Opinion
No. FA01-0631685
September 13, 2001
MEMORANDUM OF DECISION
This matter commenced with a support petition brought by the State of Connecticut on behalf of the named plaintiff, Margarita Correa, and for its own interests. The State recites General Statutes §§ 17-324, 46b-215 and/or 46b-172 as its authority to bring the action. Notwithstanding the multiple choice nature of the citation of authority, the court presumes that the State actually relies on General Statutes § 46b-172 (c) which specificaliy addresses the circumstances of this case, rather than General Statutes § 17-324 which was repealed and General Statutes § 46b-215 which has much more general support language.
The petition itself, contrary to the requirements of Practice Book § 10-1 does not fact plead by reciting "a plain and concise statement of the material facts . . . divided into paragraphs numbered consecutively." Instead, the petition incorporates by reference a "verified statement of facts" which purports to set forth the factual basis of the claim.
The verified statement alleges that the child subject of the petition is Tiana Correa, born January 10, 1991. The named plaintiff is cryptically identified only as a "supervising relative". The defendant is alleged to be the "acknowledged father". There are no facts set forth in either the petition, the verified statement or any appended document supporting that legal conclusion. The petition with appended verified statement was served in hand upon the defendant on March 22, 2001.
The named plaintiff and the named defendant were both present in court on the designated hearing date and filed appearances. The State filed a certified copy of an acknowledgment of paternity form which had been acknowledged by the defendant on October 26, 2000 and affirmed by the plaintiff on August 10, 2000. The form was apparently filed with the Department of Public Health, although the filing date is not evident from the copy provided. The registrar of vital records certified the proffered copy on February 20, 2001. From this document it can be ascertained that the named plaintiff is Tiana's mother and the defendant, her father. Since the parents do not reside together, the court granted the petition and entered support orders, ancillary orders including health care coverage, and made arrearage findings, all of record in the court file.
At the conclusion of the proceedings the State requested that the defendant be ordered to pay for the cost of a genetic test. The court questioned its authority to enter such an order. No laboratory report had been produced nor was there a bill or statements for the costs. The State did not have these documents present in court and requested leave to file the documents within ten days. The parties did not object so the court allowed the subsequent filing. On May 24, 2001, the Department of Social Services filed copies of two computer print-outs from LabCorp, portions of which purport to show charges totaling $145.50 relating to the parties in this case.
The DNA test results were never filed in this case nor offered into evidence.
Parentage has not been adjudicated in the action pending before this court. Rather, the State relies on the written acknowledgment of paternity. The acknowledgment operates "in lieu of" a paternity adjudication and has "the same force and effect as a judgment of the Superior Court." General Statutes § 46b-172 (a)(1). The court takes no part in the establishment of paternity under this provision. The document itself is "considered a legal finding of paternity without requiring or permitting judicial review. . . ." Id. It is not in any sense of the word an adjudication.
In this matter, no paternity petition was ever filed with the court. Instead, the paternity issue was concluded administratively under the auspices of the Department of Social Services. As part of this process the Department of Social Services has the statutory authority to require genetic testing. "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). Apparently this procedure was invoked to procure DNA tests in this case.
"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 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." Romero v. Roberts, 15 S.M.D. ___ (2001).
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 deoxyribonucleic 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."
"[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 in 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).
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. 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? Accordingly, this court can not view these "reversals" as precedent in the present case. Rather, the court finds the reasoning of Family Support Magistrate Langley at least as to the absence of authority to order payment to be persuasive.
"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." (emphasis in original) Romero v. Roberts, 15 S.M.D. ___ (2001). "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 CtSup. 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 close to consistency among courts.
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."
It is readily apparent that the regulation goes beyond the authority granted by General Statutes § 46b-168a(c) to the Commissioner of Social Services. General Statutes § 46b-168a(b) applies fathers who are later adjudicated. Section 46b-168a-1(c) of the Regulations of Connecticut State Agencies purports to apply to fathers who are later adjudicated such and fathers who subsequently acknowledge paternity after the genetic testing is completed. It is implicit from the language of the regulation that it purports to apply liability to two classes of fathers: those later adjudicated and those who subsequently acknowledge paternity. The statute only applies to the former. The clear language of the regulation is in conflict with the statute. "If a regulation is shown to be inconsistent with a statute, the regulation is invalidated, not the statute." Slimp v. Dept. of Liquor Control, 239 Conn. 599, 617 n. 18, 687 A.2d 123 (1996).
Even if the regulation could somehow be read as consistent with the statute there remains no authority under the aegis of the present action for the court to order and enforce the payment. Had the legislature intended the Family Support Magistrate to have the authority to order the payment of an administratively required genetic test, it could have easily done so. Clearly this court has no jurisdiction to order the putative father to pay this debt. Where the Department of Social Services believes that a liability exists under the regulation, it can pursue it the same way most liabilities are collected: send a bill.
In two prior 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 CtSup. 14094 (2000); and Figueroa v. Molina, 14 S.M.D. 318, 28 Conn. L. Rptr. 336, 2000 CtSup. 13165 (2000) 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 held in Romero v. Roberts, 15 S.M.D. ___ (2001) that in its opinion the department had provided criteria to determine financial ability to pay the costs of the test sufficient to comply with the statute. In the present case, the State did provide evidence of the actual cost incurred.
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 § CT Page 13079 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). "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." (footnote in original) Romero v. Roberts, 15 S.M.D. ___ (2001).
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. Dana Investment Corp., 249 Conn. 1, 18, 22, 730 A.2d 1128 (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"
Accordingly, for the reasons stated, the State's request for costs is denied.
BY THE COURT
Harris T. Lifshitz Family Support Magistrate