Opinion
No. FA01-0631840
July 19, 2001
MEMORANDUM OF DECISION
The State of Connecticut initiated this paternity case against the named defendant pursuant to General Statutes § 46b-162. The petition alleges that the defendant Kyle L. Roberts is the father of a minor child Kamron L. Romero born August 10, 2000 to the named plaintiff mother Ivelisse Romero. Both parties appeared in court pro se on the return date, June 5, 2001. After a thorough canvass of the defendant, the State proceeded to trial. The State introduced a DNA test indicating a 99.90% probability that the defendant is Kamron's father. The defendant admitted paternity and the court entered a judgment accordingly. After the filing of financial affidavits and further testimony, the court also entered support orders and finds regarding arrearages. At the conclusion of the proceedings the State requested that the defendant be ordered to pay costs, including service of process fees and reimbursement for the cost of the DNA test. The defendant objected to payment of the DNA test.
The court did not order genetic tests in this case. The Department of Social Services ordered genetic testing pursuant to its statutory authority. "In any IV-D support case, . . . in which the paternity of a child is at issue, the IV-D agency shall require the child and all other parties . . . to submit to genetic tests . . . to determine whether or not the putative father or husband is the father of the child, upon the request of any such party." General Statutes § 46b-168a(a). In this matter the test was completed administratively under the auspices of the Department of Social Services before the paternity action was even commenced. The defendant claims that it was the plaintiff, not he, that requested the DNA test. Therefore, he reasons, he should not be required to pay for the tests.
This court finds that it lacks subject matter jurisdiction to order the defendant to pay the costs of the administratively ordered genetic test. The Family Support Magistrate Division is a statutory court and is limited to act within the statutory powers granted to it. Holden v. Skinner, 7 S.M.D. 19, 24 (1993). "The Family Support Magistrate is not a Judge of the Superior Court and does not have full judicial powers, Conn. Constitution, Article Fifth; Article XX of Amendments; Article XXV of Amendments; 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 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." Dalley v. Wineglass, 11 S.M.D. 1, 26 (1997); Jorgensen v. Jorgensen, 1 S.M.D. 34 (1987).
Unlike a judge of the Superior Court, the powers of a Family Support Magistrate to enforce support orders are wholly statutory. General Statutes § 46b-231(m)(1) and (7) . Reynolds v. Allicock, 15 S.M.D. ___, 2001 Ct. Sup. 2456 (2001). Where an action "depends upon statutory authority . . . noncompliance with the statutory requirements implicates subject matter jurisdiction and renders a nonconforming [action] subject to dismissal." Tolly v. Department of Human Resources, 225 Conn. 13, 27, 621 A.2d 719 (1993); McQuillan v. Department of Liquor Control, 216 Conn. 667, 670, 583 A.2d 633 (1990); Tarnopol v. Connecticut Sitting Council, 212 Conn. 157, 163, 561 A.2d 931 (1989); Hillcroft Partners v. Commission on Human Rights Opportunities, 205 Conn. 324, 326-27, 533 A.2d 852 (1987); Chestnut Realty, Inc. v. Commission on Human Rights Opportunities, 201 Conn. 350, 356, 514 A.2d 749 (1986); Basilicato v. Department of Public Utility Control, 197 Conn. 320, 324, 497 A.2d 48 (1985); Exchange Buffet Corporation v. Rogers, 139 Conn. 374, 376, 94 A.2d 22 (1952); Collins v. Beaver, 14 S.M.D. 432, 435, 2000 Ct. Sup. 16290 (2000); Greenwood v. Velsor, 7 S.M.D. 65, 71, 13 Conn.Fam.L.J. 15 (1993).
General Statutes § 46b-231(m)(1) provides in relevant part:
"A family support magistrate in IV-D support cases may compel the attendance of . . . the obligor under . . . a citation for failure to obey an order of a family support magistrate of a judge of the Superior Court."
General Statutes § 46b-231(m)(7) provides in relevant part:
"Family support magistrates shall enforce orders for child and spousal support . . . by citing an obligor for contempt."
