Opinion
No. HHDFA044003301
April 11, 2005
MEMORANDUM OF DECISION
This matter was remanded to this court for rehearing by order of the Superior Court, Prestley, J., on an appeal of a previous decision. The Superior Court resolved the respondent's claims regarding subject matter jurisdiction, standing of the Attorney General to appear and participate in the case, and the necessity of the petitioner's presence in court in Connecticut. The sole remaining issue is the respondent's claim that the underlying order was vacated or terminated by the rendering court, thus invalidating the registration.
The subordinate facts are set forth in Judge Prestley's Memorandum of Decision. On December 13, 1990 the Circuit Court for the Sixteenth Judicial Circuit in Kane County Illinois (docket number FKA 90-1272) rendered a paternity judgment, adjudging the respondent to be the father of the child Sarah Jean Geressy, born April 28, 1985 to the petitioner. The judgment states that both parties were present at the hearing. The court ordered the respondent to pay $62.36 per week as child support and to provide medical insurance through his employer. Supplemental orders issued by the same court established a weekly arrearage payment of $12.50 and required that payments be made through the clerk of the court.
In his brief, the respondent challenges the validity of the paternity judgment, arguing that the "allegation is apparently an attempt to make the court believe that respondent had knowledge of the goings on in Illinois when he has maintained from the beginning that no such event occurred." Respondent's brief, p. 15. The court finds this argument bordering on the frivolous. The petitioner's "allegation" of paternity is based on the Illinois judgment, which contains a specific finding that "respondent is present in open court." Furthermore, the judgment is accompanied by a document entitled "Admission of Paternity" which is signed by the respondent and a jurat taken by the trial judge. Furthermore, the respondent raised no challenge to the paternity judgment either at the time of registration or when he filed his motion to modify and objection to the notice and claim in 2003. Lastly, the respondent is precluded from attacking the Illinois paternity judgment in this tribunal by the provisions of General Statutes § 46b-213, which states: "A party whose paternity of a child has been previously determined by or pursuant to law may not plead nonpaternity as a defense to a proceeding under sections 46b-212 to 46b-213v inclusive."
A copy of the 1990 judgment is reproduced as Appendix A. (Editor's Note: The referenced attachment has not reproduced herein.)
The petitioner thereafter moved to the State of Indiana. The respondent was and is a resident of Connecticut. On December 2, 1993 the rendering court entered an arrearage finding of $685.96 owed to the petitioner as of November 30, 1993 and also issued the following order: "Both parties out of state. Clerk relieved of all record keeping and disbursement. Clerk to delete."
A copy of the 1993 order is reproduced as Appendix B. Editors Note: The referenced attachment has not been reproduced herein.
In 1996 the petitioner requested assistance in enforcing the child support orders from authorities in Hammond, Indiana. A transmittal and petition were forwarded from the Prosecuting Attorney to this court seeking in the alternative, registration of the Illinois order or establishment of a child support order pursuant to the provisions of the Uniform Reciprocal Enforcement of Support Act (URESA). The petition first came before this court in September 1997 when it marked off for insufficient service. Subsequently, Connecticut, Indiana and Illinois all enacted the Uniform Interstate Family Support Act (UIFSA). General Statutes § 46b-213g through 46b-213q govern registration under UIFSA.
After additional abortive attempts to serve the petition, abode service was finally accomplished on November 16, 2001. The respondent did not file an objection to the registration. The failure of the respondent to contest the registration within twenty days of service confirms the order by operation of law. General Statutes § 46b-213l(b).
In September 2003 the respondent initiated a motion to modify to reduce the amount of the support order, and applied for orders of notice to effect service on the petitioner. He also filed an objection to a notice and claim procedure filed by the Support Enforcement Division. Ultimately the respondent withdrew his objection to the notice and claim and apparently was unsuccessful in his attempts to obtain service of the motion to modify.
The registered Illinois order included a withholding order including a $12.50 arrearage payment order. This is clearly delineated in the papers filed for registration.
In March 2004 the respondent by his counsel filed a pleading ostentatiously entitled "Respondent's Motion to Vacate Registration of Foreign Support Order, Connecticut Wage Withholding/Enforcement Order for Support and Connecticut's Enforcement of Foreign State's Arrearage Order." The previous court ruled that the motion would be treated as a motion to open judgment. In its September 8, 2004 memorandum of decision, that court opined that "the primary question is whether the child support order was terminated at some point in Illinois or Indiana, correctly or incorrectly, intentionally or inadvertently." This issue related directly to the effect of the 1993 Illinois decree "deleting" the support order.
