Opinion
NNHFA185043778S
03-11-2019
Yungmi Yi v. Kwanghyoung Yi
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Klau, Daniel J., J.
MEMORANDUM OF DECISION RE MOTION TO OPEN (#107)
Klau, J.
On September 14, 2018, the court entered judgment affirming in part, and reversing in part, an order of the family support magistrate, Nieves, F.S.M., adjudicating the defendant in contempt for failure to pay child support. The order set a purge of $50,000 and ordered the defendant incarcerated if he did not pay $10,000 by September 17, 2018. On appeal, this court determined that the evidence of the defendant’s present financial status did not support the purge order.
The State of Connecticut now moves to open the judgment. The state argues that the plaintiff did not have proper notice of the hearing that preceded the judgment and that the judgment, therefore, violates the plaintiff’s due process rights. The state asks the court to permit the plaintiff to participate in the appeal by scheduling a new hearing. For the following reasons, the court grants the state’s motion.
I.
A. Proceedings before the Family Support Magistrate
The record reflects that the parties were divorced in New York in August 2008. The defendant, who subsequently remarried, lives in Connecticut. The plaintiff currently resides in Georgia.
The New York divorce decree required the defendant to pay the plaintiff $395.58 per week in child support. With the exception of a single payment of $13,000 in 2013, which appears to have resulted from an interception of a federal or state tax refund, the defendant has not made a single child support payment. The arrearage exceeds $150,000.
In 2018, the Division of Child Support Services for Fulton County, State of Georgia (Georgia DCSS), commenced a child support enforcement action on behalf of the plaintiff under the Uniform Interstate Family Support Act (UIFSA). The UIFSA "governs the procedures for establishing, enforcing and modifying child and spousal support, or alimony, orders, as well as for determining parentage when more than one state is involved in such proceedings." Hornblower v. Hornblower, 151 Conn.App. 332, 333, 94 A.3d 1218 (2014). Through an administrative process established under the UIFSA, the Georgia DCSS contacted the State of Connecticut to seek assistance in enforcing the child support order against the defendant. Specifically, the division contacted Support Enforcement Services (SES), our state’s support enforcement agency for UIFSA matters.
General Statutes § 46b-301 et seq.
Under the UIFSA, the Georgia DCSS is the "initiating tribunal," the State of Georgia is the "initiating state," the State of Connecticut is the "responding state," and SES is the "responding tribunal." See General Statutes § 46b-302.
SES responded by commencing an IV-D child support enforcement action against the defendant. See Yi v. Yi, Superior Court, judicial district of New Haven, Docket No. 644-FA-17-0000141-S. Although the plaintiff is formally named in the action, she did not file an appearance. SES subsequently registered the New York divorce judgment in Connecticut and filed an application for contempt, alleging that the defendant wilfully failed and refused to make child support payments.
IV-D support case means a case where a designated state agency is "providing child support enforcement services under Title IV-D of the Social Security Act ..." General Statutes § 46b-231(b)(13).
The state acknowledges in its motion to open, "[i]t is uncommon for the out of state petitioner to file an appearance" when SES is enforcing a child support order under the UIFSA.
The family support magistrate held evidentiary hearings on July 16 and August 6, 2018. The defendant testified in person at both hearings. The plaintiff participated by telephone. After the hearing, the magistrate found the defendant in contempt and ordered a purge of $50,000. The magistrate further ordered the defendant incarcerated unless he paid $10,000 towards the full purge amount by September 17, 2018.
B. The Defendant’s Appeal of the Family Support Magistrate Orders
The defendant timely appealed the family support magistrate’s final orders. See General Statutes § 46b-231(n)(1) ("[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"). The defendant appeared before this court on September 13, 2018 to argue his appeal. When the hearing commenced, the defendant’s attorney presented the court with proof that he had served the appeal in accord with § 46b-231(n)(2). In particular, he showed the court the certified mail receipt demonstrating that he had sent a copy of the appeal to the Attorney General’s office (AGO), which represents SES in court. Counsel also indicated that the plaintiff had never filed an appearance in the family support magistrate proceeding.
