Opinion
No. FA 01-0123272S
February 10, 2005
MEMORANDUM OF DECISION
Pursuant to Connecticut General Statute § 46b-23n, the plaintiff petitions for review of the family magistrate's orders in this case.
Statement of Facts
This post-judgment case was heard before the magistrate on August 25, 2004. At that time the only motion on the docket was the plaintiff's motion for contempt, number 141.00. In the motion, the plaintiff alleged that the defendant was about $5,000.00 in arrears. It is now over $6,000.00. The defendant had filed other motions in this case, coded as motions 131.00, 133.00, 147.00 and 154.00. In these motions the defendant requested only a decrease in the amount of child support he had been ordered to pay.
This case originally went to judgment on July 24, 2002. The court, Swienton, J., ordered the defendant to pay the plaintiff $117.00 a week for support of their two minor children.
At the hearing, the plaintiff appeared pro se. The magistrate entered an order wherein not only was the defendant's support decreased but the plaintiff was ordered to pay to the defendant the sum of $105.00 per week for the support of one minor child plus $10.00 per week on an arrearage. In addition, the defendant was ordered to pay $3.00 per week on an arrearage of over $6,000.00.
On September 20, 2004, the court, Hadden, J., ordered a transcript, with the cost of said transcript to be paid by the State of Connecticut, and suspended the plaintiff's obligation to pay support pending the outcome of the appeal. Said transcript was not provided until January 2005.
It is well established in the law that a trial court cannot act on its own to reduce or award child support. In Guss v. Guss, 1 Conn.App. 356, 361 (1984), the court specifically stated that a trial court cannot "on its own initiative modify alimony or child support orders." Specifically, the court indicated "it is such action that appeals are made of." What needs to be before the court is a proper motion that specifically prays for the relief granted.
In Guss v. Guss, supra, the court cited and relied on the case of Connolly v. Connolly, 191 Conn. 468, 464 A.2d 837 (1983). In that case, which dealt with alimony, there was a proper motion to have alimony increased but there was no motion before the court to terminate alimony. The court attempted to terminate alimony, and the court clearly ruled that it abused its discretion. The reason for the abuse of discretion was that the court, on its own, entered relief, which was not specifically requested in a pleading.
The court's reasoning in Connolly, supra, centered around C.G.S. § 46b-86(b) and the Connecticut Practice Book. The court defined the aforementioned statute as a narrowly written statute and notes that there are certain prerequisites before the court has an authority to modify an order. Id., 477. General Statute § 46b-86(b) specifically states that "the Superior Court may, in its discretion, and upon notice and hearing" (emphasis added), modify an order. It is clear that every motion and pleading must be in writing. Winick v. Winick, 153 Conn. 294, 298-99, 216 A2d 185 (1965). Constructive notice will not do, as a specific pleading is required in order to invoke the authority to change an order. See Connolly, supra.
In the instant case, there was no pleading indicating that support should be awarded to the defendant by the plaintiff. The only motion present before the court was that of a contempt.
Accordingly, the magistrate was without authority to award child support to the defendant or reduce the defendant's child support. There is error. All orders are vacated and the case is remanded for further proceedings.
Jack Fischer, J.