Opinion
No. FA 89-0512121
October 25, 2005
MEMORANDUM OF DECISION
This is an appeal from a decision by the family support magistrate of an issue not previously addressed by the Superior Court. It was initiated by the State of Connecticut pursuant to the provisions of General Statutes § 46b-231(n). The State of Connecticut appeals from a ruling that the family support magistrate issued on March 9, 2005, interpreting the provisions of Public Act (P.A.) No. 04-100, which extended the support and medical obligations of unmarried parents of children who attain the age of eighteen and who are still in high school. Specifically, the state claims that the family support magistrate erred by refusing to extend the support order first entered in 1990 to the child's nineteenth birthday or his graduation from high school, pursuant to P.A. 04-100 and in finding that the support order terminated by operation of law on the child's eighteenth birthday. The issue is whether P.A. 04-100 should be applied retroactively or prospectively. The magistrate asserts that support enforcement division and the attorney general are violating the rights of the defendant here and in other cases where retroactive enforcement of P.A. 04-100 is sought.
I FACTS
The State of Connecticut is a party plaintiff by way of the plaintiff mother and the parties' child, Joshua Jodoin (d.o.b. 11/8/85), who the state asserts has previously received Temporary Aid for Needy Families (TANF) as administered through the Department of Social CT Page 13351-jl Services of the State of Connecticut and because the plaintiff mother is presently receiving support enforcement from the State of Connecticut. The action commenced with an acknowledgment of paternity by the defendant on October 13, 1989. The initial support order against the defendant was entered on May 11, 1990. Since that date, there have been eight separate contempt actions brought by the State of Connecticut, which have resulted in more than thirty-six court appearances. The court proceeding which is the subject of this appeal took place at a hearing on March 9, 2005, on a "continuing" contempt citation alleging that the defendant was in contempt for failure to pay court-ordered child support. At that hearing, the support enforcement officer informed the magistrate that the child had turned eighteen years of age, but that support enforcement was continuing to seek to collect the current support order in addition to payments on the arrearage because the child was still enrolled in high school, pursuant to P.A. 04-100.
This is the eighth contempt citation dated November 29, 2004, with the initial court date on January 26, 2005. On that date, the family support magistrate found an arrearage of $10,281.81 owed to the plaintiff and $1,203.46 owed to the state. The defendant CT Page 13351-ju was to pay the plaintiff's arrears in full by 10 a.m. on March 9, 2005, and if he paid the state's arrears as well, the parties would be excused due to full compliance. (Hutchinson, F.S.M.) Although the file does not indicate any actual finding of contempt, however, the matter was "continued for compliance."
The magistrate refused to extend the support order to the child's nineteenth birthday or his graduation from high school and further found that the ongoing support order terminated by operation of law on November 8, 2004 (the date of the child's eighteenth birthday). (Lifshitz, F.S.M.). The magistrate further ordered support enforcement to modify or adjust its record to reflect the termination of the order effective November 8, 2004, holding that the Public Act that went into effect on October 1, 2004, for nonmarital situations extending support to the age of nineteen or the graduation from high school only pertained to orders entered on or after October 1, 2004. He ordered support enforcement to modify or adjust its records to reflect the termination of the order effective November 8, 2004.
The State of Connecticut, by the attorney general, filed the appeal from the family support magistrate pursuant to General Statutes § 46b-231(n) on March 23, 2005. The court allowed counsel to file a brief in support of its appeal, and oral argument was held on July 5, 2005. Neither the plaintiff mother nor the defendant appeared at the hearing on the appeal nor CT Page 13351-jm filed any memoranda.
The jurisdictional requirements of the appeal section have been satisfied. It is clear that the Superior Court may affirm the decision of the family support magistrate or remand the case for further proceedings. In addition, the Superior Court may reverse or modify the decision if substantial rights of the plaintiff/appellant have been prejudiced because of the decision of the family support magistrate. General Statutes § 46b-231(n)(7). The test for determining whether a party is aggrieved by a particular decision is two-fold: (1) the party claiming to be aggrieved must have a specific, personal and legal interest in the subject matter of the decision, and (2) the party must show that this personal and legal interest has been specially and injuriously affected by the decision. Newman v. Newman, 235 Conn. 82, 103, 663 A.2d 980 (1995).
This court finds that because the magistrate terminated the child support owed both to the plaintiff mother and the state of Connecticut as of the date of the child's eighteenth birthday, specific, personal and legal interests have been specially and injuriously affected. The court, therefore, has jurisdiction to consider this timely appeal because the state is aggrieved by Magistrate Lifshiftz' decision.
