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In Parker v. Dansby, in a fact pattern somewhat similar to the present, the court found mistake and opened the judgment.
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No. FA 89-92582
June 24, 2005
MEMORANDUM OF DECISION RE MOTION TO OPEN PATERNITY #139 and MOTION TO MODIFY #____
On January 19, 1990, a Judgment of Paternity entered, finding the Respondent, Shawn Dansby, (hereinafter referenced as the "judgment father"), to be the father of Damien, d.o.b. 12/1/89. Mr. Dansby filed a written appearance in the action prior to a hearing, but failed to appear at the hearing. According to the court file, the Judgment entered upon his "default of appearance." The child has since been placed in the custody of Department of Children Families. A proceeding concerning the child's custody and care was brought before the Superior Court, Juvenile matters. In the Juvenile proceeding, the Superior Court ordered genetic testing to determine, biologically, the child's parentage. The judgment father, Mr. Dansby, was excluded as the biological father. As a result, he has not participated in the Juvenile proceedings, and the child remains in the custody of the State. Based upon the d.n.a. results excluding him as the biological father, the judgment father now moves to open the Judgment of Paternity. He also seeks, by way of motion to modify, to terminate his current support obligation and seeks reimbursement for past support he has paid to the mother and the State.
Although the Mother, Tricia Parker, was served in hand, she has not appeared on the Motion to Open or Motion to Modify.
Prior to the filing of the pending motions, the judgment father and the child had a sporadic and "intermittent" relationship, according to the court-appointed counsel for the child. The child knew the judgment father to be his "dad" and had relationship with him for approximately two years prior to the genetic testing CT Page 9453-j being performed. When the judgment father learned that he had been excluded as the biological father he discontinued the limited relationship and ended all contact with the child.
The attorney for the minor child represents that the child learned that the judgment father is not his biological father during the juvenile proceedings. She stated that the child is disappointed that his judgment father is now seeking to open the judgment of paternity. However, counsel reported, the child has no specific preference, opinion or position on the motion to open. The maternal aunt, and apparently the State of Connecticut, are aware of the identity of the biological father. However, they have been unsuccessful in locating this man because he resides out of state. The child, now a teenager, claims to have no interest in seeking out his biological father.
The State objects to the motion to open primarily because it claims the motion is not timely filed or prosecuted. The State generically refers to the statutory authority that limits the filing of a motion to open a judgment within four months of the judgment. In the instant matter, the judgment father filed his motion more than 14 years postjudgment. In addition, he appeared on several previous motions and did not seek to open the judgment until 2003, when he filed his first motion to open and request for genetic testing. The previous motion was marked off, with no court action. The State claims that the judgment father knew or should have known that he may not be the biological father many years ago and thus his request to open should be denied as untimely.
The State further argues that this court should not consider the best interests of the child in its determination of the motion to open. Again, generically citing the statutory authority for a motion to open, the State argues that the court's consideration is limited to the allegations and proof of fraud, duress or mistake in the entrance of the judgment. Tragically for this child, there is scant evidence of what is in his "best interests." Sadly, the two parents he has known have abandoned him. No court order will create a father child relationship where the adjudged father has demonstrated his willingness to abandon the child to the State's custody when he learned that he was not the biological father. CT Page 9453-k
This argument has been accepted by other judicial authority and thus it is not uniformly accepted that the best interests of the child are relevant to the determination of a motion to open a paternity judgment. See State v. Barr, 2004 Ct.Sup. 16337 J.D. Ansonia-Milford, at Derby, FA #92-0039347 (McCarthy, F.S.M., Oct. 26, 2004); see also citations at footnote 3, supra.