"[T]here is no express grant of authority in General Statutes § 46b-168a authorizing the family support magistrates to order the requesting party to reimburse the state for the costs of genetic testing when such testing was ordered by Department of Social Services. Moreover, there is no such express grant of power m the Family Support Magistrate Act." Morrison v. Lindberg, 14 S.M.D. 345, 347, 28 Conn. L. Rptr. 611, 2000 Ct. Sup. 14094 (2000); Figueroa v. Molina, 14 S.M.D. 318, 320, 28 Conn. L. Rptr. 336, 2000 Ct. Sup. 13165 (2000).
"The costs of making the tests . . . shall be paid by the state, provided if the putative father is the requesting party and he is subsequently adjudicated to be the father of the child, he shall be liable to the state for the amount of such costs to the extent of his ability to pay, in accordance with regulations adopted by the Commissioner of Social Services." (emphasis added) General Statutes § 46b-168a(b). The plain language of the statute places the costs of administratively ordered tests on the State except for one specifically limited situation. If the putative father is the party requesting the tests, then he becomes liable to the State for the costs of the test. The statute does not require, or even authorize the court to order this payment .
The full text of General Statutes § 46b-168a provides:
"(a) In any IV-D support case, as defined in subdivision (13) of subsection (b) of section 46b-231, in which the paternity of a child is at issue, the IV-D agency shall require the child and all other parties other than individuals who have good cause for refusing to cooperate or who are subject to other exceptions to submit to genetic tests which shall mean deooxyribonucleic acid tests, to be performed by a hospital, accredited laboratory, qualified physician or other qualified person designated by such agency, to determine whether or not the putative father or husband is the father of the child, upon the request of any such party, provided such request is supported by a sworn statement by the party which either (1) alleges paternity and sets forth facts establishing a reasonable possibility of the requisite sexual contact between the parties, or (2) denies paternity and sets forth facts establishing a reasonable possibility of the nonexistence of sexual contact between the parties.
"(b) The costs of making the tests provided by this section shall be paid by the state, provided if the putative father is the requesting party and he is subsequently adjudicated to be the father of the child, he shall be liable to the state for the amount of such costs to the extent of his ability to pay, in accordance with regulations adopted by the Commissioner of Social Services pursuant to subdivision (3) of subsection (c) of this section. The contesting party shall make advance payment for any additional testing required in the event of a contest of the original test results.
"(c) The Commissioner of Social Services shall adopt regulations, in accordance with the provisions of chapter 54, to establish criteria for determining (1) good cause or other exceptions for refusing to cooperate under subsection (a) of this section, which shall include, but not be limited to, domestic violence, sexual abuse and lack of information and shall take into account the best interests of the child, (2) the sufficiency of the facts establishing a reasonable possibility of the existence or nonexistence of the requisite sexual contact between the parties, as required under subsection (a) of this section, and (3) the ability of the requesting party to pay the costs of the genetic tests in accordance with subsection (b) of this section."
The declaration that a party may be liable for a certain debt is a far cry from authorizing this statutory court to order him to pay that liability. Examples abound. A putative father may contract with a medical provider for pre-natal care of the mother. He is contractually liable to the provider, and the debt is related to the childbirth. Clearly this court has no jurisdiction to order the putative father to pay this debt. Had the legislature intended the Family Support Magistrate to have the authority to order the payment of the genetic test, it could have easily done so.
Nor is it within the power of the court to deem the DNA test a cost of the action. It is noteworthy that in this case, not only was the test ordered outside the jurisdiction of the court, but before the action was even filed. The court can not interpret the phrase "he shall be liable" to usurp a power to order a payment on a debt that predated the filing of the action absent specific statutory authority . "Courts cannot, by construction, read into statutes provisions which are not clearly stated." Houston v. Warden, 169 Conn. 247, 251, 363 A.2d 121 (1975); Jennings v. Hariston, 23 Conn. L. Rptr. 1, 1999 Ct. Sup. 1580, 1582 (1999).