The court recited its efforts pursuant to General Statutes § 46b-213b to communicate with the tribunals in Illinois and Indiana to determine the status of the order. This effort was unsuccessful, as was the court's attempt to secure a waiver of the 120-day time limit for rendering its decision imposed by Practice Book § 11-19(a). Faced with the dilemma of rendering a decision without the requested response from the initiating tribunal, the court held that the petitioner and State of Connecticut had the burden of proof "as to the existence of a clear and unambiguous child support order in a foreign tribunal entitled to full faith and credit by the State of Connecticut." The court further held that the petitioner and State of Connecticut failed to refute the claim that the 1993 Illinois order terminated the child support order and thus failed to establish the existence of a clear and unambiguous support order. Accordingly, the court granted the respondent's motion, opened and vacated the registration and terminated income withholding.
Practice Book § 11-19(a) states in part: "Any judge of the superior court and any judge trial referee to whom a short calendar matter has been submitted for decision, with or without oral argument, shall issue a decision not later than 120 days from the date of such submission, unless the time limit is waived by the parties."
The remand hearing provided little new information. Although both sides were invited to present witnesses and evidence, both sides elected to make oral argument and rely on their previous briefs. The respondent did submit a key document, however. Entitled "Miscellaneous Correspondence," and certified by the clerk of the rendering court in Kane County, Illinois, the document states, in part: "All orders for support in the matter styled Geressy v. Testa, Docket No. FKA 90-1272 were vacated by Judge Larsen on December 2, 1993 . . . Illinois has no further orders for child support in connection with these parties." This would appear to be a clear statement that the Illinois support order had indeed been vacated.
It is noted that the respondent by his counsel filed a new motion dated March 16, 2005 entitled "Respondent's Motion to Terminate Further Proceedings" which substantially reiterates the claims made in the respondent's March 2004 motion. Reference is made to the "vacated" Illinois order and the September 8, 2004 order vacating the registration. The same arguments are proffered with the addition of the curious claim that the proceedings should be terminated because the respondent "has not received a petition and order". This court views these proceedings as a rehearing of the March 2004 given that the September 8, 2004 ruling on that motion was reversed by the Superior Court and remanded with direction. There is no need either for the petitioner to file another petition or for the respondent to file another motion.
The certified submission from the clerk of the court is significantly stronger evidence than the rather non-commital affidavit submitted at the 2004 hearing by the official court reporter who merely certified that there was no available shorthand record of the 1990 hearing.
As did the previous court, the undersigned exercised its prerogative pursuant to General Statutes § 46b-213b to communicate with the Illinois court. The undersigned first reached an assistant clerk of the court. After checking the file, the clerk verified that the prior order was deleted from the system. To the query as to whether "deleted" meant only that the clerk was monitoring the order, the reply was that the order had been vacated and no longer existed.
General Statutes § 46b-213b states: "Communication between tribunals. A family support magistrate may communicate with a tribunal of another state in writing, or by telephone or other means, to obtain information concerning the laws of that state, the legal effect of a judgment, decree or order of that tribunal and the status of a proceeding in the other state. A family support magistrate may furnish similar information by similar means to a tribunal of another state."
The undersigned then asked to speak to a judge. After several transfers the undersigned was advised that no judge was available but a message could be left on voice mail. The undersigned left an inquiry on voice mail. The following day, a phone call was recorded on this court's voice mail from Hon. Robert Spence, the presiding family judge in Kane County, Illinois. Judge Spence indicated that he had the file before him and reviewed the 1993 order. His interpretation is quite different than that of the clerk.
Appendix C is a transcript of the voice mail message from Judge Spence. (Editor's Note: The referenced attachment has not been reproduced herein.)
"The way we would normally . . . interpret that here is, I think just as stated, that the clerk doesn't have to collect the child support any further. However, it did not relieve the obligor of his legal obligation to pay the child support. I would never make that interpretation short of something that says exactly that, that the child support is terminated or abated or something. Those are the two terms that we commonly use here, that the child support is abated . . . or terminated." (Emphasis added.)
It is understandable that the respondent would rely on the favorable but inaccurate interpretation of the 1993 order provided to him by the court clerk. In this era of increasing bureaucratic treatment of Family Law, it is not uncommon for nonjudicial officers to equate the ending of their responsibility for a child support order with the ending of the existence of the order. This court has had the unfortunate experience of witnessing our own support enforcement division equating "closure" (i.e., ending monitoring by support enforcement) with "dropping" arrearages or support orders. See Duhaney v. Ross, 16 S.M.D. (2002).