II STANDARD OF REVIEW
The question of whether the review is plenary or whether it is an abuse of discretion standard is not based on whether it is a domestic relations case but is based on the nature of the particular issue under consideration. Unkelbach v. McNary, 244 Conn. 350, 366, 710 A.2d 717 (1998). Statutory construction is a question of law which requires plenary review. Charles v. Charles, 243 Conn. 255, 258, 701 A.2d 650 (1997).
The issue under consideration deals with the statutory interpretation of P.A. 04-100; specifically whether the act should be applied retroactively or prospectively. CT Page 13351-jn This is an issue of statutory construction, a question of law, and therefore the review is plenary. New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 599, note 7, 717 A.2d 713, (1998); Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995).
III DISCUSSION
Public Act 04-100 §§ 1 through 4, became effective October 1, 2004. It amended various family law statutes to extend the child and medical support obligation of unmarried or never married parents of children in need of support until the child either completes the twelfth grade or attains the age of nineteen, whichever occurs first, to be in parity with the statute requiring divorced parents to provide post-majority child support. At issue is whether P.A. 04-100 is to be applied retroactively or prospectively.
The public act amended subsections of General Statutes § 17b-745, § 46b-171, § 46b-172 and § 46b-215 adding the following language: "If such person is unmarried, a full-time high school student and residing with the custodial parent, such support shall continue according to the parents' respective abilities, if such person is in need of support, until such person completes the twelfth grade or attains the age of nineteen, whichever first occurs."
Compare P.A. 04-100 with P.A. 94-61, which amended General Statutes § 46b-84 by inserting a new subsection (b) to read: "If there is an unmarried child of the marriage who has attained the age of eighteen, is a full-time high school student and resides with a parent, the parents shall maintain the child according to their respective abilities if the child is in need of maintenance until such time as such child completes the twelfth grade or attains the age of nineteen, whichever first occurs. The provisions of this subsection shall apply only in cases where the decree of dissolution of marriage, legal separation or annulment is entered on or after July 1, 1994 [the effective date of the amendment]."
This issue was addressed recently in D'Eramo v. Smith, 273 Conn. 610, 872 A.2d 408 (2005). "Whether to apply a statute retroactively or prospectively depends upon the intent of the legislature in enacting the statute . . . In order to determine the legislative intent, we utilize well established rules of statutory construction. [The court's] point of departure is General Statutes § 55-3, which states: `No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have retrospective effect.' The obligations referred to in the statute are those of substantive law . . . Thus, we have uniformly interpreted § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only . . . Andersen Consulting, LLP v. Gavin, 255 Conn. 498, 517, 767 A.2d 692 (2001); see also Reid v. Zoning Board of Appeals of the Town of Lebanon, 235 Conn. 850, 859 n. 6, 670 A.2d 271 (1996) ('[i]t is a rule of construction that legislation is to be applied prospectively unless the legislature clearly expresses an intention to the contrary'). The rule is rooted in the notion that it would be unfair to CT Page 13351-jo impose a substantive amendment that changes the grounds upon which an action may be maintained on parties who have already transacted or who are already committed to litigation . . . In civil cases, however, unless considerations of good sense and justice dictate otherwise, it is presumed that procedural statutes will be applied retrospectively . . . Procedural statutes have been traditionally viewed as affecting remedies, not substantive rights, and therefore leave the preexisting scheme intact . . . [A]lthough we have presumed that procedural or remedial statutes are intended to apply retroactively absent a clear expression of legislative intent to the contrary . . . a statute which, in form, provides but a change in remedy but actually brings about changes in substantive rights is not subject to retroactive application . . . While there is no precise definition of either [substantive or procedural law], it is generally agreed that a substantive law creates, defines and regulates rights while a procedural law prescribes the methods of enforcing such rights or obtaining redress." (Citations omitted; internal quotation marks omitted.) D'Eramo v. Smith, supra, 273 Conn. 620-21; see also State v. Farady, 268 Conn. 174, 196, 842 A.2d 567 (2004).
