Opinion
No. FA72-0175229
December 9, 2003
MEMORANDUM OF DECISION (RE Objection to Notice and Claim — Support Income Withholding)
A. History of Pleadings
The Petitioner, Helen Stevens (f/n/a Helen LaPorte) initiated divorce proceedings in this file against the Respondent, Anthony J. LaPorte. The Complaint (dated February 29, 1972) was prepared by private counsel, Milton Koskoff and served in hand upon the Respondent. Subsequently an Appearance was filed on behalf of the Petitioner by John Kearney of the Waterbury Legal Aid Office (apparently in lieu of Attorney Koskoff's office).
The court (Saden, J.) entered a Judgment of Divorce (by default against the non-appearing Respondent) on October 18, 1972. It appears that the Petitioner was represented at this hearing by Robert Nichols, a staff attorney with Waterbury Legal Aid. The Petitioner was awarded (sole) custody of the two minor children issue of the marriage, Dean LaPorte, born June 1, 1962 and Melissa LaPorte, born January 27, 1966. The Respondent was ordered to pay child support in the amount of $25 per week per child, plus $10 per week alimony. (Thus the current child support obligation for Dean terminated on 6/1/80, and the current child support obligation for Melissa terminated on January 27, 1984).
Attorney Nichols filed a Motion for Contempt dated November 7, 1972 (pleading no. 103). Apparently both parties attended the November 30, 1972 hearing. The Respondent was ordered to pay off the $155 arrearage within one week.
Motion #104 is entitled "Motion for Permission to Leave the Jurisdiction" dated May 14, 1973. It was prepared by Attorney Nichols for the Petitioner. The file does not reflect whether this Motion was granted (as to the Petitioner's specific request to move with the children to California). However at the May 25, 1973 hearing the court (Speziale, J.) modified the divorce Judgment by terminating the alimony order, added three weeks of summer vacation visitation, and ordered the Respondent to make the child support payments through the (State of CT) Family Relations Office (predecessor for child support collections to the current Bureau of Child Support Enforcement). This modification language was written on the second page of the Judgment file and on a copy of the said Motion for Permission.
The next pleading found in this file is a Short Calendar List slip (no. 106) filed July 9, 1976 by the Family Relations Office for "Contempt and Wage Execution." The file does not contain any related pleadings, orders or notations regarding this slip. (The file's computer-generated list of pleadings indicates that a contempt pleading or claim slip for "Contempt and Wage Execution" was coded as Pleading no. 105 on May 25, 1976. However the file does not contain any corresponding documents, orders or notations).
No further pleadings were filed in this matter until some 27 years later. On December 30, 2002 the State of Connecticut Bureau of Child Support Enforcement filed the "Notice of Claim Form — Support Income Withholding" (the "Claim") dated December 13, 2002. It indicates that the Respondent owes the Petitioner $27,450 for 588 weeks of past due child support.
The Respondent initially filed an objection to the Claim, alleging full payment through the State of Connecticut. Respondent's counsel further pleads that the Claim is banned by (an unspecified) Statute of Limitations, or the doctrines of "laches," "(equitable) estoppel" or "implied waiver."
B. Current Proceedings and Testimony
The Court (Sosnoff-Baird, F.S.M.) ordered a stay of enforcement of the Claim on March 10, 2003 and continued the matter to afford the appropriate State agencies the opportunity to search for the manual-entry payment records in this matter. Such records in this file (if any) would have predated the State's implementation of computer-entry payment records.
Subsequently, at the contested hearing before this Court, the assistant attorney general presented the Petitioner's "Arrearage Affidavit" dated October 31, 2002. It alleges that the Respondent made no current child support payments from October 1972 to January 1984, resulting in a total claimed arrearage of $27,450. However, on cross-examination, the Petitioner acknowledged receiving approximately $755 in payments between November 1972 and April 1973.
The Petitioner indicated that her initial lawyer in this case was one Harry Pregoda (sp?), but his name does not appear in this file. She has no recollection of being represented by Waterbury Legal Aid. She further testified that she had repeatedly called the Family Relations Office to seek enforcement of the child support orders, but was told that nothing could be done for her, as she could not provide the Respondent's social security number or address. She stated that she stopped contacting the Family Relations Office in 1978, but later testified that she had continued to call the FRO until 1981.
