Opinion
KNOFA166101889
06-30-2017
Danielle Steffens v. Kane Harrison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Leo V. Diana, J.
This is an appeal by the defendant, Kane Harrison, seeking reversal of the family support magistrate's February 10, 2017 orders; (1) denying the defendant's Motion to Dismiss, (2) finding a weekly amount of child support and failing to provide a greater deviation, (3) ordering an arrearage without finding the father failed or neglected to support the minor child, (4) finding an arrearage for three years, (5) failing to hear the case law argument on the Motion to Dismiss, and (6) miscalculating the child support arrearage. On June 20, 2017 this appeal was heard. Legal arguments were made by the parties' attorneys and the State of Connecticut (AAG). This court reviewed the files, legal submissions, including transcripts of prior proceedings and having considered the relevant facts and case law, the court hereby reverses the magistrate's decision with regard to the above claims.
Procedural Background
On January 8, 2010, the State of Connecticut, on behalf of the plaintiff, Danielle E. Steffens, filed a Support Petition. The court, Adams, F.S.M., ordered a medical/dental standard order as the family was receiving HUSKY insurance benefits. The parties acknowledged paternity of the minor child and no child support orders were entered as the family was intact. Thereafter on February 19, 2016 the father filed a Custody Application seeking custody of the parties' minor child and child support. This court, at the request of the mother, deferred the child support matter to the magistrate and ordered " Child Support as follows: Deferred to the Magistrate's Court docket number KNOFA10-104112694." The Bureau of Support Enforcement filed a modification of the 2010 case on July 6, 2016, which was later amended by mother's legal counsel on September 1, 2016. At the hearing set down for September 12, 2016, both motions were withdrawn. Also on September 12, 2016 father filed a motion to modify child support (#112) with regard to the 2010 case. On October 14, 2016 a new support petition was filed by the State of Connecticut (AAG) on behalf of the mother seeking child support and arrearages due. Both matters were heard on January 13, 2017 and February 10, 2017.
The court, Gilman, F.S.M., issued several orders of interest in this matter; (1) on January 13, 2017 the father's Motion to Dismiss (#102) filed on November 21, 2016 was denied, (2) on February 10, 2017 the magistrate found the child support deviation to be $120 per week based upon a shared custody/best interest of the child; (3) an arrearage of child support was found to be in the amount of $24, 924, and (4) the arrearage went back three years. The court did not rule on father's Motion to Modify, Motion #112. On February 24, 2017 this appeal was filed by the defendant along with a statement of facts. Neither the State of Connecticut nor the plaintiff filed a response to the appeal.
Discussion
General Statutes § 46b-231(n)(1) provides that " [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." Any such appeal must be filed not later than fourteen days following the date of the decision. General Statutes § 46b-231(n)(2). The plaintiff's appeal has been timely filed.
Subsection (5) of § 46b-231(n) permits a party to apply for leave to introduce additional evidence to the Superior Court for its consideration in the appeal. No such application was made in this case.
Subsection (7) of § 46b-231(n) provides that " [t]he 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."
The appeal is confined to the record and is not a de novo hearing. General Statutes § 46b-231(n)(6) provides the Superior Court, upon request, shall hear oral argument and receive written briefs. The factual findings of family support magistrates are reviewed under the clearly erroneous standard of review, which " provides that [a] [magistrate's] determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made . . . It is the family support magistrate's function to weigh the evidence and to determine credibility and [the reviewing court gives] great deference to his or her findings." (Citation omitted; internal quotation marks omitted.) Commissioner of Social Services v. Joyner, 136 Conn.App. 826, 832, 51 A.3d 1139 (2012). " The clearly erroneous standard imposes on the appellant a heavy burden of persuasion." Id.
The main issue presented in this appeal focuses on a very specific area of the law. Is the state entitled to bring a new support petition, or is it limited to filing a motion to modify the order of January 29, 2010, that states in part, " no child support ordered, orders entered without prejudice" ? The difference between the two is retroactivity, under a new petition retroactivity can be up to a maximum of three years per General Statutes § 17b-745(a)(5)(A). However, on a motion to modify the retroactivity is limited to the date of service of the motion per General Statutes § 46b-86(a).