Standard:
There is no statute or practice book dedicated to the opening of a paternity judgment, therefore the provisions of Conn. Gen. Stat. § 52-212a and Practice Book § 17-4, relating to the opening of a civil judgment apply. Each provides that a judgment may be opened within four months of the entrance of the judgment, absent fraud, duress, or mistake. The paternity acknowledgment statute, Conn. Gen. Stat. § 46b-172, similarly provides that a voluntary judgment may be opened after the statutory rescission period (60 days), only upon the basis of fraud, duress or material mistake. However, the acknowledgment statute specifically adds the language that material mistake of fact "may include evidence that he is not the father, with the burden of proof upon the challenger." Conn. Gen. Stat. § 46b-172(a)(2). Therefore, in the context of opening a voluntary judgment of paternity, evidence of non-paternity may form the basis of a claim of material mistake of fact.
It is recognized that this statute 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. See Perkins v. Perkins, 3 Conn.App. 322 (1985). It is cited for purposes of guidance in determining what fact patterns may constitute "material mistake of fact" in setting aside a paternity judgment.
In the instant matter, the judgment father does not specifically allege fraud. Rather, he seeks to open the judgment because recently conducted d.n.a. testing conclusively proves that he is not the biological father of this child His claim sounds in mistake in that he believed that he was the biological father when he voluntarily acknowledged paternity.
In such cases where the challenger seeks to open a judgment based upon fraud or mistake, the courts have held the challenger to a level of diligence in discovering the fraud or mistake. The oft-cited case of Billington v. Billington, 220 Conn. 212 (1991), discussed the four limitations of a challenge based on fraud: first, the challenger must not be guilty of laches or unreasonable delay after discovery of the fraud. Second, the challenger must have exercised diligence in trying to discover or expose the fraud in the original action. Third, there must be clear proof of the fraud and, fourth, there must be a substantial likelihood that the result of the new trial would be different.
Numerous courts have denied motions to open where the movant has failed to exercise diligence or was guilty of laches and did not present evidence of non-paternity. Such motions to open have been denied where the belief of possible non-paternity was known for a period of time prior to the filing of the motion to open. In most instances, the court also found that "it is not uniformly accepted that the interests of the minor child categorically trumps traditional concerns for finality of judgments." CT Page 9453-l
Comm'r Soc. Services v. Fronterotta, FA01-0075904 (Oct. 19, 2004, McCarthy, F.S.M.); State v. Negron, FA 96-0078493 (Sept. 8, 2004, McCarthy, F.S.M.); State v. Barr, FA92-0039347 (Oct. 26, 2004, McCarthy, F.S.M.); Velez v. Tores, FA96-0621680 (Dec. 27, 2002, Lifshitz, F.S.M.); Rivera v. Gonzalez, FA91-0609209 (Aug. 11, 2002, Lifshitz, F.S.M.); Smith v. Johnson, FA 00-0631359 (May 31, 2002, Lifshitz, F.S.M.); Cruz v. Hudson, FA 97-0622309 (March 14, 2002, Lifshitz, F.S.M.) Rosado v. Caceres, 2003 Ct.Sup. 5789 J.D. Hartford FA 96-06216680 (Lifshitz, F.S.M., April 17, 2003); Drakeford v. Ward, FA97-0623106 (Nov. 7, 2001, Lifshitz, F.S.M.); Tina C. v. Christopher H., FA94-0119611 (Dec. 15, 2001, Colella, F.S.M) ( 31 Conn. L. Rptr. 144).
In addition, several courts have denied opening judgments of paternity where the evidence clearly established that the challenger knew the possibility of non-paternity and significantly delayed seeking relief to the detriment or prejudice to a party and/or child. In Perkins v. Perkins, the Connecticut Appellate court held that the challenger father knew that he might not be the father prior to his marriage of the mother. The father then promised to raise the child as his own, to the detriment of the mother and child by preventing them from pursuing support against the biological father or pursing adoption by the biological father. Similarly, the Appellate Court has held that a challenger may be equitably estopped from opening a judgment based upon non-paternity. In W. v. W., 248 Conn. 487 (1999), the Court found that the father's actions had induced the child and mother to believe that he would always support them, emotionally and financially, although he knew when the mother was pregnant that he may not be the father. His actions discouraging the mother from obtaining paternity testing or identifying the biological father estopped him from reopening the judgment. In accord Serrano v. Serrano, 2000 Ct.Sup. 14599 J.D. of New Haven FA #84-227731 (Jones, J. 11/27/00), denying a motion to open a judgment of dissolution faced with evidence of non-paternity.
