for whom the passage of time which may seem short for an adult or teenager, can be almost an eternity to an infant, and work changes with substantial and irreversible effect." In re Kelly S., Superior Court, juvenile matters, judicial district of Windham at Willimantic, doc. no. N90-159, 1991 Ct.Sup. 10450, 10464 (Teller, J., Dec. 5, 1991); In re Nathan and Michael G., Superior Court, juvenile matters, judicial district of Windham at Willimantic, 1993 Ct.Sup. 9953, 9967 (Brenneman, J., Nov. 17, 1993); In re Mark and Amy C., Superior Court, juvenile matters, judicial district of New London at Montville, 1991 Ct.Sup. 7960, 10464 (R. Walsh, J., Sept. 24, 1991); In re Jesus Lugo, Superior Court, juvenile matters, judicial district of Hartford/New Britain at Plainville, 1990 Ct.Sup. 878, 887 (Brenneman, J., Aug. 24, 1990).

18 The State, represented by the Assistant Attorney General, opposes the motion. The State has a financial interest in this case because of past temporary family assistance paid and the subsequent arrearage finding and recoupment order. Additionally, the State has an interest in supporting the integrity of our judicial branch by advocating finality of judgments where appropriate and likewise to support the integrity of the acknowledgment statute. Parker v. Dansby, 41 Conn. L. Rptr. 245, 2006 Ct.Sup. 7184, 7188 (Resha, J., 2006); Wright v. Holland, 21 S.M.D. (2007). Connecticut also "evinces a strong state policy of ensuring that minor children receive the support to which they are entitled." In re Bruce R., 234 Conn. 194, 209, 662 A.2d 107 (1995). "The State's financial interest is not the determining factor but one of many the court must analyze." Joseph v. Lilburn, 14 S.M.D. 337, 354 (2000). In the present matter, since the defendant specifically invoked two grounds, namely material mistake and the best interests of the children, and since the defendant failed to prevail on these issues, further analysis of the State's position is unnecessary.

"Negligence is no ground for vacating a judgment, and it has been consistently held that the denial of a motion to open a default judgment should not be held an abuse of discretion where the failure to assert a defense was the result of negligence." (Internal quotation marks omitted.) Rowe v. Goulet, 89 Conn.App. 836, 841-42, 875 A.2d 564 (2005).

VII. FRAUD

The defendant's motion claimed fraud. During the ensuing proceedings including a good part of the hearing, the defendant insisted in most emphatic terms, that he was the victim of a most malicious fraud by the plaintiff. In the consolidated damages claim, he alleges that the plaintiff knowingly made false statements "with the intent to deprive the plaintiff of property and to continue to wrongfully take, obtain and withhold such property . . ." Yet at the conclusion of the hearing, the defendant apparently acknowledged that he had not sustained his burden of proof on the issue of fraud, and abandoned the claim. (Transcript, 179-80.)

Family Support Magistrates have jurisdiction to hear a challenge to an acknowledgement of paternity after the sixty-day rescission period provided by General Statutes, § 46b-172(a)(2) "only on the basis of fraud, duress or material mistake of fact." General Statutes § 46b-172(a)(2). See also Ragin v. Lee, supra, 78 Conn.App. 848, 863-64.

A judgment obtained by fraud may be attacked even after the time limitation for opening the judgment. Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980); Gatling v. Gatling, Superior Court, judicial district of Waterbury, Docket No. 52272 (August 9, 1990, Harrigan, J.); White v. Cordier, 14 S.M.D. 85, 27 Conn. L. Rptr. 365 (2000); Cardona v. Negron, 13 S.M.D. 133, 139 (August 3, 1999, Matasavage, F.S.M.); McNealy v. Dancy, 13 S.M.D. 107, 114 (1999).

"The court does have jurisdiction to open a stipulated judgment, on a motion, even after the four month period has elapsed if the movant can show that the judgment was obtained by fraud, duress, accident or mistake." Yeong Gil Kim v. Magnotta, 49 Conn.App. 203, 209, 714 A.2d 38 (1998); Solomon v. Keiser, 22 Conn.App. 424, 577 A.2d 1103 (1990); McDonnell v. McDonnell, Superior Court, judicial district of Hartford, doc. No. FA94-0535761 (Bishop, J., February 2, 1999)." Rivera v. Gonzalez, Superior Court, judicial district of Hartford at Hartford, Docket No. FA91 0609209 (August 11, 2002, Lifshitz, F.S.M).

"Fraud is defined as `[d]eceit, deception, artifice, or trickery operating prejudicially on the rights of another, and so intended, by inducing him to part with property or surrender some legal right . . . Anything calculated to deceive another to his prejudice and accomplishing the purpose, whether it be an act, a word, silence, the suppression of the truth, or other device contrary to the plain rules of common honesty.' (Citation omitted.) Ballentine's Law Dictionary (3d Ed. 1969)." (Internal quotation marks omitted.) Nelson v. Charlesworth, 82 Conn.App. 710, 714, 846 A.2d 923 (2004).

"`[T]he essential elements of fraud are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury . . . All of these ingredients must be found to exist . . .' (Citations omitted; internal quotation marks omitted.) Ferris v. Faford, 93 Conn.App. 679, 691-92, 890 A.2d 602 (2006)." Garrigus v. Viarengo, 112 Conn.App. 655, 663-64, 963 A.2d 1065 (2009); see also Billington v. Billington, 220 Conn. 212, 217, 595 A.2d 1377 (1991); Kilduff v. Adams, Inc., 219 Conn. 314, 329, 593 A.2d 478 (1991); Maturo v. Gerard, 196 Conn. 584, 587, 494 A.2d 1199 (1985). "[T]he party alleging fraud bears the burden of proving it with clear, precise, and unequivocal evidence." (Internal quotation marks omitted. Falls Church Group, Ltd. v. Tyler, Cooper Alcorn, LLP, 281 Conn. 84, 110, 912 A.2d 1019 (2007). The moving party bears a heavy burden of proof. "Fraud must be proven by `clear and satisfactory evidence,' a standard more exacting than a fair preponderance of the evidence." Gatling v. Gatling, Superior Court, judicial district of Waterbury, Docket No. 52272 (August 9, 1990, Harrigan, J.); Dawkins v. Nash, 15 S.M.D. 356, 363, 7 Conn.Ops. 1302 (Colella, F.S.M., Oct. 29, 2001); see also Weisman v. Kaspar, 233 Conn. 531, 539-40, 661 A.2d 530 (1995); Rego v. Connecticut Ins. Placement Facility, 219 Conn. 339, 343, 593 A.2d 491 (1991); Kilduff v. Adams, Inc., supra, 327; Alaimo v. Royer, 188 Conn. 36, 39, 448 A.2d 207 (1982).