Section 46b-231(n)(2) provides: "Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district in which the decision of the family support magistrate was rendered not later than fourteen days after filing of the final decision with an assistant clerk assigned to the Family Support Magistrate Division or, if a rehearing is requested, not later than fourteen days after filing of the notice of the decision thereon. In a IV-D support case, such petitions shall be accompanied by a certification that copies of the petition have been served upon the IV-D agency as defined in subsection (b) of this section and all parties of record. Service upon the IV-D agency may be made by the appellant mailing a copy of the petition by certified mail to the office of the Attorney General in Hartford." The term "IV-D agency" means "the Office of Child Support Services within the Department of Social Services ... [which is] authorized to administer the child support program mandated by Title IV-D of the Social Security Act." § 46b-231(a)(12). Pursuant to a cooperating agreement, the SES, which is located within the Connecticut Judicial Branch, assists "in administering the IV-D program for the State of Connecticut." Regs., Conn. State Agencies § 17b-179(a)-1(17).
The court acknowledged the proof of service on the AGO, but noted that no one from the AGO was present in court to represent SES or the plaintiff’s interests. The court recessed briefly to permit the defendant’s counsel, at the court’s direction, to contact the resident Assistant Attorney General and inquire whether the AGO intended to participate in the appeal. When the court reconvened, counsel explained that he had personally met with the resident Assistant Attorney General, who stated that the AGO did not intend to participate in the appeal. Based upon that representation, the court proceeded to hear oral argument on the defendant’s appeal.
On September 14, 2018, the court issued a memorandum of decision and final judgment reversing the family support magistrate’s purge order. The court determined the magistrate erred in setting a $50,000 purge and in ordering the defendant to pay $10,000 immediately to avoid incarceration, absent any evidence the defendant had a present financial ability to pay $10,000.
On November 9, 2018, the State of Connecticut filed a motion to open the judgment because the plaintiff did not receive notice of the defendant’s appeal and, therefore, had no opportunity to participate in the September 13, 2018 hearing. Accordingly, the state contends that the judgment violates the plaintiff’s constitutional right to due process of law.
The docket reflects that the plaintiff filed an appearance in this matter (but not the underlying UIFSA matter) on November 16, 2018.
II.
A.
Section 46b-231(n) authorizes appeals from final orders of a family support magistrate. Subsection 46b-231(n)(2) describes how such appeals must be served in a IV-D support case: "[S]uch petitions shall be accompanied by a certification that copies of the petition have been served upon the IV-D agency as defined in subsection (b) of this section and all parties of record . Service upon the IV-D agency may be made by the appellant mailing a copy of the petition by certified mail to the office of the Attorney General in Hartford." (Emphasis added.)
There is no dispute that the IV-D agency was properly served when the defendant sent a copy of his petition to the AGO via certified mail. But was the defendant also required to serve the plaintiff personally, particularly given that she never filed an appearance in the support enforcement action? The answer depends on whether the plaintiff was a "party of record."
The court is unaware of any case law or statutory provision that defines "party of record" under § 46b-231(n)(2). However, the phrase has appeared in other statutes, including General Statutes § 4-183, which governs appeals to the Superior Court from final orders of administrative agencies. Although the current revision of that statute requires service of the appeal on the administrative agency and "each party listed in the final decision"; see § 4-183(c); earlier revisions required service of the administrative appeal upon all "parties of record." General Statutes § 4-183(b) (Rev. 1989). Our Supreme Court interpreted that phrase to include every agency or person named as a party in the agency’s decision, regardless of whether the named party had filed an appearance. See e.g., Donis v. Board of Examiners in Podiatry, 207 Conn. 674, 680, 542 A.2d 726 (1988); Hillcroft Partners v. Commission on Human Rights & Opportunities, 205 Conn. 324, 326-27, 533 A.2d 852 (1987); Newtown v. Dept. of Public Utility Control, 3 Conn.App. 416, 419, 488 A.2d 1286 (1985).
The court construes "party of record" under § 46b-231(n) consistent with how the Supreme Court construed that phrase under earlier revisions of § 4-183. Accordingly, the court concludes that the plaintiff was a party of record for the purpose of an appeal under § 46b-231(n) and, therefore, should have been served with a copy of the defendant’s petition. Given the defendant’s noncompliance with this statutory obligation, the court declines to address the state’s constitutional due process argument. The lack of service alone is sufficient reason to grant the state’s motion to open.
When the court issued its original ruling, the court did not believe that a nonappearing plaintiff was a "party of record." Upon further consideration, the court now believes that its original interpretation of the statute was incorrect and that service on a nonappearing plaintiff is required. Generally, SES is required to notify an out-of-state plaintiff about any hearings in Connecticut. See Regs., Conn. State Agencies § 17b-179(m)-10(b) (requiring SES to notify parties about hearings). But, as this case illustrates, sometimes SES does not fulfill its notice obligations. Interpreting § 46b-231(n) to require the appealing party to serve the nonappearing plaintiff will ameliorate the consequences of such administrative mistakes.
