Summary
In Parker v. Dansby, 41 Conn. L. Rptr. 245, 2006 Ct.Sup. 7184, 7188 (Resha, J., 2006), the Superior Court affirmed the judgment of the Family Support Magistrate opening a paternity judgment for a seventeen-year-old child.
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No. FA89-0092582S
April 18, 2006
MEMORANDUM OF DECISION
Presently before the court is the state's appeal from a decision of the Family Support Magistrate, Wihbey, M., rendered on June 24, 2005, wherein the defendant-respondent's motion to open the judgment of paternity, entered on January 12, 1990, was granted.
The relevant factual and procedural history of the case is as follows. An action for paternity was filed on October 19, 1989, by the Department of Human Resources of the State of Connecticut before the family support magistrate for the judicial district of Waterbury. The complaint alleged that the defendant, Shawn Dansby, was the father of a child born to Tricia R. Parker on December 21, 1988. The defendant was served by abode service, and on the return date of December 8, 1989, the magistrate, Lifshitz, M., continued the case to January 19, 1990, for scheduling and payment of blood tests. The defendant entered a pro se appearance on the return date but failed to return to court on January 19, 1990, when the court entered a default judgment against him. He was adjudged the father of the minor child, found to be in arrears for support and maintenance in the amount of $5,300 and ordered to pay $105 per week support and $10 per week on the arrearage to the State of Connecticut.
From that time to the present, the file is replete with numerous appearances by the defendant dealing with the issue of support. Although the defendant has always alleged, both inside and outside of the courtroom, that he was not the father of the minor child and never established or maintained a parental relationship with the minor child, he never filed a formal motion to have the judgment of paternity opened until he filed the present motion on November 4, 2004. The defendant generally represented himself and whenever he raised his belief that he was not the father of the minor child, he was told that there was a judgment saying he was the father and that if he didn't pay the child support, he would be incarcerated. Despite his early and often protestations, the blood tests were never performed. The defendant was not mistaken in his belief that he was not the father of the minor child, but rather in his belief that he had no alternative but accept the judgment as final and binding.
The primary reason that the defendant filed his motion to open the judgment at this time is that in March 2004 the Department of Children and Families filed a petition of neglect against the defendant as the father and Parker as the mother of the minor child. During the course of that proceeding, specifically on May 27, 2004, the Superior Court for Juvenile Matters granted the defendant's motion for paternity testing notwithstanding the judgment of paternity that was entered on January 19, 1990. The results of that test clearly indicated that the defendant was not the biological father of the minor child. Thereafter, the defendant filed this motion to open.
On June 24, 2005, the magistrate filed her memorandum of decision wherein she granted the motion to open on the ground, among other reasons, that a material mistake of fact occurred when the judgment was entered against the defendant. On July 7, 2006, the State of Connecticut filed this appeal.
"A person who is aggrieved by a final decision of a family support magistrate is entitled to judicial review by way of appeal under this section." General Statutes § 46b-231(n)(1). The court will first determine whether the magistrate's decision in this case presents a judgment or decision from which an appeal can be taken. "The two part test for aggrievement by a particular decision is well established. First, the person claiming to be aggrieved must have a specific, personal and legal interest in the subject matter of the decision, as distinguished from the general interest of the community as a whole. Second, the person must establish that his or her interest has been specially and injuriously affected by the decision." Newman v. Newman, 235 Conn. 82, 103, 663 A.2d 980 (1995). The court finds that the State of Connecticut is aggrieved for the purposes of this appeal.
General Statutes § 46b-231(n)(7) provides that "[t]he Superior Court may affirm the decision of the family support magistrate or remand it for further proceedings. The Superior Court may reverse or modify a decision if "substantial rights of the appellant have been prejudiced because the decision of the family support magistrate is: (A) in violation of constitutional or statutory provisions; (B) in excess of the statutory authority of the family support magistrate; (C) made upon unlawful procedure; (D) affected by other error of law; (E) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." § 46b-231(n)(7).