Additionally, the judgment may be opened only if the moving party is not barred by any of the following restrictions: "(1) there must have been no laches or unreasonable delay by the injured party after the fraud was discovered. (2) There must have been diligence in the original action, that is, diligence in trying to discover and expose the fraud. (3) There must be clear proof of the perjury or fraud. (4) There must be a substantial likelihood that the result of the new trial will be different. James, Civil Procedure (1965) § 11.7, pp. 540-42; 36 Ill. L. Rev. 894, 896-97 (1942). Furthermore, the granting of such relief must not unfairly jeopardize interests of reliance that have taken shape on the basis of the judgment. James Hazard, Civil Procedure (2d Ed.) § 13.14, p. 687." Varley v. Varley, 180 Conn. 1, 4, 428 A.2d 317 (1980); Tirado v. Rivera, 13 S.M.D. 212, 221 (1999); McNealy v. Dancy, 13 S.M.D. 107, 120 (1999); Pullen v. Cox, 9 S.M.D. 134, 138 (1995).

The evidence does not establish that the plaintiff knew her affirmation was untrue. In fact, her testimony that at the time she believed the defendant to be Marcia's father is credible. There is no credible evidence that there was any attempt to induce or mislead the defendant. The defendant has not met his burden of proving fraud. The defendant apparently recognized this, and abandoned the claim.

VIII. MISTAKE

After the expiration of the rescission period, an acknowledgment of paternity "may be challenged in court or before a Family Support Magistrate . . . only on the basis of fraud, duress or material mistake of fact which may include evidence that he is not the father . . ." General Statutes § 46b-172(a)(2); Veilleux v. Burski, 14 S.M.D. 295, 297 (Langley, F.S.M., 2000); see also Yeong Gil Kim v. Magnotta, 49 Conn.App. 203, 209, 714 A.2d 38 (1998); Solomon. v. Keiser, 22 Conn.App. 424, 577 A.2d 1103 (1990); McDonnell v. McDonnell, Superior Court, judicial district of Hartford, doc. No. FA94-0535761 (Bishop, J., February 2, 1999).

The language of the paternity acknowledgment statue is instructive in determining what constitutes a `mistake.' The statute includes "evidence that he is not the father" as a "material mistake of fact." There is no requirement of "mutual mistake." The material mistake can be mutual or unilateral.¹⁹ It is significant that the last quoted clause is preceded by the word "may." Thus the statute does not create a bright line standard but merely allows the court to consider evidence of non-paternity among other factors. Lopez v. Homar, 21 S.M.D. (2008); Rivera v. Gonzales, 16 S.M.D. 440, 452, 2002 Ct.Sup. 11543 (2002); White v. Cordier, 14 S.M.D. 85, 94, 27 Conn. L. Rptr. 365 (2000); McNealy v. Dancy, 13 S.M.D. 107, 118, 1999 Ct.Sup. 12793 (1999).

19 "Prior to Public Act 97-7, this test was worded as `mutual mistake.' Thus the revised language appears to allow the consideration of a unilateral mistake or mutual mistake." Dawkins v. Nash, 15 S.M.D. 356, 366, 7 Conn.Ops. 1302, 2001 Ct.Sup. 14254 (2001).

"Although a party moving to open a judgment must `demonstrate that there is a good and compelling reason for the court to grant the motion . . . the applicable statutes and practice rules `. . . [do] not contain a precise list of what the moving party must show in order to prevail . . .' First Union National v. TDB International, 22 Conn. L. Rptr. 252 (1998). "Mistake is not readily susceptible of general definition. To the extent that a comprehensive definition of the term can be fashioned, it has been said that it signifies an erroneous mental conception which influences a person to act or to omit to act." Guaranty Bank Trust Co. v. Dowling, 4 Conn.App. 376, 379-80, 494 A.2d 1216, cert. denied, 197 Conn. 808, 499 A.2d 58 (1985).

"Mutual mistake has been held to exist where both parties are mutually mistaken about the same material fact. Buol Machine Co. v. Buckens, 146 Conn. 639, 641, 153 A.2d 826 (1959); Dainty Rubbish Service, Inc. v. Beacon Hill Association, Inc., 32 Conn.App. 530, 537, 630 A.2d 115 (1993); see also Harlach v. Metropolitan Property Liability Ins. Co., 221 Conn. 185, 190, 602 A.2d 1007 (1992). Mutual mistake is "`one that is common to both parties and effects a result that neither intended. Whether there has been such mistake is a question of fact.' (Citation omitted; internal quotation marks omitted.) Regis v. Connecticut Real Estate Investors Balanced Fund, Inc., 28 Conn.App. 760, 765, 613 A.2d 321, cert. denied, 224 Conn. 907, 615 A.2d 1048 (1992); see also Dainty Rubbish Service, Inc. v. Beacon Hill Assn., Inc., 32 Conn.App. 530, 537, 630 A.2d 115 (1993) (`mutual mistake exists where both parties are mutually mistaken about the same material fact')." Rodriguez v. State, 76 Conn.App. 614, 624-25, 820 A.2d 1097 (2003).

