Opinion
FBTFA114038496
12-29-2015
Rebecca J. Seidel v. Richard Martens
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Gerard I. Adelman, J.
The defendant, Richard Martens, appeals from a decision of the Family Support Magistrate, Keeney, F.S.M., issued on October 27, 2015 (#139.00). The stated reason for the appeal is a " failure to open file." After reviewing the entire file as well as the companion file discussed below, this court accepts that terse statement as meaning that the defendant did not receive a full hearing on his motion to modify the support order (#135.00) and therefore was denied due process of law.
It is the practice and the policy of the court to decide matters based on the substance of the relief sought rather than on the form of the motion. It is the substance of a motion, therefore, that governs its outcome, rather than how it is characterized or explained. See Tobet v. Tobet, 119 Conn.App. 63, 65, 986 A.2d 329 (2010). Additionally " [i]t is the established policy of the Connecticut courts to be solicitous of [self-represented] litigants . . . when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the [self-represented] party . . ." (Internal quotation marks omitted.) Tonghini v. Tonghini, 152 Conn.App. 231, 240, 98 A.3d 93 (2014).
Appeals, such as the instant matter, are taken to the Superior Court pursuant to General Statutes § 46b-231(n) and Practice Book § 25a-29. The party appealing must demonstrate that he has been aggrieved by a final decision of the family support magistrate (FSM) to be entitled to the judicial review. Subdivision (7) of subsection (n) of § 46b-231 reads:
Practice Book § 25a-29 provides: " Any person who is aggrieved by a final decision of a family support magistrate may appeal such decision in accordance with the provisions of General Statutes § 46b-231. The appeal shall be instituted by the filing of a petition which shall include the reasons for the appeal."
The Superior Court may affirm the decision of the family support magistrate or remand the case for further proceedings. The Superior Court may reverse or modify the 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.
It would appear from the language of the motion and the transcript of the hearing that the defendant believed that he was aggrieved by the decision of the magistrate denying his motion to modify based on his income, the shared custodial plan of the parties, the child having special needs and the excessive transportation expenses.
It would further appear that part of the problem in this case is that two separate files exist regarding the parties and the same minor child. The instant matter involves a support petition brought in 2011 and the companion file involves a custody application brought in 2010 captioned as Richard Martens v. Rebecca Siedel, Docket No. FBT-FA-10-4034692. There are filings in each that additionally confuse the situation. The father, for example, filed an appeal from the FSM's ruling in both files. In the custody file the appeal pleading is number 137.00, and in the support file it is number 139.00.
The mother's surname is spelled differently in the two files. One might expect that the correct spelling is in the file in which she is the plaintiff, namely in the support petition.
The essence of the defendant father's claim is that the FSM did not " open the file" to review items he was presenting in support of his claim, to wit: tax returns and medical records, that resulted in a support order by the court, which exceeded his ability to pay. A review of the transcript of the hearing, however, indicates that the defendant brought other issues to the attention of the FSM. He raised the fact that the parents had a shared residential custodial plan. (Tr. p. 6, lines 2-13.) The defendant also raised the issue that he incurred significant expenses transporting the child back and forth to school since he lives approximately 45 minutes from the child's school. (Tr. p. 13, lines 8-12.)
Both of these items are part of the deviation criteria of § 46b-215a-5c(b)(3) and (b)(6)(A) of the Regulations for Child Support and Arrearage Guidelines. Although the defendant raised these issues at the hearing, the court did not properly examine them, and instead, rejected them. As to a deviation based on their shared parenting plan, the hearing transcript reveals no discussion at all of the criteria to be considered under subsection (b)(6)(A). The FSM questioned the defendant if such an order even existed--that order, of course, was in the custody file and not in the magistrate's file, which as indicated previously was part of the problem. Even later when the plaintiff mother finally appeared and confirmed for the court the existence of a shared parenting arrangement, that fact was not examined at all.
Section 46b-215a-5c(b), entitled " Criteria for deviation from presumptive support amounts" provides in subdivision (3) for extraordinary parental expenses and subdivision (6) for special circumstances when there is (A) shared physical custody.
Likewise, the defendant's claim regarding the extraordinary expenses he incurred bringing the child back and forth from school was not examined by the court in any meaningful manner. Finally, there is sufficient substance to the defendant's claim that the court determined his income to be higher than it actually was. Neither his medical disability and his inability to be currently employed warranted a more thorough examination of the facts by the court. It was simply waved aside.
It is easy to understand the frustration of the FSM in this matter. The defendant has been held in contempt more than once and his current support order is seriously in arrears. Many of these issues have been raised in the past and heard by other family support magistrates. Nevertheless, in the present case, the defendant was not afforded a full hearing on the merits of his claims and therefore was denied due process of law.
" [D]ue process is not a technical conception with a fixed content unrelated to time, place and circumstances. Cafeteria & Restaurant Workers Local 473 v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). Rather it is a flexible doctrine, requiring 'such procedural protections as the particular situation demands.'" (Internal quotation marks omitted.) Williams v. Bartlett, 189 Conn. 471, 477, 457 A.2d 290 (1983), quoting Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Generally, due process requires a hearing to be held " at a meaningful time and in a meaningful manner ; Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)." (Emphasis added; internal quotation marks omitted.) Kukanskis v. Griffith, 180 Conn. 501, 510, 430 A.2d 21 (1980).
Accordingly, the order denying the defendant's motion to modify is reversed and the matter is remanded to the Family Support Magistrate Division for a further hearing.