The state appeals the decision of the family support magistrate on the ground that the magistrate's decision is arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. The state argues that: a) the family support magistrate did not have the authority to open the paternity judgment without clear and convincing evidence of fraud, duress, or mistake of fact, and that only a material mistake of fact can be a possible basis for opening this judgment as there has never been any suggestion or evidence of fraud or duress; b) a material mistake of fact would only exist if the defendant actually believed that the minor child was his biological son and later discovered that he was mistaken and, since the defendant always maintained that the minor child was not his son, a material mistake of fact does not exist; c) even if the defendant is able to prove that a material mistake of fact existed, he should be barred from opening the judgment by laches and that the defendant's delay in filing this motion to open was inexcusable because the defendant had numerous opportunities to raise the issue of paternity since he filed his written appearance in 1989; and d) the child's legal interests were prejudiced because he is now left with less than two years to initiate legal action to establish paternity, any evidence of paternity is stale, and he is limited to only three years of past due support.
The minor child's attorney also posits that: a) the family support magistrate did not have the authority to open the paternity judgment without clear and convincing evidence of fraud, duress, or mistake of fact and that since the defendant always maintained that he was not the minor's father, a mistake of fact never existed; b) that the magistrate's decision should be overturned because a child has a right to have an identified person established as his father, as this is crucial to the child's sense of self; and c) the judgment should not be opened since there is no one else to point to as the father, the defendant is the only father that the child has ever known and the child has little hope of establishing a father-son relationship with anyone else.
"Connecticut statutory laws and case law generally limit the ability of a respondent to open a judgment of paternity, whether judgment was entered by default or through a voluntary acknowledgment. See Connecticut General Statutes § 46b-172 regarding acknowledgments of paternity (initial three-year rescission period reduced to 60 days by P.A. 97-7), and Connecticut Practice Book Section 17-43 regarding default judgments (four-month rescission period)." Thompson v. Fulse, Superior Court, judicial district of Hartford, Docket No. FA 89 0605982 (July 4, 2004, Colella, F.S.M.). "An acknowledgment [of paternity] . . . may be challenged in court or before a family support magistrate after the rescission period only on the basis of fraud, duress or material mistake of fact which may include evidence that he is not the father, with the burden of proof upon the challenger." § 46b-172(a)(2). "The language of the paternity acknowledgment act is instructive in determining what constitutes a `mistake.' The statute includes `evidence that he is not the father' as a `material mistake of fact.' It is also significant that the clause is preceded by the word `may.' The provision does not create a bright line standard but merely allows the court to consider evidence of non-paternity among other factors." State v. Barr, Superior Court, judicial district of Ansonia-Milford, Docket No. FA 92 0039347 (October 26, 2004, McCarthy, F.S.M).
The state and the minor's attorney cite § 46b-172(a)(2) as the standard for setting aside the paternity judgment, however, the defendant never signed an acknowledgment of paternity. In her decision, Magistrate Wihbey acknowledged that § 46b-172(a)(2) "is inapplicable in the present matter because the judgment was entered after a hearing and an opportunity to have the issue of paternity tried to the court . . . It is cited for purposes of guidance in determining what fact patterns may constitute `material mistake of fact' in setting aside a paternity judgment." State (Parker) v. Dansby, Superior Court, judicial district of Waterbury, Docket No. FA 89 0092582 (June, 24, 2005, Wihbey, F.S.M.) ( 39 Conn. L. Rptr. 768).
The state argues that even if a mistake of fact existed, laches should bar the opening of the paternity judgment because the delay was inexcusable and the child's legal interests have been prejudiced. "Laches consists of an inexcusable delay which prejudices the defendant . . . First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant." (Internal quotation marks omitted.) Kalinowski v. Kropelnicki, 92 Conn.App. 344, 352, 885 A.2d 194 (2005). The defendant's delay was excusable because genetic testing was not ordered until 2004 when the Department of Children and Families filed the petition of neglect. As soon as genetic testing provided the defendant with conclusive proof that he was not the father, he timely filed this motion to open the judgment of paternity. Further, the child's legal interests have not been prejudiced. The child was aware of the results of the genetic test before the defendant filed this motion to open. The minor child (who is now 17 years old) learned that the defendant was not his biological father during the juvenile court proceedings prior to the motion to open and, as indicated by the child's counsel, has no preference, opinion or position on this motion. Consequently, laches does not bar the opening of this judgment.