Even where the alleged mistake is unilateral, the case law suggests that it must be a mistake of fact preceding or contemporaneous with the judgment and unknown by the moving party at the time. There is a sense that the mistake must be more than simple "buyer's remorse" or a change of mind or attitude subsequent to the event. In the present case, it is difficult to detect a genuine mistake of fact on the part of the defendant.

In order for these events to rise to the status of a mistake sufficient to overturn the paternity acknowledgment, one would have to first determine that there was some kind of contract or representation on the part of the plaintiff that her sexual relationship with the defendant was exclusive.

After all, the parties were not married, and there is no basis, absent a specific agreement or representation, for the defendant to claim such an understanding. The defendant claims that the plaintiff did make such a representation, but the evidence is not clear and convincing. Rather, it appears that the defendant simply assumed that the sexual relationship was exclusive. In view of the four-month hiatus in their sexual activity, that assumption by the defendant was not reasonable in the context of a decision as important as acknowledging paternity.

"The acknowledgment procedure does not require the mother to verify the basis of her nomination of a putative father. She is under no legal obligation to divulge her sexual history to the defendant or to the party supervising execution of the affirmation. In fact, in view of the fact that the parties were never married to each other, there is no legal obligation of either party to maintain sexual exclusivity." Valentin v. Rodriguez, 21 S.M.D. (2007); Brown v. Cain, 21 S.M.D. (2007); Martin v. Harrell, supra, 16 S.M.D. 314, 2002 Ct.Sup. 6995 (2002); Joseph v. Lilburn, 14 S.M.D. 337, 343 (2000). In this day and age any expectation of exclusivity among sexually active unmarried persons is implausible.

Moreover, the plaintiff has consistently claimed that she believed that the defendant was Marcia's biological father. When the defendant announced the results of the surreptitious DNA test he had undertaken in Georgia, the plaintiff's response was disbelief. The defendant interprets this as a continuation of the plaintiff's fraud. But it is precisely that reaction that convinces the court that the plaintiff, up until that time, was certain that the defendant was the biological father. The court finds credible the plaintiff's explanation that she did not believe she could be impregnated by rape. But even if this was not so, the acknowledgment does not require the plaintiff to prove the facts affirmed.

The timing of Marcia's birth and the period of time during which the plaintiff and the defendant were apart should have provided the defendant, in the exercise of reasonable care, with cause to seek a blood grouping test. The hearing included significant debate regarding the timing of this interlude, but it appears to have lasted about four months. Marcia was born on March 3, 1987. A normal, full-term pregnancy would place the time of conception as right smack in the middle of the interlude. If biological parentage mattered to the defendant, he had ample warning to abstain from signing the acknowledgment and to seek blood grouping and HLA tests that were available at the time. It is also apparent that the defendant's decision to forego a trial and paternity testing was not taken on the heat of the moment. He did not sign the acknowledgment in the hospital or in the immediate aftermath of the birth. In fact, the time line was that he executed the acknowledgment almost a year after Marcia's birth and several months after he had separated from the plaintiff. The defendant had reason and ample opportunity to assure that he was the biological father if that issue mattered to him. Instead, the defendant's actions yielded the result he apparently intended — that he became the legally recognized father of Marcia. There was no mistake on the part of the defendant that would support opening of the judgment.

The mother's part of the equation is different. Although she had the same ability to count months as did the defendant, she had been subjected to the trauma of a rape. She was convinced, or convinced herself, that she could not become pregnant by rape.²⁰ She believed that she had an ongoing relationship with the defendant, notwithstanding the four-month interruption. Unfortunately, she was mistaken in her understanding. "There is no bright line standard as to what constitutes a `mistake' sufficient to confer jurisdiction on a court to open a judgment after four months." McNealy v. Dancy, 13 S.M.D. 107, 118 (1999). The court finds that there was unilateral mistake, not on the part of the defendant, but on the part of the plaintiff. Accordingly, the court does have jurisdiction to open the paternity acknowledgment.

20 Just as it is difficult in this day and age to believe that a putative father would gamble his future on an assumption or even a declaration of sexual exclusivity, it is similarly difficult to believe that in this day and age, a woman would be naive enough to assume or believe that she could not get pregnant through a rape. The difference, however, is that a rape is likely a traumatic, horrific event. The plaintiff's reaction may be a matter of denial rather than lack of knowledge. The court bases its finding that the plaintiff's claim is credible on the description by both parties of her reaction in 2000 to the DNA results evincing disbelief and shock, on her demeanor on the witness stand, and the candor and pathos of her affidavit filed with the probate court in 2000. (Defendant's Exhbit E.) in one excerpt from that document, Ms. Eubanks stated: "But I never in my live (sic) thought she would be the result of a rape. How do you tell a thirteen year old that the man she knew all her life isn't her father after all, but her real father is a rapist."

This finding provides the court with authority under the statutes and common-law to open the judgment in this case, but does not compel a particular result. The statutes merely permit the court to exercise its discretion. There was unilateral mistake on the part of the plaintiff mother, but she not asking that the acknowledgment be opened.

"We are directed by our higher courts to interpret `each statute in a manner that will not thwart its intended purpose . . .' In re William D., 284 Conn. 305, 317, 933 A.2d 1147 (2007); Kelly v. New Haven, 275 Conn. 580, 881 A.2d 978 (2005). A fair and thoughtful reading of the acknowledgment statute must lead to the conclusion that an acknowledged paternity is not to be undone for trivial, petty or transient `mistake' but only for `strong reasons . . . [where the court] would feel . . . bound in duty to do so.' McCulloch v. Pittsburgh Plate Glass Co., 107 Conn. 164, 167, 140 A. 114 (1927)." Lopez v. Homar, 22 S.M.D. (2008). The absence of diligence on the part of the defendant, the considerable passage of time, the devestation that these proceedings have already wrought on all the parties, but particularly Marcia, and additional substantial countervailing reasons to leave the acknowledgment in place discussed subsequently, impel the court in the exercise of its discretion to hold that the unilateral mistake of the plaintiff is not so compelling that the court feels duty bound to open the acknowledgment. Instead, consideration of the full scope of this matter convinces this court that duty requires that the motion to open be denied.