B.
The above conclusion does not terminate the court’s analysis. The court must address, sua sponte, an issue that the state did not raise in its motion to open, namely, whether the failure to timely serve the plaintiff constitutes a subject matter jurisdiction defect that requires dismissal of the appeal. Reinke v. Sing, 328 Conn. 376, 382, 179 A.3d 769 (2018) ("[t]he subject matter jurisdiction requirement ... may be raised by a party, or by the court sua sponte, at any stage of the proceedings ..." [internal quotation marks omitted]). For the following four reasons, the court concludes that the time frame for filing and serving an appeal under § 46b-231(n) is not jurisdictional and that dismissal of the appeal is not required as a matter of law.
First, the "conclusion that a time limit is subject matter jurisdictional has very serious and final consequences." Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 266, 777 A.2d 645 (2001). Thus, our Supreme Court has "stated many times that there is a presumption in favor of subject matter jurisdiction, and we require a strong showing of legislative intent that such a time limit is jurisdictional." Id. As always, the court begins its analysis with the text of the statute to ascertain legislative intent.
The text of § 46b-231(n) is completely silent concerning whether service of an appeal on the required parties, within the time frame for filing the appeal, is jurisdictional. By contrast, § 4-183, which governs administrative appeals, expressly addresses whether the time limits for filing and serving such appeals are jurisdictional. Section 4-183 requires service of the appeal on the agency and all parties of record within forty-five days of the agency’s decision. But § 4-183(c)(1) states that "the person appealing shall also serve a copy of the appeal on each party listed in the final decision at the address shown in the decision, provided failure to make such service within forty-five days on parties other than the agency that rendered the final decision shall not deprive the court of jurisdiction over the appeal ." (Emphasis added.)
This proviso necessarily implies that the General Assembly intended timely service on the administrative agency (as opposed to other parties) to be a jurisdictional requirement. It follows that the absence of a similar proviso in § 46b-231(n) means that nothing in the statutory text counters the strong presumption against construing time limits as jurisdictional.
The court has also reviewed the legislative history of § 46b-231(n). That history is silent on the question of whether the General Assembly intended the time limits for filing and serving an appeal to implicate a Superior Court’s subject matter jurisdiction.
Second, whereas § 4-183 authorizes appeals from executive branch agencies to the Superior Court, i.e., appeals from one branch of government to another branch, § 46b-231(n) authorizes appeals of matters that are already pending within the Judicial Branch . The Family Support Magistrate Division is a "division of the Superior Court." § 46b-231(b)(6). Thus, when a party who is aggrieved by a family support magistrate order files an appeal under § 46b-231(n), the party is not invoking the Superior Court’s subject matter jurisdiction in the first instance. Rather, the statute merely extends or continues a jurisdiction that the Superior Court already has over a particular matter. Thus, it is reasonable to interpret the fourteen-day time period for filing and serving an appeal under § 46b-231(n) as a nonjurisdictional time frame that the legislature intended to expedite the orderly flow of appeals from family support magistrate orders.
This intention is consistent with the legislative purpose behind the enactment of the Connecticut Family Support Magistrate’s Act, § § 46b-231 through 46b-234. See O’Toole v. Hernandez, 163 Conn.App. 565, 572, 137 A.3d 52, cert. denied, 320 Conn . 934, 134 A.3d 623 (2016) (family support magistrate act enacted in response to federal legislation "providing federal funds for states that complied with federal requirements for the expeditious enforcement of child support orders in cases arising under Title IV-D" [internal quotation marks omitted]).
Third, the state has not even suggested that the appeal should be dismissed for lack of jurisdiction due to the lack of timely service on the plaintiff. The state seeks only to open the judgment to permit a new hearing.
Fourth, in Perry v. Perry, 222 Conn. 799, 810-11, 611 A.2d 400 (1992), overruled on other grounds by Bryant v. Bryant, 228 Conn. 630, 636 n.4, 637 A.2d 1111 (1994), and Tomasso Bros., Inc. v. October Twenty-Four, Inc., 230 Conn. 641, 658-59, 646 A.2d 133 (1994), the Supreme Court rejected a constitutional challenge to the public act that created the family support magistrate division of the Superior Court. The Supreme Court did so in part because "a litigant disappointed by the final decision of a family support magistrate has an extensive statutory right of appeal to the Superior Court." Perry v. Perry, supra, 222 Conn. 811. Given the importance of an extensive right of appeal to upholding the constitutionality of the public act, the court is disinclined to construe the short, fourteen-day filing and service requirement under § 46b-231(n) as a hard and fast jurisdictional deadline.
