Opinion
FSTFA164030079S
01-18-2017
Timothy Hauck v. Dee Beth Mueller
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE RESPONDENT'S APPEAL FROM THE DECISION OF THE FAMILY SUPPORT MAGISTRATE DATED AUGUST 5, 2016 AND THE PETITIONER'S MOTION TO DISMISS THE SAME
Robert L. Genuario, J.
I. Background
On August 5, 2016, after an evidentiary hearing that occurred on March 21, 2016, the family court magistrate filed a memorandum of decision and entered certain orders requiring, inter alia, the respondent to pay $119.00 per week in child support for her four minor children, found an arrearage of child support payments in the amount of $10, 752.00 (as of December 20, 2015) and ordered the respondent to pay an additional $11.00 per week towards that arrearage. On August 23, 2016 the respondent through her attorney filed this appeal dated August 22, 2016 of the magistrate's decision. The appeal was accompanied by a document entitled " Schedule of Reasons for Appeal and Request for Extension of Time to File Appeal."
On the date of the evidentiary hearing, the respondent had four minor children. Since that time the respondent's oldest child has turned 18.
II. The Motion to Dismiss
The petitioner has moved to dismiss this appeal, asserting that the court lacks subject matter jurisdiction to hear the appeal because the appeal was not filed within fourteen days of the filing of the magistrate's final decision, contrary to the provisions of C.G.S. § 46b-231(n)(2). The pertinent language of C.G.S. § 46b-231(n)(2) states that
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 the assistant clerk assigned to the family support magistrate division or, if a rehearing is requested, not later than fourteen days after the filing of the notice of the decision thereon.C.G.S. § 46b-231(n)(2).
Since the motion to dismiss raises the issue of subject matter jurisdiction the court must consider and rule on the motion to dismiss prior to considering the merits of the respondent's appeal. Community Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 552, 698 A.2d 245 (1997).
The petitioner argues that the statutory time frame for taking an appeal is " not later than fourteen days after the filing of the final decision" (emphasis added) and that since the final decision was filed on August 5, 2016, the appeal was not taken until seventeen days after the filing of the decision and therefore is outside the statutory time frame for taking an appeal. And indeed, the court file reflects that the decision was filed on August 5, 2016 and the appeal was not filed until August 23, 2016. The petitioner further argues that in any event the respondent's attorney, by her own admission, acknowledges that she had notice of the decision not later than August 17, 2016, two days prior to the deadline for taking an appeal, and therefore the petitioner was not precluded from taking an appeal or filing a motion for extension of time to file an appeal within the fourteen-day time frame. The affidavit of the respondent's attorney certainly evidences that she had notice of the decision on August 17, 2016 and that her office had notice of the decision on or about August 15, 2016. The petitioner argues correctly that " [a] statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created. Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal. Dismissal is required in such a situation because, if the appellant lacks standing to appeal the case, the court lacks jurisdiction to hear the appeal." Sherman v. Sherman, 41 Conn.App. 803, 806-07, 678 A.2d 9 (1996) (citations omitted). In Sherman the Appellate Court applied these principles to an appeal filed pursuant to C.G.S. § 46b-231(n). Notably, the Sherman case did not involve the timing of the appeal, but rather, the failure of the appellant to file a petition setting forth the alleged error or defect from which the appellant sought redress as required by statute. In the case at bar the petitioner does not claim that the respondent failed to file a petition and indeed the respondent's " Schedule of Reasons for Appeal . . ." appears to satisfy that criteria.
In the case at bar the petitioner argues that the filing of the appeal seventeen days after the filing of the magistrate's decision is outside the statutory time frame. At least one superior court case has held that the appeal to the superior court of a magistrate's decision that is not taken within the statutory time frame is subject to dismissal. See Looney v. Burdick, 2000 WL 1658268. The Looney case, however, did not involve the issue presented in the case at bar in which the respondent claims that she was not notified of the magistrate's decision until at least August 15, 2016, substantially after the decision was filed.
The respondent argues that she did not receive notice of the decision until August 17, 2016, though the court finds that she had constructive notice of the decision on August 15, 2016 when her office apparently received the decision. A review of the court file confirms the statements in the affidavit of the respondent's counsel that there is no evidence or markings related to the magistrate's decision that indicates that the decision was mailed or transmitted to the respondent's counsel at any time by the clerk's office. Thus, it appears that the only reason the respondent knew of the decision when she did was because of counsel's diligence in affirmatively checking with the court support enforcement office, which eventually sent her notice of the decision. Accordingly the court finds that the clerk's office did not send notice to the respondent or her counsel and that the respondent and/or counsel's first notice of the decision was on August 15, 2016 which is the date of constructive notice. The petitioner argues that even if that is the case, respondent and or her counsel had notice within the applicable statutory appeal period and therefore she should have filed either her appeal or her motion for extension of time within the fourteen days of the filing of the decision. It was not impossible for her to do so.