IX. INTEREST OF THE CHILD

Connecticut has long recognized that children have a separate and independent interest in family relations matters. In re Bruce R., 234 Conn. 194, 209-10, 662 A.2d 107 (1995); Nye v. Marcus, 198 Conn. 138, 502 A.2d 869 (1985); Guille v. Guille, 196 Conn. 260, 492 A.2d 175 (1985); Salvio v. Salvio, 186 Conn. 311, 441 A.2d 190 (1982); Yontef v. Yontef, 185 Conn. 275, 440 A.2d 899 (1981). "Our Supreme Court has recognized that both the father and the child in a paternity proceeding have an interest in seeing that their rights to companionship, care and custody are accurately adjudicated." (Citations omitted.) Ragin v. Lee, supra, 78 Conn.App. 861. "Furthermore, our Supreme Court has considered the child's interests in that regard to be especially strong. Lavertue v. Niman, 196 Conn. 403, 409, 493 A.2d 213 (1985)." Foster v. Smith, 91 Conn.App. 528, 534, 881 A.2d 497 (2005).

Our case law suggests consideration of a number of factors in analyzing the best interests of minor children in the context of a motion to open paternity determinations. Such factors may include: "(1) the genetic information available . . . (2) the past relationship of the [child to the legally established] father . . . (3) the child's future interests in knowing her parental biology . . . (4) the child's [potential] emotional and financial support from her biological father . . . (5) any potential harm that the child may . . . suffer by disturbing the paternity judgment, including loss of parental relationship and loss of financial support." Rivera v. Torres, 21 S.M.D. (Wihbey, F.S.M., March 27, 2007); Weaver v. Sloane, 20 S.M.D. 42 Conn.L.Rptr. 63, 2006 Ct.Sup. 16477 (Wihbey, F.S.M., Sept. 7, 2006).

"Support is one of the `best interest' considerations the court must consider. In re Bruce R., 234 Conn. 194, 210-12, 662 A.2d 107 (1995); In Interest of K.J.K, 396 N.W.2d 370, 371-72 (Iowa App. 1986); In Interest of A.B., 151 Wis.2d 312, 322, 444 N.W.2d 415 (Wis.App. 1989)." Wright v. Holland, 21 S.M.D. (2007). "It clearly is not in a child's best interest to allow a defendant to revoke his paternity at any time during the child's life." Dawkins v. Nash, supra, 15 S.M.D. 356, 369 (2001).

"[S]uch `fundamental interest' does not always automatically translate to a particular child's best interests equating to biological parentage. It is difficult to imagine how potentially establishing through genetic testing that [a child] was conceived as the result of a rape would be in her best interests." Mauro v. Covino, 23 S.M.D. (2009). In the present case, pursuit of an unidentified assailant from twenty-four years ago for either parentage or financial recovery is impossible and undesirable.

Normally, the court would place substantial weight on the opinion of the child's counsel and guardian ad litem. See, Cruz v. Hudson, 16 S.M.D. 138, 153 (2002); Morales v. Rios, 15 S.M.D. 24, 32 (2001); Hemingway v. Jones, 15 S.M.D. 103, 110 (February 16, 2001, Burt, F.S.M.); and Wright v. Holland, Superior Court, judicial district of New Haven at New Haven, Docket No. FA930347738 (December 12, 2007, Lifshitz, F.S.M.). In the present case, however, the child is no longer a minor and although invited to do so, she did not participate in the hearings before this court. Although Marcia is now an adult, many of the considerations that arise when a child is a minor do not disappear upon reaching the age of majority. Accordingly, the court finds it appropriate to consider such "best interest" factors as may still be applicable.

As the result of DNA tests in 2000, the genetic information available demonstrates that the defendant is not Marcia's biological or genetic father. Until the defendant had the paternity test results in hand, the defendant and Marcia maintained what appears to be a good long distance father-daughter relationship with Marcia spending summers and other vacation time with the defendant and his family in Georgia and the defendant's parents in Alabama.

The defendant claims the relationship changed after the DNA results were known. However, his testimony was inconsistent and lacking in credibility. While it is not surprising that the relationship changed, the father-daughter relationship continued. He visited Marcia in Connecticut on at least one occasion. Marcia vacationed with her grandparents in Alabama, but included visits to the defendant and his family in Georgia. They have maintained telephone contact. And, there is his written declaration of undying love and care for Marcia. (Plaintiff's Exhibit 1.) In March 2006 the defendant filed the motion to open and in June he filed the damages case.

Factors relating to any potential relationship with the true biological father are non-starters in this case. First of all, and notwithstanding innuendo from the defendant, the plaintiff does not know the identity of the rapist. Even if she did, the event occurred twenty-four years ago. Establishment of paternity is precluded by the eighteen-year statutes of limitations. Moreover, there is no reason why Marcia would want to establish a relationship with an assailant who sexually assaulted her mother. Therefore, factors such as potential inheritance, life insurance benefits, social security benefits, financial support, family relationships or medical history connected to the biological father are irrelevant in this case.

The same factors, however, do exist, or at least potentially exist with regard to the defendant. Contrary to the defendant's assertion, our law does not limit the term "father" to a biological father, but specifically includes a man who executes an acknowledgment of paternity. General Statutes § 45a-604.²¹ Whether or not the defendant chooses to disinherit Marcia or names her as co-beneficiary of any life insurance is, of course, up to him, and as an adult, there would be no future financial support and social security benefits would not be a factor. However, it is clear that Marcia continues to regard the defendant as her father and his family as her family. Although there was conflicting testimony as to frequency, she has continued to visit with his parents in Alabama and his family in Georgia. In addition, he claimed to provide clothing for Marcia and that for her birthday and Christmas he always sent cards and gifts. As recently as November 2005, in his written statement prepared for the "Fair Hearing" the defendant stated: "I'm sure I will always be a part of her life. Since day one I have never turned my back on her. Whatever she's needed or wanted I've been there." (Plaintiff's Exhibit 1.) The court finds this hand written statement to be an accurate reflection of the defendant's relationship with Marcia and more credible than his more recent self-serving testimony to the contrary.