Under UIFSA, interpretation of the nature of the 1990 child support order, and the subsequent 1993 order, is left to the issuing court. General Statutes § 46b-213j. The interpretation of Illinois law is propounded not by the court clerk, but the judges of the court. The 1993 order did not terminate or vacate the child support order. It merely relieved the clerk of the obligation to enforce and monitor the payments. Illinois statutes and cases suggest that, as stated by Judge Spence, cessation of an order would be worded "termination" and would require some formality, including a motion or petition by the respondent. See e.g. 750 ILCS 5/510(d); In re Marriage of Schneider, 343 Ill.App.3d 628, 633, 798 N.E.2d 1242 (2003); In re Marriage of Hahn, 324 Ill.App.3rd 44, 754 N.E.2d 461 (2003).
The respondent also relies on the passing observation by Family Support Magistrate Colella that the Illinois order was never registered in Indiana, the present home state of the petitioner. His reliance is misplaced. This court agrees that there is no evidence that the Illinois order was registered in Indiana. In fact, Indiana appears to have taken no action whatsoever in this matter other than to assist the petitioner in her efforts to register the Illinois order in Connecticut. Under UIFSA there is no requirement that the petitioner register the order in her home state. Moreover, had she registered the order in Indiana, that would have not in any way diminished her right to register the order here.
Even if Indiana had entered an order under URESA, the prior law, under which an order in a different monetary amount would be possible, the petitioner's "acceptance of payments under a URESA order issued in a foreign state . . . does not imply a relinquishing of all rights under the original foreign support order." Twaddell v. Anderson, 523 S.E.2d 715-16 (N.C.App. 1999); Crowe v. Cerrone, 14 S.M.D. 116, 117, 2000 Ct. Sup. 7359 (Burt, F.S.M. 2000). "Any hardship that this may place on the support obligor is . . . an unavoidable corollary of the legal principle that a parent's duty to support a child is of paramount importance under the law and continues until the child reaches the age of majority." Tucker v. Robertson, 662 So.2d 826, 829 (La.Ct.App. 1995); Crowe v. Cerrone, supra, 14 S.M.D. 117.
Based on the foregoing, this court orders:
(1) "Respondent's Motion to Vacate Registration of Foreign Support Order, Connecticut Wage Withholding/Enforcement Order for Support and Connecticut's Enforcement of Foreign State's Arrearage Order" dated March 2004 is denied.
(2) "Respondent's Motion to Terminate Further Proceedings" dated March 16, 2005 is denied.
(3) The judgment of the Circuit Court for the Sixteenth Judicial Circuit in Kane County Illinois remains in effect and is accorded full faith and credit by this court. It remains the controlling order in this case pursuant to UIFSA.
(4) The registration of the Illinois order is valid and remains in effect. The registered order requires the respondent to pay $62.36 per week in current support plus $12.50 on the arrearage. After the termination of the order based on the child's attaining majority, the respondent shall continue to pay $12.50 per week on the arrearage.
(5) In view of the 1993 order relieving the clerk of the court in Kane County of the duty to monitor the child support payments, this court finds that imposition of the $36.00 annual support services fee mentioned in the supplemental order dated December 19, 1990 is inappropriate and is excluded from the registration.
(6) Immediate income withholding is ordered. The respondent is ordered to pay the periodic order as directed by the Connecticut support enforcement division during any week in which the full order is not withheld. All payments are to be made through Connecticut support enforcement, which is directed to disburse the payments directly to the named petitioner. Indiana support enforcement shall be informed of the progress of the case at reasonable intervals.
(7) Enforcement of the registered order shall not be stayed by any subsequent proceedings including any further appeals. General Statutes § 46b-231(p).
(8) Whereas pursuant to General Statutes § 46b-231(n)(3) the entire record of these proceedings has been transmitted and filed under the captioned docket number in the Hartford Judicial District, in the interests of judicial economy henceforth all pleadings and papers in this matter shall be filed with the clerk of the judicial district in the above-captioned docket number and the court file formerly housed with the support enforcement division is merged and transferred herein.
(9) A copy of this decision shall be filed with the Circuit Court for the Sixteenth Judicial Circuit in Kane County Illinois as well as the Indiana support enforcement office in Hammond, Indiana.
BY THE COURT
Harris T. Lifshitz Family Support Magistrate