If a determination is made that the statute constitutes a substantive change to the statutory scheme, then it is presumptively prospective in the absence of any clear expression of legislative intent to the contrary. D'Eramo v. Smith, supra, 273 Conn. 623. "This presumption in favor of prospective applicability, however, may be rebutted when the legislature clearly and unequivocally expresses its intent that the legislation shall apply retrospectively . . . Where an amendment is intended to clarify the original intent of an earlier statute, it necessarily has retroactive effect." (Internal quotation marks omitted.) Oxford Tire Supply, Inc. v. Commissioner of Revenue Services, 253 Conn. 683, 692, 755 A.2d 850 (2000). In determining the intended effect of a later enactment on earlier legislation, two questions must be asked. "First, was the act intended to clarify existing law or to change it? Second, if the act was intended to make a change, was the change intended to operate retroactively?" (Internal quotation marks omitted). CT Page 13351-jp Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 540, 489 A.2d 363 (1985). See also State v. Connecticut State Board of Labor Relations, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 94-0053361 (May 5, 1995) ( 14 Conn. L. Rptr. 260, 261). It is the general rule that "when a legislative act is intended to clarify existing law it necessarily has retroactive effect." (Internal quotation marks omitted). Reid v. Zoning Board of Appeals, 235 Conn. 850, 859 n. 5, 670 A.2d 1271 (1996). "[A]n amendment that is intended to clarify the original intent of an earlier statute necessarily has retroactive effect." Bhinder v. Sun, 263 Conn. 358, 369, 819 A.2d 822 (2003).
Public Act No. 04-100 §§ 1-4 amended various state statutes adding the following language in order to extend the child and medical support obligations of unmarried parents of unmarried children. "If [the child] is unmarried, a full-time high school student and residing with the custodial parent, such support shall continue according to the parents' respective abilities, if such person is in need of support, until such person completes the twelfth grade or attains the age of nineteen, whichever first occurs." The first question for this court to address is whether this created a substantive right or was meant to be remedial in nature.
The court first looks at the actual language of the statute which does not indicate any limitations or intent as to whether the legislation was to be applied retroactively or prospectively. There are no words in the added language which would either act to limit its application or indicate an intent to apply the statute retrospectively.
The state argues that the public act is a remedial statute, in that it was enacted to equalize the treatment of children in need of support and maintenance, regardless of the marital status of their parents. Although its intention is to create parity between children of divorced and children of unmarried parents, this statute is not an amendment or a clarification of a statute. The effect of the statute constitutes a substantive change in that it imposes an CT Page 13351-jq enforceable obligation where one did not previously exist. In the absence of any clear expression of legislative intent to the contrary, the public act would be presumptively prospective. D'Eramo, supra, 273 Conn. 623.
In reviewing the legislative history of Public Act 04-100, the court does not find any expression of legislative intent to the contrary. The language of P.A. 04-100 provides no indication as to whether the legislature intended the statute to apply prospectively only or retrospectively as well. Finding nothing in the public act itself, the court then must look to the legislative history of this statute and also that of P.A. 94-61.
P.A. 94-61 amended the statute regarding support of minor children of married parents in order to expand the jurisdiction so that courts could impose an obligation on either parent to provide financial support to their children after they reached the age of 18. At the judiciary committee, a representative of the Connecticut Bar Association commented that the proposal was "specific and intentionally narrow in scope," it seeking to "put the children of divorced families on a more equal footing with children of intact families."
In the introduction of P.A. 04-100 on the House of Representatives floor, Representative Chris Stone remarked:
P.A. 04-100 was introduced to the Connecticut legislature as Senate Bill 596.
This bill incorporates several of the characteristics or several of the requirements that we presently have for married couples who have children who are engaged in divorce proceedings into the provisions presently in the books for Family Court magistrates and collection of child support for unmarried individuals. Most primarily and substantively, the bill extends the obligation of child support for non-married individuals who have children to a — until the child is nineteen years old or graduates from high school, whichever occurs first. That's the present law for individuals who are married and have children and who subsequently get divorced and is a child support obligation.
Currently, under the family court magistrate CT Page 13351-jr provisions support can only be paid until the child's eighteenth birthday. So there's some extension. And it's, again, designed to make our laws consistent regarding child support obligation.
. . . [I]t certainly follows the intent of extending child support in the married/dissolution cases to these non-married family support cases. Children oftentimes do not graduate from high school until after their 18th birthday, are still dependents of their parents. And I think this certainly is good public policy. (Emphasis added.)
Although the stated purpose of Public Act 04-100 was to "treat children in need of support the same, regardless of the marital status of the parents" and to "create parity between children of divorces and children of unmarried parents" (see Report on S.B. 596 Favorably Reported by Judiciary Committee; testimony of Diane Frey, Judiciary Committee public hearing, March 15, 2004; testimony of Stephen Ment, Judiciary Committee public hearing, March 15, 2004), no remarks were made either during the Judiciary Committee's public hearing or during debate either in the House or Senate which would indicate an intention to apply the statute in a remedial manner, or more particularly, retroactively.