21 General Statutes § 45a-604 provides, in relevant part: "(2) `Father' means a man who is a father under the law of this state including a man who, in accordance with section 46b-172, executes a binding acknowledgment of paternity and a man determined to be a father under chapter 815y."

To be sure, the defendant's relationship with Marcia was imperfect, and the events of 2000, 2005 and the present, have and will inflict further damage. But the defendant is the only father Marcia has ever known, or will ever know. After all that has transpired, it would be cruel to inflict upon her a termination of the legal relationship. The best interests of Marcia are incompatible with opening the paternity acknowledgment.

X LACHES

The defendant has consistently and vigorously attempted to thwart any consideration of equitable responses to the motion to open. This issue was addressed earlier in this decision in Part IV D. He has been most vehement in attempting to avoid consideration of laches. This is undoubtedly because this case presents such a clear and obvious example of laches.²²

22 In addition to his jurisdictional argument, the defendant has repeatedly objected to the court considering laches because the State and the plaintiff failed to plead laches as an affirmative defense. He relies on Practice Book § 10-50. If this matter were solely an issue of an attempt to raise laches as a defense to a complaint or a reply to a counterclaim, the defendant would be correct. In fact, as will be discussed subsequently, the defenses of laches and estoppel are unavailable to the parties in the damages claim precisely because they were not pleaded. However, the primary matter before the court is a motion to open. Our practice rules do not require a responsive pleading to contest a motion.

"Laches consists of an inexcusable delay which prejudices the [opposing parties]." Fromm v. Fromm, 108 Conn.App. 376, 385-86, 948 A.2d 328 (2008); Bozzi v. Bozzi, 177 Conn. 232, 239, 413 A.2d 834 (1979); Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 685, 116 A.2d 906 (1955); Brock v. Cavanaugh, 1 Conn.App, 138, 140, 468 A.2d 1242 (1984); Lownds v. Lownds, 41 Conn.Sup. 100, 551 A.2d 775 (1988); Lynk v. Lynk, 11 S.M.D. 233, 235; Thomas v. Ah Tau Ah Nee, 8 S.M.D. 135, 139 (1994); Samatowitz v. Samatowitz, 4 S.M.D. 30 (1990). "The defense of laches, if proven, bars a [party] from seeking equitable relief." Caminis v. Troy, 112 Conn.App. 546, 552, 963 A.2d 701, cert. granted on other grounds, 291 Conn. 909, 969 A.2d 171 (2009).

"Laches consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the [opposing parties] . . . The mere lapse of time does not constitute laches . . . unless it results in prejudice to the [opposing parties] . . . as where, for example, [a party] is led to change his position with respect to the matter in question." (Citations omitted; internal quotation marks omitted.) Papcun v. Papcun, 181 Conn. 618, 620-21, 436 A.2d 282 (1980); Kalinowski v. Kropelnicki, 92 Conn.App. 344, 352, 885 A.2d 194 (2005); Mejias v. Sebastian, 18 S.M.D., 2004 Ct.Sup. 18162 (Lifshitz, F.S.M, December 1, 2004). See also Perkins v. Perkins, 3 Conn.App. 322, 487 A.2d 1117 (1985); Angelus v. Angelus, 20 Conn. L. Rptr. 252 (1997); Commissioner of Social Services v. Fronterotta, 19 S.M.D. 2004 Ct.Sup. 15957, 15958 ( McCarthy, F.S.M, 2004); Oquendo v. Negron, 19 S.M.D. 2004 Ct.Sup. 13382, 13388 (McCarthy, F.S.M, 2004); State v. Barr, 19 S.M.D. 2004 Ct.Sup. 13302, 13307 (McCarthy, F.S.M, 2004); Rivera v. Gonzales, 16 S.M.D. 440, 452, 2002 Ct.Sup. 11543 (Lifshitz, F.S.M, 2002).

"Whether the issue was actually litigated is immaterial in view of the necessary conclusion that there was full opportunity to litigate it . . .' Jackson v. Irving Trust Co., 311 U.S. 494, 503, 61 S.Ct. 326, 85 L.Ed. 297 (1941). Perkins, supra, 3 Conn.App. 327; Commissioner of Social Services v. Fronterotta, 19 S.M.D 2004 Ct.Sup. 15957, 15958 (McCarthy, F.S.M, 2004); Oquendo v. Negron, 19 S.M.D. 2004 Ct.Sup. 13382, 13388 (McCarthy, F.S.M, 2004); State v. Barr, 19 S.M.D 2004 Ct.Sup. 13302, 13307 (McCarthy, F.S.M, 2004); Rivera v. Gonzales, 16 S.M.D. 440, 452, 2002 Ct.Sup. 11543 (Lifshitz, F.S.M, 2002). See also Pagani v. Davis, Superior Court, judicial district of Hartford/New Britain at Hartford, doc. No. 602649 (Kaplan, J., July 18, 1991); Bleidner v. Searles, 19 Conn.App. 76, 561 A.2d 954 (1989); White v. Cordier, 14 S.M.D. [85], 27 Conn. L. Rptr. 365 (2000)." Wright v. Holland, 21 S.M.D. (2007).

In Wright this court determined that "[t]he defendant's delay was not excusable and prejudiced the interests of the child and the state. Castonguay v. Plourde, 46 Conn.App. 251, 265, 699 A.2d 226, cert. denied, 243 Conn. 931, 701 A.2d 660 (1997); White v. Cordier, 14 S.M.D. 27 Conn. L. Rptr. 365, 2000 Ct.Sup. 6486 (2000); Joseph v. Lilburn, 14 S.M.D. (2000). [Thus] [t]he defendant [was] barred from opening the paternity acknowledgment by laches." Wright v. Holland, supra, 21 S.M.D.