See also Angelus v. Angelus, 1997 Ct.Sup. 8419, 20 Conn. L. Rptr. 252 (Solomon, J., Sept. 16, 1997) (motion to open and request for court-ordered genetic testing denied for lack of diligence and laches when the information was known to the father over two years earlier, at time of dissolution judgment and no evidence of fraud or non-paternity was presented.
In Serrano, the court held that the challenger father was equitably estopped from challenging paternity where the father had a 13-year relationship with the child, including the provision of active emotional support for the child, holding out to the community that this was his child, despite prior known reservations, and providing substantial financial support to the child.
The above-cited cases are distinguishable from the present facts. In each situation the father held himself out as the parent, to the public and directly to the child. The father lived with and or developed a strong parent-child relationship that existed over a significant and continuous period of time before and after the father knew he was not the biological parent.
In the present case, the relationship was "sporadic and intermittent," at best prior to the judgment father learning that he was not the biological parent. There is no evidence of a close or significant relationship. The judgment father has no contact with the child at the present time and is not a participant in the juvenile court proceedings concerning the care and custody of CT Page 9453-m the child. The child knows that the judgment father is not his biological father, and the identity of the biological father is known.
The courts are not to sanction admitted misrepresentations and are not interested in maintaining judgments obtained by fraud. See Freda v. Freda, 39 Conn.Sup. 230, 476 A.2d 153 (1984) (a 10-year-old judgment of dissolution may be opened to allow paternity testing of two minor children issue of marriage if presented with evidence of fraud); Kenworthy v. Kenworthy, 180 Conn. 129 (1980); In re Jonathan M., 225 Conn. 208, 238 (2001) ("it is a well established general rule that even a judgment rendered by the court . . . can be subsequently be opened . . . if it is shown that the judgment, was obtained . . . because of mutual mistake."). See Lillibridge v. Lillibridge, Hartford Superior Court, FA 89-03556815 (Drangnis, J. 10/21/98); Anderson v. Bailey, 15 S.M.D. New Haven Superior Court, # FA90-0309260 (Burt, F.SM., 2/14/01). In the present action, the Superior Court, Juvenile Division, has excluded the judgment father from its proceedings. The Superior court has given no deference to the paternity judgment in its proceedings. It would appear that maintaining the judgment of paternity would create a legal fiction and that a child's true parentage should be the goal and pursuit of the courts in paternity matters.
See also Cambell v. Barrow, FA03-0634839 (Dec. 28, 2004, Baird, F.S.M.) (judgment opened in the best interests of the child, as a result of the child's independent rights in a paternity action and an invalid waiver of rights by the judgment father); Mackey v. Moore, FA 01-0631951 (April 14, 2002, Lifshitz, F.SM.) (paternity petition not properly served and default judgment less than one month old); Martin v. Harrell, FA95-0618397(May 24, 2002, Lifshitz, F.S.M.) (Children had relationship with biological father).
For similar findings, see Granderson v. Hicks, No. 02A01-9801-JV-00007, 1998 WL 886559*3 (Tenn.Ct.App. Dec. 17, 1998); White v. Armstrong, No. 02A01-JV-0735, 1999 WL 22085 (Tenn.Ct.App. Jan. 27, 1999 ("it is of overriding importance . . . that one conclusively established in law not to be the father of a child be not declared as the father of that child," cited in Taylor v. Wilson, Tenn.App. (3/3/2005).