However, the court is persuaded by the reasoning in Cagney v. Cagney, 1999 WL 22642 (1999) (Bishop, J.). In Cagney, the superior court, relying heavily on the decisions in Kron v. Thelen, 178 Conn. 189, 423 A.2d 857 (1979), and Kudlacz v. Lindberg Heat Treating Company, 49 Conn.App. 1, 712 A.2d 973 (1998), determined that the fourteen-day period for appealing a decision from a family court magistrate " begins to run on the day on which the party wanting to appeal is sent meaningful notice of the [magistrate's] decision." Cagney quoting Kudlacz . Quoting Kron, the Cagney court stated that " [u]ntil the prospective appellant has either actual or constructive notice that a decision has been reached, the right to appeal is meaningless." Cagney quoting Kron at 193. (Other citations and internal quotation marks omitted.) Based upon both respondent's counsel's affidavit and the court file, this court determines constructive notice was not received until August 15, 2016. Consistent with Cagney, Kron and Kudlacz, the respondent's time for appeal did not expire until fourteen days after that.
Moreover the respondent correctly points out that Connecticut General Statutes § 51-53 requires that unless a decision is made " in the presence of counsel . . . the clerk of the court shall immediately notify counsel and any appearing party, in writing by mail or electronic delivery of the decision, order, degree denial or ruling." C.G.S. § 51-53. In the case at bar, based upon a review of the court file and counsel's affidavit, this court concludes that such notice was not provided to respondent or her counsel.
This court does not need to address the hypothetical situation where the court file indicates notice was sent but appellant or counsel represents that notice was never received or when notice is delayed in the mail since these facts are not before the court. But see the discussion in Kudlacz .
Accordingly the court determines that the appeal was taken in a timely matter. The motion to dismiss is denied and the court will turn to the merits of the appeal.
III. The Merits of the Appeal
In its Memorandum of Decision, after issuing the support order of $119 per week as well as the order relating to the arrearage payment, the Court wrote: " This order is based on an upward deviation to minimum wage, in the best interest of the children, as the Court finds an order based on Respondent's actual ability would be unfair and inequitable for the support of four (4) children." Among the reasons articulated as the basis for the appeal the respondent asserts that the family support magistrate " did not articulate what the actual child support order is based upon the guidelines amount BEFORE any deviation upward or downward." (Emphasis in original).
In Favrow v. Vargas, 231 Conn. 1, 647 A.2d 731 (1994) our Supreme Court determined that C.G.S. § 46b-215a requires a trial court, prior to applying any deviation criteria " first to find the amount otherwise required by the guidelines schedule."
46b-215a establishes the Commission on Child Support Guidelines which is required to " issue child support and arrearage guidelines to ensure the appropriateness of criteria for the establishment of child support awards . . ."
Our Supreme Court " has stated that the reason why a trial court must make an on-the-record finding of the presumptive support amount before applying the deviation criteria is to facilitate appellate review in those cases in which the trial court finds that a deviation is justified . . . Kavanah v. Kavanah, 142 Conn.App. 775, 780, 66 A.3d 922 (2013) quoting Budrawich v. Budrawich, 132 Conn.App. 291, 299-300, 32 A.3d 328 (2011). A review of the magistrate's memorandum of decision and orders renders it clear that the magistrate did not make a finding of the amount of presumptive child support order dictated by the child support guidelines. The Favrow decision " requires the trial court first [to] determine on the record the amount of support indicated by the guidelines schedule before determining whether to deviate from that amount . . ." Wallbeoff v. Wallbeoff, 113 Conn.App. 107, 112, 965 A.2d 571 (2009) (Internal citations and quotations omitted.); see also, Unkelbach v. McNary, 244 Conn. 350, 369, 710 A.2d 717 (1998). Such a finding would " facilitate appellate review in those cases in which the trial court finds that a deviation is justified and will enable an appellate court to make an more informed decision on a claim that the amount of the deviation, rather than the fact of the deviation, constituted an abuse of discretion." Wallbeoff at 113. (Emphasis in original.) (Internal citations and quotations omitted.); see also, Kiniry v. Kiniry, 299 Conn. 308, 9 A.3d 708 (2010).
The defendant also argues that the magistrate's decision to incorporate an upward deviation because the respondent's " actual ability" to pay " would be unfair and inequitable for the support of four children" does not incorporate a finding as to what the defendant's earning capacity actually is, as required by Tanzman v. Meurer, 309 Conn. 105, 70 A.3d 13 (2013). While it is not absolutely clear to this court whether or not the basis for the magistrate's decision was a determination that the defendant had an earning capacity above her actual earnings, to the extent that such determination is the basis for the award, the court must make a determination as to the actual earning capacity of the respondent.
The impact on any order of the oldest child's subsequent 18th birthday can be appropriately considered by the court on remand.
Accordingly, pursuant to C.G.S. § 46b-231(n)(7) the decision is remanded for further proceedings not inconsistent with this opinion.
46b-215b states that the guidelines " shall be considered in all determinations of child support award amounts . . ."