This case presents what amounts to double laches. First, the defendant took no action with regard to whether or not he was the genetic father of Marcia until she was twelve years old. If it is not plausible that the defendant overlooked the timing of the pregnancy when he signed the acknowledgment, it is also a stretch that in the ensuing years he took no action. In particular, he had a three-year window in which to seek a review of the acknowledgment, but failed to do so. One perceives little prejudice to the plaintiff during that period, but enormous prejudice to Marcia, who grew up secure in the knowledge that she had a father in Georgia, who professed to love and care for his daughter.

The failure of the defendant to move to open the judgment after the DNA tests came to light in 2000 is inexplicable. There is, of course, no guarantee that a court would have granted a motion to open a paternity acknowledgment for a child about to turn thirteen had he filed then, but he did not even try to file. Furthermore, the change of name petition in the Probate Court gave him an opportunity to petition for termination of his parental rights.

Instead, the defendant contacted Support Enforcement Services. Again, considerable time was expended at the hearing, and in the preliminary proceedings regarding who the defendant contacted, and what assurances he was allegedly given. The defendant's testimony was self-serving and unreliable. The evidence that anyone in Support Enforcement Services or the Department of Social Services made any statement that could reasonably be interpreted as an assurance that the Acknowledgment was opened or void is unconvincing. Most importantly, the defendant has failed to establish that either agency had any affirmative duty to take action to open the Acknowledgment. His alleged reliance on the State really establishes nothing more than reinforcement of the lack of diligence and negligence of the defendant — that is assuming that even at that point in the proceedings he really wanted to divest his fatherhood of Marcia.

In the present case, the defendant did not exercise reasonable diligence by filing a motion to open in court. Instead, the defendant claims he called Support Enforcement Services and was told they would take care of it. It was not until after the child's eighteenth birthday and apparently only because of the seizure of his assets in 2005 that the defendant hired an attorney and filed the motion to open presently before the court. The record indicates that the defendant filed the motion to open on March 10, 2006, despite the fact that he knew he was not the child's father when he received the first round of paternity test results. The report finding the probability of paternity is 0% is dated August 31, 1999. A second DNA test reporting the same probability of paternity is 0% was done on April 14, 2000. His delay was not excusable and did prejudice the interests of the child and the state. See Castonguay v. Plourde, 46 Conn.App. 251, 265, 699 A.2d 226, cert. denied, 243 Conn. 931, 701 A.2d 660 (1997); Rivera v. Gonzalez, 16 S.M.D. 2002 Ct.Sup. 11543 (2002); White v. Cordier, 14 S.M.D. 27 Conn. L. Rptr. 365, 2000 Ct.Sup. 6486 (2000); Joseph v. Lilburn, 14 S.M.D. (2000).

The events of 2005 further reinforce the appropriateness of applying laches. The seizure of family assets was as sure an indication as any that the defendant had not been relieved of his parental obligations toward Marcia. Even then, he did not immediately file a motion to open. He filed for a "Fair Hearing" to contest the seizure. In his statement (Plaintiff's Exhibit 1) he revealed: "I can truly say that I never reopened this case because I have been fulfilling my fatherly duties to Marcia personally." (Emphasis added.) This statement belies his claims that he wasn't aware that an opening of the Acknowledgment was required to sever his parental obligation. Furthermore, it is a reasonable inference from that quote, as well as his written statement as a whole, that his real objective had nothing to do with turning his back on Marcia, but had everything to do with money.²³ Any disclaimer by the defendant that this "was never about paying a bill" is negated by his filing of the action for monetary damages which is now consolidated with this case, and the fact that he named both Ms. Eubanks and Marcia as defendants in that action.

23 The defendant, in his statement, wrote: "The levy against my accounts has affected us greatly, that being my wife of 16 years my 2 children 14 10 years of age." It is not hard to imagine that the abrupt seizure of assets would have indeed disrupted the defendant and his family. Testimony at the hearing suggested that a total of $18,661.60 was seized from the defendant's accounts.

It is of no small concern that the defendant paid very little of his court-ordered child support over the years. Of the approximately seventeen years of support payments due after the entry of the modest $50 per week support order, the evidence suggests that he was delinquent in an amount equivalent to about fourteen years of support payments prior to the seizure.

The defendant is barred from opening the paternity judgment by laches.

CT Page 9628

XI. ESTOPPEL

Our Supreme Court has held that the trial court had acted properly when it equitably estopped the defendant husband from denying paternity of the wife's older child in two cases, W. v. W. (I), 248 Conn. 487, 728 A.2d 1076 (1999) and W. v. W. (II), 256 Conn. 657, 779 A.2d 716 (2001). In each case (which involve the same parties), the trial court ruled against a man who, in the first case claimed, and in the second case proved by genetic test results, that he was not the father of the child for whom his former wife sought support. The court held him to be equitably estopped.

[A] claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury . . . It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge." (Internal quotation marks omitted.) Sablosky v. Sablosky, 72 Conn.App. 408, 414-15, 805 A.2d 745 (2002).'" Riscica v. Riscica, 101 Conn.App. 199, 921 A.2d 633 (2007). See W. v. W., 248 Conn. 487, 504-05, 728 A.2d 1076 (1999) (concluding that man who was not biological father was estopped from denying paternity for purposes of child support). In the present case, as in W. v. W., supra, the defendant failed to exercise due diligence even upon discovering the truth and is estopped from denying paternity.

In W. v. W., 248 Conn. 487, 505, 728 A.2d 1076 (1999), the Supreme Court set forth guidelines outlining when a court properly may estop a party from denying paternity and the appurtenant child support obligations. In that case, the husband, who was not the biological father, consistently had treated the child as his daughter. The husband had always acted as if he were the father of the child, supplying her with emotional and financial support throughout her lifetime. Id., 504. In addition, his actions had induced the child and her mother to believe that he would always emotionally and financially support the child as his own. Id. Also, the child and mother had relied on those assurances to their present and future detriment. Id. The trial court had also relied upon the fact that the defendant's actions had interfered with the plaintiff's ability to pursue the biological father for child support. Id., 505.