Lest this be viewed as an overly narrow view of the powers of the Family support Magistrate, this court notes that in varying contexts, it has been held or opined that a Family Support Magistrate lacks the power to: continue a contempt citation for monitoring in its own court, Berthiaume v. Berthiaume, 2000 Ct. Sup. 10240, Superior Court, Judicial District of New Haven at New Haven, doc. no. FA98-0412981 (August 11, 2000, McLachlin, J.); hear cases where alimony is the sole support order, Morris-Littlefield v. Littlefield, 1994 Ct. Sup. 6455, Superior Court, Judicial District of Fairfield at Bridgeport, doc. no. FA90-0275015 (June 28, 1994, Thim, J.); order a party to maintain life insurance, Scoggins v. Redd, 1992 Ct. Sup. 7339, Superior Court, judicial district of Waterbury, doc. no. 106445 (August 4, 1992, Harrigan, J.); order payment on a future arrearage, Taitague v. Taitague, 27 Conn. L. Rptr., 2000 Ct. Sup. 4105 (April 10, 2000, Gruendel, J.); order subpoenas (unreported bench ruling not followed in most jurisdictions); grant fee waivers (not generally an issue since reprinting of forms to indicate a signature line for Family Support Magistrates); allocate tax exemptions in motions to modify (unreported bench rulings); grant changes of names of children for whom paternity is determined (unreported bench rulings). The foregoing are by no means an exhaustive list of limitations on the powers of the Family Support Magistrate Division nor is there anything dose to consistency among courts.
The only reported decisions addressing this issue were two decisions issued in 2000 by Family Support Magistrate Denese Chisholm Langley, Morrison v. Lindberg, 14 S.M.D. 345, 28 Conn. L. Rptr. 611, 2000 Ct. Sup. 14094 (2000); and Figueroa v. Molina, 14 S.M.D. 318, 28 Conn. L. Rptr. 336, 2000 Ct. Sup. 13165 (2000). In each case, the court denied the request for the costs of the genetic tests not only because it lacked statutory authority to do so, but because (1) there was no evidence that the Department of Social Services provided any advance notice to the defendant when the test was ordered that he could be held responsible for the costs; (2) the Department of Social Services had failed to establish a "sliding scale" to determine how much of the cost should be paid by an individual in each case as provided by General Statutes § 46b-168a(c)(3); and (3) because the State had failed to provide evidence of the actual costs incurred.
This court is aware that these decisions have been reversed on appeal to the Superior Court. However, in neither case was a memorandum of decision filed to articulate the reasons for reversal. The entire order of the Superior Court reads: "The Decision of the Family Support Magistrate ( Langley, F.S.M.) dated April 17, 2000 is reversed and relief is allowed Pursuant to Conn. Gen. Stat. Sec. 46b-231(n)." There is nothing to guide a subsequent court as what error occurred in the opinions below or what the law the reviewing court relied upon. In fact, the decision may have resulted simply from the failure of the defendant below to brief or argue the appeal. If so, there was no controversy adjudicated. This court can not view these reversals as precedent for the present case.
In a further unusual twist in the case of Figueroa v. Molina the State filed a subsequent "motion for order" essentially conceding that the Superior Court's decision "stated that relief is to be allowed . . . but did not set out specific provisions." The State requested that the Superior Court directly order costs in the amount of $145.50 and that the defendant be held liable for these costs. The Superior Court on June 22, 2001 entered the following order in response to this motion: "So ordered". The obvious question is this: If the original reversal was intended to rule that the Family Support Magistrate Division actually has jurisdiction to grant the request, why did the Superior Court enter a direct order?
This court does respectfully disagree with at least one aspect of Family Support Magistrate Langley's opinions. General Statutes § 46b-168a(c)(3) requires the Commissioner of Social Services to adopt regulations "to establish criteria for determining . . . the ability of the requesting party to pay the costs of the genetic tests." In accordance with this requirement, the Commissioner of Social Services passed a regulation which sets forth the criteria for determining the ability of a requesting party to pay the costs of the genetic tests. Section 46b-168a-1 (c) of the Regulations of Connecticut State Agencies provides the following: "A putative father who requests genetic tests under [General Statutes § 46b-168a] and subsequently acknowledges paternity or is adjudicated to be the father of the child shall be liable to the state for the costs of making such tests if the IV-D agency or family support magistrate finds that such father has sufficient income under [the Child Support and Arrearage Guidelines] to pay current support for such child."
The full text of Regs., Conn. State Agencies, § 46b-168a-1 provides:
"Genetic tests required by IV-D agency
"(a) Good cause for refusing to cooperate
"A party shall have good cause for refusing to cooperate with a genetic testing requirement by the IV-D agency pursuant to subsection (a) of section 46b-168a of the Connecticut General Statutes if such party is exempt from cooperating with the child support program under subsection (c) of section 17b-179(a)-4 of the Regulations of Connecticut State Agencies.