I. Motion to Dismiss
The doctrine of prior pending action " permits the court to dismiss a second case that raises issues currently pending before the court." Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 216, 719 A.2d 465 (1998). " The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious." (Internal quotation marks omitted.) Id. Accordingly, " [t]he policy behind the prior pending action doctrine is to prevent unnecessary litigation that places a burden on our state's already crowded court dockets." (Internal quotation marks omitted.) Beaudoin v. Town Oil Co., 207 Conn. 575, 588, 542 A.2d 1124 (1988).
There is a three-pronged test to determine whether a new action should be dismissed under this doctrine. The court should review the record and determine whether the actions " (1) arise from the same factual background, (2) include the same parties, and (3) seek the same goals or objectives." Modzelewski v. William Raveis Real Estate, Inc., 65 Conn.App. 708, 714, 783 A.2d 1074, cert. denied, 258 Conn. 948, 788 A.2d 96 (2001).
In this case the parties, the minor child and the cause of action are the same. The parties are not intact as they were in 2010 yet they have an agreement with regard to the access schedule and they seek the same overall goal of support. The additional orders in the 2010 support petition's order of no child support was entered without prejudice. Also (and of significance) is the Custody Judgment dated March 10, 2016 which specifically ordered child support to be deferred back to the Magistrate Court citing docket number KNO-FA10-4112694 in the judgment. Prior to the filing of the new petition, the father had filed a Postjudgment Modification of Support (#112), on September 12, 2016, in the 2010 case. Thus, the doctrine of prior pending action is satisfied with these particular facts, the new support petition filed in 2016 seeking child support is of the same character, with the same parties to obtain the same objective and it is contrary to the Custody Judgment ordering that child support be taken up in the 2010 case. Accordingly the decision denying the Motion to Dismiss is in error and is hereby reversed.
II. Deviation
The parenting plan in the Custody Judgment dated March 10, 2016, states, " Joint Legal Custody, primary residence of the child for school purposes shall be with the defendant mother provided she returns to the Lisbon school district." The mother currently resides in Uncasville with the father residing in Moosup.
The court found the presumptive child support ($158) amount based upon one of the four guideline worksheets that were submitted at the hearing to be paid from father to mother and deviated from the guidelines based upon the shared parenting/best interest of the child. No guideline or formula exists to calculate the exact value of the deviation. The court found the parties' income as supported by the transcript and financial affidavits. The claim is that the deviation did not impute mother's full-time income and stated shared custody without adjusting for it. The guidelines used were based upon the financial affidavit filed on January 13, 2017 for the mother based on 25 hours of work per week instead of 40 hours per week. The parenting plan in the Custody Judgment provides the father with seven (7) overnights every fourteen (14) days. The thirty-eight ($38) dollar deviation is insignificant and clearly erroneous based upon the record.
A child support order of $75 per week from father to mother shall enter in Motion #112 in the 2010 Support Petition as of February 10, 2017 without any retroactivity. All work-related child care of either party and all of the minor child's uninsured/unreimbursed medical/dental expenses shall be equally divided (50/50) between the parties. The deviation factors as previously found remain and this order shall be secured by an immediate wage garnishment.
III. & IV. Arrearage
The record indicates that the parties had a private, unwritten agreement with the mother claiming the minor child as an exemption on her taxes and the father having the minor child three overnights each week according to the mother and more access as alleged by the father, however, no specific schedule was followed. The record is clear that the father provided health care for the minor child, had substantial regular weekly contact with the minor child, his family (mother, sisters and fiancé) even provided child care when the parties were working to avoid daycare and the expense. Neither party sought child support from the other between 2010-2016 until these motions were filed due to the father claiming the 2015 exemption for the minor child. The court, Gilman, F.S.M., did not find that the father neglected or refused to furnish support for the three years preceding this filing pursuant to General Statutes § 46b-215(a)(7)(A), in fact the record speaks to the contrary. This issue is moot in light of the above decision regarding the Motion to Dismiss. Error is found and the order regarding the arrearage is reversed and vacated with no arrearage due.
V. & VI. Case Law/Deductions
The claim that; (1) counsel for the father was not allowed to make arguments to the court regarding case law that were taken into consideration prior to the matter being decided; and (2) that the health care deduction and the deviation were not considered in the arrearage calculation. These matters are moot in light of this decision.
Conclusion
For the foregoing reasons this court concludes that the family support magistrate's decision of February 10, 2017 is hereby reversed and orders are entered as stated herein. The issues raised on appeal are affirmed and the appeal is hereby granted.
SO ORDERED.