The present case is distinguishable from W. v. W. In the present case, there is no biological father waiting in the wings. In this case, the plaintiff mother may have had some reliance on the defendant's financial and emotional support, but this reliance surely ended in 2000. However, it is a central fact that Marcia, if not the plaintiff, has relied on the father-daughter relationship. The deleterious effects of severing that relationship have already been discussed in Part X on laches, supra, and need not be repeated. While a degree or two less convincing than in W., the court holds that the defendant is estopped from denying paternity of Marcia and from avoiding his support arrearage. See also Worthy v. Wyatt, 40 Conn.L.Rptr. 379, 2005 Ct.Sup. 15547 (Boland, J., December 6, 2005) (mother estopped from challenging paternity of nonbiological but acknowledged father who had held himself out as father to the child involved here for more than seven years).

In Agarwal v. Agarwal, 2005 Ct.Sup. 7241 (B. Fischer, J., April 22, 2005), the court held that the participation in a prior modification conceded the validity of the judgment and estopped the party from thereafter challenging the judgment. "`In general a person who would ordinarily be entitled to apply for the vacation of a judgment may waive the right to such relief or be estopped by his conduct to ask for it.' 49 C.J.S. 457, Judgments § 330 (1997). `The right to have a judgment opened on the ground of fraud may be waived by the party injured, or he may be estopped by his subsequent conduct to apply for such relief.' Id. `Waiver or estoppel generally results . . . where the party against whom an interlocutory judgment is taken submits to and ratifies it by participating in the further proceedings in the action . . .'" Id.

"The defendant could not have it both ways. She could not modify a judgment, thereby indirectly assenting to its validity and then retain the right to claim its invalidity if she is not able to work out a favorable settlement." Id., 7243.

XII THE INTEREST OF THE STATE OF CONNECTICUT A. STANDING AND AUTHORITY OF THE ATTORNEY GENERAL

Although statutory authority is clear, counsel for the defendant occasioned to question the State of Connecticut's authority to participate in the proceedings.

General Statutes § 46b-231(t)(3) provides: "The Attorney General shall . . . (3) Represent the IV-D agency in providing support enforcement services in non-TANF IV-D support cases pursuant to sections 17b-179, 17b-745 and 46b-215," and General Statutes § 46b-231(u)(1), which provides: "The Department of Social Services may in IV-D cases (A) bring petitions for support orders pursuant to section 46b-215, (B) obtain acknowledgments of paternity, (C) bring applications for show cause orders pursuant to section 46b-172, (D) file agreements for support with the assistant clerk of the Family Support Magistrate Division, and (E) issue withholding orders entered by the Superior Court or a family support magistrate in accordance with subsection (b) of section 52-362." See also 42 U.S.C. § 654 (requiring each state to adopt plan for administration and enforcement of child support obligations); General Statutes § 17b-179 (creating bureau of child support enforcement within department of social services to implement mandates of 42 U.S.C. § 654); General Statutes §§ 46b-207 and 51-1e (granting authority to establish support enforcement services) and General Statutes § 46b-55(a).

"A person in need of support enforcement services from the state may petition the bureau of child support enforcement pursuant to General Statutes § 17b-179(h). If accepted, the person will be provided with Title IV-D services, including the obtainment of child support orders for minor children. The enforcement of those orders is the responsibility of support enforcement services pursuant to §§ 46b-207 and 51-1e. The attorney general is responsible for representing both the bureau of child support enforcement and support enforcement services pursuant to §§ 46b-231(t) and 17b-179." Pritchard v. Pritchard, 92 Conn.App. 327, 328 n. 1, 884 A.2d 207 (2005), rev'd on other grounds, 281 Conn. 262, 914 A.2d 1025 (2007).

The State of Connecticut has statutory authority to appear and participate in the present action. In fact, this court respectfully disagrees with recent reticence of the Attorney General with regard to the damages claim. Apparently, at one of the previous hearings, the Attorney General was discouraged from participating as a party, because in the damages case the State was not sued as a party, and did not implead itself. First, that action is consolidated into the 1988 case and has become inexorably intertwined. It requires exceptional gymnastics to claim involvement in the one case but not the other. Secondly, the damages action also claims a declaratory judgment that would open and vacate the Acknowledgment of Paternity. It makes no sense for the State to defend the paternity judgment from the motion to open while allowing the damages claim to accomplish the defendant's objective by the back door. Thirdly, the statutes cited make the State a statutory party. Clothing the claim in a shell of tort does not lessen the fact that the case is about child support. Although this decision renders the issue moot, the earlier participation of the Attorney General in the damages case seems appropriate.

CT Page 9631

B. THE STATE'S SUBSTANTIVE INTEREST

"There is no doubt that the State of Connecticut has an interest which would be prejudiced by opening the judgment." White v. Cordier, 14 S.M.D. 85, 27 Conn.L.Rptr. 365 (2000); McNealy v. Dancy, 13 S.M.D. 113, 115, 1999 Ct.Sup. 12793, 12795 (sub nom. Tiffany M. v. Walter D.) "The State's financial interest is not the determining factor but one of many the court must analyze." Joseph v. Lilburn, 14 S.M.D. 337, 354 (2000).

The State has incurred direct out-of-pocket cost of public assistance paid on behalf of Marcia. Although the hearing did not include an accounting of the defendant's arrearage balance, there remain substantial arrears, a portion of which is owed to the State. The defendant also seeks a refund of money already collected by the State under the 1988 support order. General Statutes § 46b-172(d). The refund request is problematic, because even if this court were to open the paternity acknowledgment, the refund is triggered by a finding of non-paternity. A new action would need to be filed, because the vacating of a paternity acknowledgment does not yield a pending action, as would the opening of an adjudicated paternity judgment, but rather a void. In this case, a new action would be barred by the statute of limitations, which precludes a paternity action after a child's eighteenth birthday.