III.
The court next addresses whether, notwithstanding the preceding analysis, two Appellate Court decisions from the mid-1990s compel the court to conclude that the time limits for service in § 46b-231(n) implicate the court’s subject matter jurisdiction. See Greene v. Bynum, 46 Conn.App. 1, 698 A.2d 334 (1997); Sherman v. Sherman, 41 Conn.App. 803, 678 A.2d 9 (1996).
In Sherman, the defendant sought to appeal a family support magistrate’s order by filing the court’s standard appeal form. Sherman v. Sherman, supra, 41 Conn.App. 804-05. The trial court dismissed the appeal because the defendant had not also filed a separate petition, as § 46b-231(n) required, setting forth the reasons for the appeal and showing how he was aggrieved. Id., 805. On appeal, the Appellate Court held that, by failing to file a petition showing aggrievement, the defendant lacked standing to appeal. Id., 808. Accordingly, the Appellate Court affirmed the trial court’s judgment dismissing the appeal for lack of subject matter jurisdiction. Id.
In Greene, the defendant sought to appeal a family support magistrate order by filing a form with the case caption and entitled "Petition." Greene v. Bynum, supra, 46 Conn.App. 3. But the petition "contained no reasons for appeal and nothing to indicate any error or defect from which the defendant sought redress. It was the equivalent of no petition at all." Id., 4. Similar to Sherman, the Appellate Court held that the defendant lacked standing to appeal and that the trial court lacked subject matter jurisdiction to consider the merits of the appeal. Id., 5. Significantly, the Appellate Court declined to consider several of the State of Connecticut’s other grounds for challenging the trial court’s judgment, including the defendant’s alleged failure to timely serve the petition on the named plaintiff, i.e., the very issue before this court. Id., 2-3.
If the present case involved a party’s failure to file a proper petition under § 46b-231(n), the decisions in Sherman and Greene would be controlling appellate authority and the court would have no choice but to dismiss the defendant’s appeal. However, the sufficiency of the defendant’s petition is not in question.
The court will not extend the holdings of Sherman and Greene beyond their specific facts. The court declines to do so in large part because those cases were decided before Williams v. Commission on Human Rights & Opportunities, supra, 257 Conn. 258, and other cases that clarified confusion in the law regarding the significant legal difference between (1) a trial court’s authority to act pursuant to a statute, and (2) its subject matter jurisdiction. See e.g., Reinke v. Sing, 328 Conn. 387; Amodio v. Amodio, 247 Conn. 724, 728, 724 A.2d 1084 (1999). "[T]he court’s authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute." (Internal quotation marks omitted.) Id. The law is now settled that "[s]ubject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it ... A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it ... Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action." (Citation omitted; internal quotation marks omitted.) Reinke v. Sing, supra, 328 Conn. 389.
This court’s legal authority or competence to decide the class of cases to which the present action belongs— child support enforcement— cannot be questioned. See General Statutes § 46b-1 (defining jurisdiction of Superior Court for family matters). Hence, the court must resolve the issue of subject matter jurisdiction in favor of entertaining the defendant’s appeal unless § 46b-231(n) clearly evinces the General Assembly’s intent to deprive the court of subject matter jurisdiction if the statute’s filing and serving requirements are not timely met. For the reasons stated in Part II, supra, § 46b-231(n) does not evince such an intent.
IV.
For all of the preceding reasons, the court holds that the fourteen-day deadline for filing and serving a petition under § 46b-231(n) is not jurisdictional. Instead, the deadline is intended to expedite the orderly flow of appeals from family support magistrate orders.
The conclusion that the filing and service deadline is not jurisdictional, however, does not mean that parties may ignore the deadline with impunity. A party’s failure to comply with the time deadlines in § 46b-231(n) still exposes the party’s appeal to a motion to dismiss, albeit on nonjurisdictional grounds. Absent a timely motion to dismiss, however, the defect may be deemed waived. And even if a timely motion to dismiss is filed, a court may exercise its discretion and excuse the defect under certain circumstances. Because neither the state nor the plaintiff have moved to dismiss the defendant’s appeal— and any such motion at this juncture would be untimely— the court concludes that any objection to the appeal based on the lack of timely service on the plaintiff has been waived.
The court leaves until another day the question of whether good cause, excusable neglect or some other standard governs a party’s failure to strictly comply with the requirements of § 46b-231(n).
Having determined that the defendant’s appeal should not be dismissed, the state’s motion to open is GRANTED.
SO ORDERED.