On cross-examination, the Petitioner acknowledged that she had filed joint income tax returns with the Respondent prior to their divorce, but that she didn't realize that the Respondent's social security number would be reflected on these tax returns. She acknowledged that she had brief telephone contact with the Respondent on about thee occasions during 1974, but that she did not ask about child support payments during these conversations.
The Petitioner further acknowledged that she had some contact with the Respondent on several occasions between 1984 to the present (and that their son lived with the Respondent In Connecticut for periods of time, as early as 1984). However, she neither mentioned a child support arrearage claim to the Respondent on any of those occasions nor requested Support Enforcement Bureau services until 2002. The Petitioner stated that it did not occur to her until 2002 that she could make a claim for past due child support after the termination of the current orders (as of January 27, 1984).
The Respondent testified that he made regular and timely payments by money order to the Family Relations Office in Hartford, including the period of his U.S. Navy service (stationed at New London, CT) from December 1973 to July 1976, and while residing in Florida (as a civilian) from 1976-84. He returned permanently to Connecticut in 1984.
Francis Morrow, a Child Support Investigator for the State of Connecticut, Department of Social Services testified that the search for manual file card payment records for this case was conducted at the Department's state central office, the local Hartford office and the local New Britain office under all possible names. No records of this file were found. He further indicated that customarily such file card records would have been destroyed by the State seven years after a case was closed. Mr. Morrow added that generally such records would not be destroyed if they reflected an outstanding child support arrearage.
With consent of the parties, this Court requested the Clerk to review the Short Calendar docket sheets for July 1976 to determine whether any information would be available to shed more light on the events of that month in this file. Though initially confident that these records could be located in the courthouse attic, the Clerk subsequently reported that she could not locate any such records for that entire calendar year.
C. Findings
I. The doctrine of laches is a legitimate defense to this type of claim in some circumstances. "Laches consists of an inexcusable delay which prejudices the defendant . . . First, there must be a delay that was inexcusable, and second, that delay must have prejudiced the defendant." (Citation omitted; internal quotation marks omitted.) Farmers Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 350, 579 A.2d 1054 (1990); Sablosky v. Sablosky, 72 Conn.App 408, 413. The Petitioner asserts that her delay in this case is excusable because she was under the impression (until 2002) that she was barred from seeking child support arrearage payments upon termination of the current support obligation.
Even if the Petitioner did not know she could request child support arrearage payments after the child turned eighteen, ignorance of the law is, generally, no excuse. "`Ignorantia juris, quod quisque tenetur scire, neminem excusat [ignorance of the law, which every one is bound to know, excuses no man], is as well the maxim of our own law, as it was of the Roman.' 4 William Blackstone, Commentaries on the Laws of England 27 (1769)." O'Neill v. Zoning Board of Appeals, Superior Court, judicial district of New Haven at New Haven, Docket No. 417142 (March 11, 1999, Blue, J.) ( 24 Conn. L. Rptr. 176, 177). See also O'Brien v. O'Brien, Superior Court, judicial district of New Haven at New Haven, Docket No. 0192543 (August 5, 1992, Bassick, J.) ("ignorance of the law is no excuse"). Therefore this Court finds the Petitioner's delay "inexcusable."
However, as indicated in Sablosky, ( supra) the application of the defense of laches also requires a showing of prejudice to the Respondent. Gray v. Gray, Superior Court, judicial district of Tolland at Rockville, Docket No. FA64-9592 (April 17, 2003, Klaczak, J.T.R.). In Gray, a contempt motion was brought by the Plaintiff in 2002 seeking a child support arrearage for a current order that terminated upon the child attaining the age of 18 in 1977. Judge Klaczak found that the Plaintiff had taken no action since 1977. The Plaintiff (as in the instant case) asserted that she did not know the Defendant's whereabouts, and wasn't aware that she could pursue the arrearage after 1977. The court did not find laches as a defense, as the only prejudice the Defendant proved was his inability to produce payment records after many years.