It is also settled law that in addition to its own direct fiscal interest, Connecticut "evinces a strong state policy of ensuring that minor children receive the support to which they are entitled." In re Bruce R., 234 Conn. 194, 209, 662 A.2d 107 (1995). The State also has a parens patriae interest in the welfare of children. Additionally, the State has an interest in supporting the integrity of our judicial branch by advocating finality of judgments where appropriate and likewise to support the integrity of the acknowledgment statute. Parker v. Danshy, 41 Conn. L. Rptr. 245, 2006 Ct.Sup. 7184, 7188 (Resha, J., 2006); Wright v. Holland, 21 S.M.D. (2007).

In this case, opening the paternity acknowledgment is inimical to the substantive interests of the State of Connecticut.

XIII THE DAMAGES CASE

As has already been related, the defendant filed a separate action against the plaintiff mother Vickie Eubanks and named the child Marcia Eubanks as a co-defendant. The action is in four counts, claiming fraud, "theft," negligence, and unjust enrichment. The defendant demands revocation of the acknowledgment of paternity, a judgment of non-paternity, money damages and punitive damages. The action at least in part sounds civil in nature and in fact the complaint utilized a form for civil actions. However, the defendant invoked the court's "general jurisdiction over family matters" and under "case type" filled in the code F 90, which is a family, not civil action. This memorandum has already related the tortuous path the case has tread through the courts, winding up back in the Family Support Magistrate Division.

This second action, now consolidated with the underlying 1988 case, is a rather peculiar matter. In Count One, the defendant seeks "a judicial determination that the defendant is not the biological child" of the defendant. This count seems to simply an effort to do an end run around the existing 1988 case in which paternity is determined, and replicates the defendant's motion to open. The remaining counts raise claims that sound in tort — misrepresentation, fraud, theft, unjust enrichment.²⁴ Although the plaintiff (defendant in the 2006 case) filed an answer, she probably missed the opportunity to raise affirmative defenses, including the statute of limitations, since the time limitation for an action in tort or contract has long since expired.

24 Count Two of the complaint sets forth a cause of action sounding in fraud, theft and misrepresentation as to Vickie Eubanks, Count Three sets forth a cause of action sounding in negligence against Vickie Eubanks and Count Four sets forth a cause of action sounding in mutual mistake of fact and unjust enrichment. The prayer for relief seeks a judgment that the plaintiff is not the father of Marcia Eubank, a judgment revoking the acknowledgement of paternity, money damages, treble damages in accordance with General Statutes § 53a-119, attorney fees and punitive damages.

Normally, this court would not hear a matter that involves the usual civil jurisdiction invoked by tort claims. However, the Connecticut Supreme Court has held that bringing a case in the wrong division of the Superior Court implicates venue, not subject matter jurisdiction. See Savage v. Aronson, 214 Conn. 256, 263, 571 A.2d 696 (1990). Thus the appropriate remedy would be to transfer the matter to the civil division, at least as to counts two, three and four. One more time, the court confronts the history of this case. The matter wandered through civil and family sides of the court, and ultimately was remanded to this court with what this court takes to be a directive to hear and decide it.²⁵

25 The court discussed the issue with the attorneys at the hearing and stated that "this case has gone up and down and up and down between the Superior Court and this court. It's, been pending for three years, okay. And the last thing that happened, or the last two things that happened in Superior Court as I recall my review of the file is that a judge essentially, I think . . . reheard what was a motion to transfer to the Superior Court that was granted, turned around and sent it back to the magistrate court, which was what resulted in the first hearing. So that was a judge saying, no, do it in magistrate court, both files, okay. And then there was the appeal, and that judge, a second, a different judge in the Superior Court remanded it for a new hearing before the magistrate. So I have two Superior Judges telling me hear this thing, okay." (Transcript p. 28.)

In these unique circumstances, however, it may not matter. A recent case in the civil division of the Superior Court denied a claim by a nonbiological father for reimbursement from a previously undisclosed biological father under theories quite similar to the present case. Fischer v. Zollino, 2010 Ct.Sup. 782 (Jones, J., Dec. 8, 2009) [ 49 Conn. L. Rptr. 33]. Judge Jones found no authority under Connecticut law to allow recovery under such theories, and also relied on findings from sister states, including State, Dept of Revenue v. Wetherelt, 931 P.2d 383, 387 (Alaska 1997); and Day v. Heller, 264 Neb. 934, 935, 653 N.W.2d 475 (2002).

This court declines to replicate Judge Jones' thorough and incisive review of those cases, but will relate a particularly succinct comment in a third case cited: "The effect of [the court's] holding in this case . . . is that if a man's willingness to parent his non-marital partner's child is conditioned on its being his biological offspring, he proceeds at his own risk in failing to verify his paternity at an early stage in the child's life . . . If [a child] proves to be genetically unrelated to its putative father . . . he will not be able to enlist the aid of the courts in seeking reimbursement from the child's biological parents from the contributions he has made to its support." McBride v. Boughton, 123 Cal.App.4th 379, 395, 20 Cal.Rptr.3d 115 (2004).

In the end, the defendant's damage claim relies on his claim that he is not Marcia's father. After full hearing, this court has denied the motion to open the paternity acknowledgment. Regardless of biology, the defendant remains the lawful father of Marcia Eubanks.

As Marcia's father, he was responsible for her support and maintenance with whatever contribution the primary residential parent made. Not only has he no claim for reimbursement, but he remains liable for the balance of the unpaid accrued child support arrearage.

On the damages claim, judgment enters for Vicki Eubanks and Marcia Eubanks²⁶ on all counts.

26 The defendants in that action, but in Vicki Eubanks's case, referred to as the plaintiff in this memorandum.

XIV. RESCRIPT

For all of the reasons stated herein, the motion to open the paternity judgment created by the 1988 Acknowledgment of Paternity, is hereby denied.