Opinion
No. FA 04 0128908 S
July 8, 2011
MEMORANDUM OF DECISION ON APPEAL FROM FAMILY SUPPORT MAGISTRATE, and ON MOTION TO VACATE (#195) and MOTION FOR SANCTIONS (#198)
Before the court is plaintiff's appeal (#181), filed May 3, 2011, from an April 27, 2011, order of the Family Support Magistrate (Lifshitz, FSM). Also before the court are his motions to vacate (#195) and for sanctions (#198), both dated May 31, 2011.
I. AUTHORITY OF THIS COURT TO ACT UPON APPEAL
CONN. GEN. STAT. § 46b-231(n)(1) provides that a person who is aggrieved by a final decision of a family support magistrate (FSM) may obtain judicial review by way of appeal. Any such appeal must be filed not later than fourteen days following the decision appealed from.
Subsection (5) permits a party to apply for leave to introduce additional evidence, and plaintiff so requested. This court heard oral argument from the parties on both this request and the underlying appeal on June 7, 2011. The additional evidence offered consists in part of a current financial affidavit; the court rejects this proffer, as the issue before it is the correctness of the FSM's April 27 hearing, at which time plaintiff submitted an affidavit current as of that date. Also, he proffered documentation and testimony which have no bearing upon the issues before the FSM on that date, and the court rejected these offers as not germane to this proceeding. Accordingly, as directed by the statutes' subsection (6), the court decides this appeal on the strengths of the parties' arguments on June 7, and its review of the entire record, including a transcript of the hearing in question and the exhibits admitted below.
Subsection (7) of the statute provides that the court may reverse or modify the decision of the magistrate if substantial rights of the appellant have been prejudiced because the decision of the magistrate is: (A) in violation of constitutional or statutory provisions; (B) in excess of the statutory authority of the family support magistrate; (C) made upon unlawful procedure; (D) affected by other error of law; (E) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
II. PERTINENT PROCEEDINGS ON THE JUDICIAL AND MAGISTRATE'S DOCKETS
The parties to this action are the parents of one minor child. On May 19, 2005, the court (Swienton, J.) awarded them joint custody of their son and ordered plaintiff to pay child support of $50 weekly.
On May 28, 2010, the Support Enforcement Services Office filed a motion, dated April 23, 2010 (#147), seeking to have the child support order modified upwards to comply with child support guidelines. The processing of that motion has led to protracted squabbling between plaintiff on the one hand and Support Enforcement and Ms. Wiggins on the other. On July 13, 2010, the motion came before FSM Adams, who "raised" child support to $150 per week, as well as finding an arrearage of $1,100 and ordering an additional $30 weekly on the arrearage. On August 27, 2010, the matter came before FSM Adams a second time, in response to an August 26 motion filed by plaintiff (#153) to vacate the July 13 orders for what he alleged was a lack of service upon him of the motion to modify, and notice of any hearing thereon. On August 27, the FSM vacated his July 13 order; the notes of his order indicate, further, that "$50 a week in child support reinstated."
On September 1, the clerk's office notified all parties (including plaintiff, who by then had filed an appearance) that motion number 147 would be heard on September 27's short calendar. On September 15, 2010, plaintiff filed an "immediate motion to dismiss State of Connecticut #147 motion to modify" (#154). On September 27, plaintiff faxed to the court another motion, this one dated September 26 (#155), captioned "immediate motion to set aside and/or continue surprised above action for medical reasons to seek counsel." This motion was apparently brought to the attention of Judge Shluger, to whom motion number 147 had been assigned on the September 27 short calendar. Plaintiff was absent. The court found that plaintiff had notice of the hearing on that date but was voluntarily absent, and reentered an order of $150 per week child support, retroactive to May 28. The court entered no orders on either motions 154 or 155.
Next, on November 21, plaintiff filed motion #157 which is captioned "motion to immediately vacate apparent September 27, 2010 support orders". This motion recites the history of the case back to 2005, and pleads that the Shluger order of September 27 be vacated. On December 13, he filed a "supplemental motion to immediately vacate September 27, 2010 support orders" dated December 12 (#157.50). On December 20, he filed a motion dated December 19 captioned "immediate motion for order" (#157.60); these last two motions essentially repeat the allegations of his November 21 motion. These motions came before Judge Shluger twice. When they were first assigned to the January 20, 2011 short calendar, plaintiff called and marked them "take papers"; Judge Shluger rejected this procedure and denied the motions, without prejudice to their being reclaimed and heard upon a short calendar at which plaintiff and the other parties would appear so as to be available to present evidence and for oral argument. That hearing did take place on February 14, and, after weighing extensive testimony, the court denied all three motions while finding, inter alia, that plaintiff's testimony was "completely not credible" (tr., Feb. 14, 2011, p. 36).
On May 3, 2011, plaintiff filed an appeal in the Appellate Court of the orders entered on September 27, 2010 and on February 14, 2011. That appeal remains pending at this time.