Interests of the child:
It is clear that the interests of the child are relevant to a determination of a motion to open. In Ragin v. Lee, 78 Conn.App. 848, 861-62 (2003), the Connecticut Appellate Court held, "that 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 interests that the parents may have in the child." The Appellate Court further found that a family support magistrate had the authority to open and vacate a default judgment of paternity based upon the child's independent and fundamental interest in an accurate determination of his paternity. 78 Conn. at 863. Similarly, in Johnston v. Domina, 1998 Ct.Sup. 1105, 23 Conn. L. Rptr. 102, Hartford Superior Court, FA 88-0340848, (Dranginis, J. 9/24/98), the Superior Court opened an 11-year-old judgment of dissolution to allow the father to contest paternity. In Johnston, the Court reasoned "that [w]hile the court may have an interest in preserving family CT Page 9453-n integrity, the court has no interest in continuing to sanction an admitted misrepresentation as to paternity . . ." and found "that the right of the child to knowledge and establishment of paternity supersedes any interest the court might have in preserving a judgment entered by default, and where clear and convincing evidence of fraud on the court is presented. This child's interest in preserving rights which grow from the biological father must take precedence even over a ten-year-old judgment of the court." Johnston v. Domina, at 1998 Ct.Sup. 11006.
Similarly, in Comm'r. of Social Services (Breault) v. Mercure, 2004 Ct.Sup. 16009, J.D. of Windham at Putnam, FA 92-0043326 (Driscoll, J. 10/29/04), a superior court upheld the family support magistrate's opening a voluntary judgment of paternity based upon the child's independent right to know the child's biological parents and on the basis of mistake of fact. The reviewing court held that "the child has a right to know her father, not by allegation, but by verification." The Court further reasoned that the statutory protocol for reimbursement of previously established adjudicated fathers later found not to be fathers supported the opening of the paternity judgment. Judge Driscoll reasoned that "clearly, the state contemplates and desires accurate findings of paternity and that the magistrate's decision advances the parties one major step further along the path to an accurate determination of [the child's] paternity." Id., referencing Conn. Gen. Stat. § 46b-171(6)(b).
It has been held that it is in the best interests of the child to know his true parentage. Andrews-White v. Mitchell, 15 Conn. L. Rptr 629, 1995 Ct.Sup. 12880 (McWeeney, J., November 13, 1995) (The right of the child to knowledge of his parentage is among the factors to be weighed in opening a judgment.) See also Cardona v. Negron, 1999 Ct.Sup. 108847 (Matasavage, F.S.M., August 3, 1999) (Motion to open judgment granted and order vacating judgment of paternity based upon clear and convincing evidence of fraud).
See also Russell v. Russell, 682 N.E. 513, 517 n. 7 (Ind. 1997) ("Proper identification of parents and child should prove to be in the best interests of the child for medical or psychological reasons. It also plays a role in the just determination of child support; we have already declared that public policy disfavors a support order against a man who is not the child's biological parent.")
There is sufficient evidence before this court that a material mistake of fact occurred when entering judgment against the non-appearing judgment father, Mr. Dansby. He has presented clear and convincing evidence of non-paternity. Connecticut law supports the position that paternity adjudications should be accurate, and such a determination is in the best interests of the child. The adjudicated father's motion to open is timely. CT Page 9453-o Although he may have had some suspicion that he was not the father of Damien, he did not obtain conclusive proof that the child was not his own, until the Superior Court conducted genetic testing. He moved to open the judgment of paternity within a reasonable and the statutory time frame when he knew, for a certainty through genetic testing, that he was not the biological father, and thus, there was a mistake in the judgment of paternity. The judgment of paternity is clearly based upon a mistake of fact. Therefore, the Motion to Open is GRANTED, and the Judgment of Paternity is hereby ordered OPENED. The Motion to Modify is GRANTED in part, compliance with Conn. Gen. Stat. § 46b-171(6)(b) is ordered and the current order of support is terminated, effective the date of service of the Motion to Open, Nov. 6, 2004.
Linda T. Wihbey, F.S.M.