The attorney for the minor child argues that it is not in the child's best interest to open this paternity judgment. "[A] child's interest in establishing paternity is a fundamental state and federal constitutional liberty interest. The common law recognizes this right and the judicial system must afford the child an opportunity to exercise and protect her interest . . ." (Internal quotation marks omitted.) Andrews-White v. Mitchell, Superior Court, judicial district of Hartford-New Britain, No. FA 95 0710468S (November 13, 1995) ( 15 Conn. L. Rptr. 629, 630) "Any determination that a particular individual is a child's biological father may have profound sociological and psychological ramifications . . . It is in the child's interest not only to have it adjudicated that some man is his or her father and thus liable for support, but to have some assurance that the correct person has been so identified." (Emphasis in original; internal quotation marks omitted.) Ragin v. Lee, 78 Conn.App. 848, 861-62, 829 A.2d 93 (2003).
Transcripts of the testimony before the magistrate and her resulting decision reflect the court's consideration of the relationship between the defendant and the minor child. As stated, the defendant never held himself out as the minor child's father. The contact between them was limited and clearly not in the nature of a parent/child relationship. Also, Parker, who was served with notice of these proceedings, failed to appear and offer a position or testimony.
The magistrate's decision to open the judgment of paternity is not clearly detrimental to the child's best interests. The decision provides assurance that an incorrect individual is not adjudged to be the father when scientific proof exists to the contrary. The child's interests are not served by providing him with a conflicting outcome to this issue, where, for some purposes, the Superior Court has determined that the defendant is not his father, and for other purposes the Superior Court has determined that the same man is his father, all the while scientific testing revealing the former. It is essential that any court consider the effect on a child of the granting of a motion to open, the ordering of a paternity test and/or reaching a finding that there is not a biological relationship between and an adjudged parent and a child. As a result of the paternity test that has been conducted, there is now actual, court-ordered and undisputed evidence that the defendant is not the father of the minor child, and the child has full knowledge of that finding. In this case, the magistrate correctly found that by granting the defendant's motion, the impact on the minor child would not be consequential. In fact, whatever damage that could occur in the very limited relationship between the defendant and the minor child had already occurred as a result of the paternity test ordered in the juvenile court proceedings. Whatever relationship that did exist between them ended with that finding.
Further, the judgments of our courts must make sense. There is no way to reconcile the divergent findings and judgments dealing with these same facts and parties. The State of Connecticut asks the court to respect the finality of judgments yet apparently offered no objection to the motion for paternity testing in juvenile court, which had the potential of disrupting the judgment of paternity entered in the magistrate court in 1990. The state has failed to demonstrate that its substantial rights have been prejudiced by any of the grounds contained in § 46b-231(n)(7).
The trier of fact, the magistrate, has discretion in evaluating the testimony of witnesses and in giving weight to the evidence produced at the hearing. Evidence of nonpaternity can be determinative in deciding whether to open a judgment, see § 46b-172(a)(2), and, as such, opening the judgment based on conclusive proof of nonpaternity was not beyond the magistrate's discretion. The magistrate found that the evidence before the court was sufficient to conclude that a material mistake of fact occurred when the court entered the paternity judgment against the defendant. Given the circumstances of this case, overturning the magistrate's decision would cause the court to indulge in a legal fiction that serves no purpose other than to continue the financial obligations of the defendant.
Upon review, this Court finds that the magistrate has not abused her discretion nor has acted in an arbitrary or unreasonable manner. The analysis of the applicable law by the magistrate was well reasoned and the record is adequate to support her findings and ruling under the unique circumstances of this case.
This appeal by the State of Connecticut is hereby dismissed.