Opinion
No. FA00-0630119S
November 2, 2007
MEMORANDUM OF DECISION
The above-captioned matter comes before this Court by way of appeal from a ruling of the Family Support Magistrate Division, FSM McCarthy, wherein it is claimed that the family support magistrate, in connection with contempt proceedings against the Appellant obligor, subjected him to a continuing purge conditioned upon his future compliance with support orders entered by the court.
The relevant facts are not in dispute. This action was commenced against the Appellant in 1999 for the support of his two minor children. Since that time, several contempt proceedings have been brought against the Appellant as a result of his nonpayment of support as ordered by the court. This has resulted in an accumulation of arrearages (owed in part to the State and in part to the mother of the children) totaling almost $17,000 as of January 8, 2007. Following a hearing conducted before FSM McCarthy on May 9, 2007, the Appellant was once again adjudicated in contempt and remanded to the custody of the Commission of Corrections upon his failure to pay a lump sum purge in the amount of $900. The matter was continued one week (to May 16, 2007) for review with the understanding that, should the Appellant satisfy the purge, he was to return to court on June 20, 2007. The matter returned to court on May 16, 2007, however the Appellant had paid the purge amount and apparently gained his release. After the support recipient noted the June 20th date, Appellant's counsel asked that the matter be marked "off" in view of the Appellant's payment of the purge amount. In support of that request, counsel cited Iturrino v. Frison, Superior Court for the Judicial District of Norwich, FA99-0117474 ( 2007 Ct.Sup. 361, 42 Conn. L. Rptr. 626; January 5, 2007; Randolph, J.) In his appeal, the Appellant claims that the family support magistrate denied the request to mark the matter off and improperly ordered "a continuing purge of paying the weekly child support" with a continuance date of June 20, 2007. Petition for Appeal of Family Support Magistrate Decision dated 5/21/07.
This Court has had the opportunity to review the parties' respective memoranda of law and, more importantly, the transcript of the proceedings conducted on May 9th and May 16th, respectively. The appeal, as framed, presents an interesting legal issue. That issue, however, is not presented by the facts of the case. In Iturrino, supra, the family support magistrate found the obligor in contempt, remanded him to the custody of the Commissioner of Corrections and set a purge amount of $1,000. The family support magistrate further ordered, that, in the event the obligor "purged out," the matter was continued to a specific future date and, further, specifically ordered that "a continuing purge is payment of the weekly support order." It was in the context of these facts that Judge Randolph found that the family support magistrate had exceeded his authority in setting a continuing purge amount.
In this case, neither the May 9th transcript nor the May 16th transcript contains an order similar to that contained in Iturrino. Although the family support magistrate stated that he was going to have the Appellant come back and directed him to pay each week, there is no order imposing a continuing purge conditioned upon the making of those future support payments. Indeed, the order contained in the file unequivocally states "PURGE PAID." From all that appears in the record, the family support magistrate simply directed the Appellant's return to court for the purpose of monitoring his compliance with the court's orders. A family support magistrate, confronted with a contemnor who has a history of prior contempts and an arrearage of almost $17,000, has the authority, as part of the contempt process, to require the obligor's continued appearance before the court for the purpose of monitoring his future compliance with court orders. In the event an obligor, after satisfying a purge, were to be ordered to return to court on a future date for the purpose of monitoring his or her compliance and not be in compliance with the court orders at that subsequent court appearance, a legitimate question exists as to the court's ability to immediately exercise its contempt powers without further process. That issue, however, is not presented by the facts of this case.
This is particularly so in view of the further proviso, contained in the order on file, that Appellant's attendance could be excused by the Support Enforcement Division if he was in compliance with his obligations.
The appeal is dismissed.