Similarly, Mr. LaPorte's only claim of prejudice is his inability to produce payment records. The Respondent failed to offer any other evidence tending to prove that he "would have been in a more advantageous position had the plaintiff filed her motion earlier." ( Sablosky, supra, p. 413-14.) For example, the Respondent did not present any evidence suggesting that his current financial ability to make weekly arrearage payments is in any way diminished in comparison to his past ability. Accordingly, this Court finds that the Respondent has failed to prove laches as a defense.
II. Judge Klaczak summarized the elements of equitable estoppel as set forth in the Sablosky decision as follows: "Equitable estoppel also is predicated on two essential elements: (1) the plaintiff must do or say something that is intended or calculated to induce the defendant to believe in the existence of certain facts and to act upon that belief and (2) the defendant, in reliance on those facts, must actually change his position, thereby incurring some injury." ( Gray, supra, p. 2-3.) No evidence was offered in the instant case to suggest that the Petitioner attempted to induce the Respondent, or that the Respondent changed his position and incurred harm as a result. Therefore, this Court finds that the Respondent has failed to prove equitable estoppel as a defense.
III. The Gray court (p. 3) also summarized the elements of implied waiver as set forth in Sablosky as follows: "Waiver is the intentional relinquishment of a known right . . . waiver need not be expressed but may consist of acts or conduct from which a waiver may be implied . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so. ( Sablosky, supra, p. 414.) Waiver does not require a showing of prejudice or detriment on the part of the defendant." Hudyma v. Hudyma, 22 Conn. L. Rptr. 204, Sup.Ct. New London JD, May 14, 1998 ( Solomon, J.). See also Glen v. Colmenares,, 16 S.M.D. (New London JD at Norwich), 12/2/02, Sosnoff-Baird, F.S.M.)
This Court finds (based upon the particular facts, testimony and circumstances of this case) that the Petitioner waited an unreasonably long period of time to seek an arrearage finding, thereby resulting in the Respondent meeting his burden of proof to establish an implied waiver by the Petitioner.
IV. Even if the defense of Implied Waiver were not applicable in this case, the Petitioner has failed to meet her burden of proof, i.e., she has failed to convince the Court that the existence of an outstanding arrearage is more probable than not. Nothing was filed after 1976 until late 2002. More importantly, the testimony of Mr. Morrow (indicating that the records would not have been destroyed if there were an outstanding arrearage) supports the Respondent's claim of full payment.
"This court as trier of fact, is obligated to determine the credibility of witnesses and the weight to be given their testimony." Gatter v. Gatter, 15 S.M.D. (2001, Lifshitz, F.S.M.); Griffin v. Nationwide Moving and Storage Co., 187 Conn. 405, 422, 446 A.2d 799 (1982); Riccio v. Abate, 176 Conn. 415, 418, 407 A.2d 105 (1979); Fazaj v. Fazaj, 16 S.M.D. (Waterbury Superior Court, 2/28/02, Colella, F.S.M.); additional citations omitted. The Court has the right to accept part and disregard part of the testimony of any witness. Gatter v. Gatter, supra, Barrila v. Blake, 190 Conn. 631, 639, 461 A.2d 1375 (1983); Rood v. Russo, 161 Conn. 1, 3, 283 A.2d 220 (1971); Lynk v. Lynk, 11 S.M.D. 233, 241 (1997); Fezaj v. Fezaj, supra; additional citations omitted.
The Petitioner's credibility was tarnished by the incorrect allegations of no child support payments during 1972 and 1973; by vague and/or inconsistent testimony as to certain facts and circumstances; by denying any knowledge of or the ability to obtain the Respondent's address and/or social security number; and by her failure to raise the issue of an arrearage with the Respondent during the several occasions of contact with him after his return to Connecticut in 1984.
D. Conclusion
The Respondent's objection to the Notice and Claim is sustained, and no arrearage is found, based upon the Petitioner's failure to prove the existence of an arrearage. Further, even if an arrearage does exist, no arrearage is imposed, based upon the defense of Implied Waiver.
BY THE COURT,
JOHN E. COLELLA, FAMILY SUPPORT MAGISTRATE.