Based on the legislative history of these statutes, it appears that the remarks do not clearly and unequivocally express a legislative intent for either of them to apply retroactively. The remarks do indicate that P.A. 04-100 was intended to extend the same rights of support to children born to unmarried parents as previously granted to children of divorced parents under General Statutes § 46b-84(b).
The court has examined several other statutes in family law which dealt with similar scenarios. Public Act 94-61 amended General Statutes § 46b-84(b) which initially represented the major change in authorizing the court to order support until a minor child completed twelfth grade or attained the age of nineteen. The statute set forth that it applied only "where the decree of dissolution of marriage, legal separation or annulment is entered on or after July 1, 1994," which CT Page 13351-js was the effective date of the statute). The state argues that the absence of any language limiting the applicability of P.A. 04-100 is instructive, and since the legislature did not limit the effective date, it was intended to be remedial and therefore applied retroactively. What the state seeks to do is impose post-age eighteen support on the defendant where the obligation did not previously exist. The court agrees that there is not limiting language in the statute. However, this is not the controlling test. The controlling test is whether the statute creates substantive rights. The court finds that this represents a substantive change and is not merely remedial in nature.
This determination is consistent with the decision in Hunter v. Hunter, 177 Conn. 327, 416 A.2d 1201 (1979), which dealt with the question of whether the change in the statute which allowed courts to incorporate into dissolution of marriage decrees written separation agreements providing for education and support of children beyond the age of eighteen operated retroactively or prospectively. The Supreme Court found that the amendment to the statute brought about changes in "substantive rights of parties to a cause of action for dissolution of marriage involving orders concerning children, and established a jurisdictional ground . . . under which the [court] may act" which effect "upon the liability of the supporting parent . . . is not inconsequential." Id., 332. "Legislation which . . . increased statutory liability has generally been held to be substantive in nature. Moreover, a statute which, in form, provides but a change in remedy but actually brings about changes in substantive rights is not subject to retroactive application." (Citations omitted.) Id., 332. The court held that the amendment to that statute must be construed to operate prospectively.
Since it appears that neither the language nor the legislative history of P.A. 04-100 indicates retrospective application, the only remaining determination is whether extended support provisions of the statute can be applied to the present case. Initial support orders were entered on May 11, 1990, after an CT Page 13351-jt action was commenced by a paternity petition, and there have been numerous court actions consisting of contempt citations since that date. The effective date of this statute was October 1, 2004. General Statutes § 1-1(u) provides: "The passage or repeal of an act shall not affect any action then pending." That statute has been interpreted to mean that "[s]tatutes should be construed retroactively only when the mandate of the legislature is imperative." (Internal quotation marks omitted.) Adamchek v. Board of Education, 174 Conn. 366, 369, 387 A.2d 556 (1978). "The cases considering the construction of amending statutes, if they are to have effect on pending actions, must say so clearly." Family Financial Services, Inc. v. Spencer, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 92 0300008 (January 27, 1995).
The state appears to argue that the court may construe the public act to permit extension of support to those children who are receiving support pursuant to orders prior to October 1, 2004, and this would not be an impermissible retroactive modification of the support order. The court is not insensitive to the state's argument that to do otherwise will result in countless children of unmarried parents losing support at the age of eighteen, while children of divorced parents are entitled to receive support through the age of nineteen or completion of high school., The state's argument is legally unavailing. The crux of the issue was whether the act in question was substantive or procedural (remedial). It is clearly substantive — affecting the legal rights and obligations of those whose support rights and obligations were established prior to October 1, 2004 as the magistrate correctly ruled.
The state did not raise an equal protection argument, and therefore the court will not consider whether one if made would be successful. For a detailed analysis of an equal protection argument as it related to the provision of General Statutes § 46b-84 limiting application of that statute, under which a minor child had a right to be maintained by his parents past the age of eighteen, to cases in which the dissolution decree was entered on or after a certain date, offended the equal protection guarantee of the federal constitution, CT Page 13351-jv see Cuillo v. Cuillo, 46 Conn.Sup 553, 763 A.2d 1105 (2000).
The court notes that for eleven years, children of married and non-married parents were treated differently.
Nor would the result be different when a pre-October 1, 2004 support order is modified after that date. The determinative issue is when the payor's obligation was fixed by court order.
The appeal is dismissed. The matter is remanded for a determination of any arrearage yet outstanding and for orders consistent with this opinion.