"(b) Factual basis for paternity allegation or denial
"(1) Allegation
"A written affirmation of paternity executed and sworn to by the mother of the child in accordance with subsection (a) of section 46b-172 of the Connecticut General Statutes shall be sufficient to establish a reasonable possibility of the requisite sexual contact between such mother and the putative father of such child for the purpose of supporting a request for genetic tests pursuant to subsection (a) of section 46b-168a of the Connecticut General Statutes.
"(2) Denial
"A sworn statement executed by the putative father of a child whose paternity is at issue that denies paternity and alleges either
"(A) no sexual contact between the putative father and the mother of such child during a reasonable period of time before or after the time of conception or
"(B) non-exclusive sexual contact between the putative father and the mother of such child during a reasonable period of time before or after the time of conception shall be sufficient to establish a reasonable possibility of the nonexistence of the requisite sexual contact between such mother and the putative father of such child for the purpose of supporting a request for genetic tests pursuant to subsection (a) of section 46b-168a of the Connecticut General Statutes.
"(c) Ability to pay genetic testing costs
"A putative father who requests genetic tests under subsection (a) of section 46b-168a of the Connecticut General Statutes and subsequently acknowledges paternity or is adjudicated to be the father of the child shall be liable to the state for the costs of making such tests if the IV-D agency or family support magistrate finds that such father has sufficient income under section 46b-215a-2 of the Regulations of Connecticut State Agencies to pay current support for such child."
The Department of Social Services regulation does not provide for a "sliding scale" when determining ability to pay. However, the statute does not require a "sliding scale." Rather, Department of Social Services has made the determination that if the requesting party is able to pay current support then he is presumed able to pay the total cost of the genetic tests. While it may be argued that this regulation is neither equitable nor what the legislature had in mind, it clearly conforms to the statute.
If this issue was the basis of the Superior Court's reversal, this court agrees with it. However, the Superior Court reversal is not sufficient to confer authority to this Division that the legislature did not grant. Absent clear statutory authority that is not apparent to this court, the request for an order requiring the defendant to pay the costs of the genetic test remains ultra vires .
Practice Book § 18-5 delegates the taxation of costs to the clerk of the court. Although the practice in the Family Support Magistrate Division has been for the court itself to tax costs, a fair reading the practice rule may suggest that the initial taxation of costs should be by the clerk, with a right of review to the court. See City of Danbury v. Dan Investment Corp., 249 Conn. 1, 18, 22, ___ A.2d ___ (1999); Triangle Contractors, Inc. v. Young, 20 Conn. App. 218, 221-222, 565 A.2d 262 (1989); Krawiec v. Kraft, 163 Conn. 445, 447, 311 A.2d 82 (1972). Practice Book § 18-5 states:
"(a) Costs may be taxed by the clerk in civil cases fourteen days after the filing of a written bill of costs provided that no objection is filed. If a written objection is filed within the fourteen day period, notice shall be given by the clerk to all appearing parties of record of the date and time of the clerk's taxation. The parties may appear at such taxation and have the right to be heard by the clerk.
"(b) Either party may move the judicial authority for a review of the taxation by the clerk by filing a motion for review of taxation of costs within twenty days of the issuance of the notice of taxation by the clerk."
Even if this court had the authority to order a party to pay the costs of an administratively ordered genetic test, the facts in this case would require that the court deny such a request. The defendant testified at the court hearing that he did not request the genetic test. Rather, he claims that it was the plaintiff mother that insisted on the DNA test. His testimony in this regard was not convincingly contraverted and the court finds it credible. Therefore, the court finds as a matter of fact that the defendant was not the requesting party.
The clear language of the statute provides that the putative father becomes liable for the costs of the genetic test only if he is the requesting party. Under all other circumstances the statute mandates that the cost of the test be paid by the State. Although an equitable argument might be made that the plaintiff, as the requesting party, should pay for the tests, the language of the statute clearly extends liability only to a requesting putative father .
The court leaves the gender equality and equal protection ramifications of this dichotomy for another day.
Accordingly, for the reasons stated, the State's request for costs is granted as to the costs of service of process and denied as to costs of the genetic test. The clerk may tax costs against the defendant to the State in the amount of $37.80.
Harris T. Lifshitz Family Support Magistrate