On February 15, Support Enforcement filed a contempt citation (#161), which ultimately came before FSM Lifshitz on April 27. In the interim, on March 31, Support Enforcement had filed a second motion to open and modify judgment (also dated February 15, and assigned file number 167). On April 27, noting that the motion to modify was scheduled to be heard on May 10, and that further activity in the file was thus to be anticipated on that occasion, the FSM heard a brief description of the status quo regarding compliance with prior orders. He ordered plaintiff to 1) continue to comply with the existing orders, and 2) to perform at least five daily, in person job searches if he was not compliant, in response to plaintiff's claim that he was unemployed and thus unable to comply with those orders. The motion for contempt was thereupon continued to May 10 also. (Subsequently, hearings on both motions have been continued to July 26, 2011).
III. THE CLAIMS ON APPEAL
This detailed history has been set forth so as to clarify what is not involved in the appeal of the magistrate's orders now pending before me. The petition itself includes thirty-six separate paragraphs alleging various errors, but most of these relate to details of the orders entered on and prior to February 14, 2011, which are the subject of his appeal to the Appellate Court. His motion to vacate (#195) and motion for sanctions (#198) contain, respectively, 21 and 22 separate paragraphs, most of them addressing the identical issues as does the appeal now before that court.
At oral argument, plaintiff conceded that on April 27, only two directives were uttered by the magistrate which conceivably count as orders. These alone are matters from which an appeal can be taken to this court, and these alone are the proper focus of this decision.
The first of these orders consists of the magistrate's statement that plaintiff must comply with the outstanding support order of $150 per week as ordered by Judge Shluger on September 27, 2010. Plaintiff claims this is erroneous because the $150 weekly support order is erroneous. Although he is unhappy about it, a judge ordered him to pay child support of $150 per week. Since this is an order of child support, no automatic stay of the order has gone into effect as a consequence of his filing of his appeal; see, Practice Book § 61-11(b). He has unsuccessfully sought a discretionary stay under Practice Book § 61-12. While he may not like the order that is in place at this time, there is no error on the part of the FSM in telling him what his legal responsibility is, even while his appeal is pending. Since plaintiff represents himself, he may be unaware of the large and consistent body of case law holding that the duty of complying with court orders continues even when a litigant believes those orders to be inappropriate or illegal. As our Supreme Court observed at pages 147-48 of Cologne v. Westfarms Associates, 197 Conn. 141 (1985):
The interests of orderly government demand that respect and compliance be given to orders issued by courts possessed of jurisdiction of persons and subject matter. One who defies the public authority and willfully refuses his obedience, does so at his peril. [A]n order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings. The duty to obey the injunction exists however erroneous the action of the court may be, even if the error be in the assumption of the validity of a seeming but void law going to the merits of the case . . . We agree that [i]t would be a disservice to the law if we were to depart from the longstanding rule that a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy. The procedure to enforce a court's order commanding or forbidding an act should not be so inconclusive as to foster experimentation with disobedience.
(Citations omitted.)
Plaintiff may someday find himself thankful for an admonition that might save him from a contempt finding.
Secondly, he takes issue with the order that he perform job searches on the street and in person, rather than on his computer. The FSM was faced on April 27 with prima facie evidence of noncompliance with prior orders, and a claim by plaintiff of inability to comply due to his lack of a job. The resolution of that issue was deferred to a later date. In the interim, the FSM opined, plaintiff ought to be employed at the job of finding a job. He "ordered" that satisfactory performance of this task would require proof of at least five daily personal contacts with prospective employers, including obtaining verification of those meetings. Plaintiff argues that he can do his searching online and that the door by door personal search is "too onerous." The court notes that five job search visits can be done in far less than eight hours, which is a normal workday. Perhaps the FSM's thought process is that imposing this "onerous" requirement upon the plaintiff is a reasonable means by which to motivate him to engage in constructive efforts to realize his own potential. In any event, this order by the magistrate lies within his legitimate discretion, and nothing he said convinces this court that it should interfere to reverse any clear abuse of that discretion. McRae v. McRae, 129 Conn.App. 171 (2011).
Furthermore, neither of the alleged errors constitutes a final order by the FSM. Essentially, what occurred on April 27 was that the case was continued to May 10. In the course of what ought to have been a brief hearing to accomplish that continuance, the discussion turned to hypothetical questions — what might happen if noncompliance was found, and what steps might avail plaintiff of some credibility on his apparent claim that his unemployment status is involuntarily at this time. It cannot be contended that either of the magistrate's responses to this dialogue constitute a final order on his part.
The seminal case outlining the limits upon the timing of an appeal of a lower court order is State v. Curcio, 191 Conn. 27 (1983), where the Court observed:
The right of appeal is purely statutory. It is accorded only if the conditions fixed by statute and the rules of court for taking and prosecuting the appeal are met . . . The statutory right to appeal is limited to appeals by aggrieved parties from final judgments . . . [W]e must always determine the threshold question of whether the appeal is taken from a final judgment Before considering the merits of the claim . . . It has long been this court's policy to discourage "piecemeal" appeals . . . An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.191 Conn. 27, 30-31 (citations and internal quotation marks omitted).
Just recently, the Appellate Court cited Curcio when it dismissed an appeal for lack of a final judgment. In Nowacki v. Nowacki, 129 Conn.App. 157 (2011), that court held:
The jurisdiction of the appellate courts is restricted to appeals from judgments that are final . . . The policy concerns underlying the final judgment rule are to discourage piecemeal appeals and to facilitate the speedy and orderly disposition of cases at the trial court level . . . The appellate courts have a duty to dismiss, even on [their] own initiative, any appeal that [they lack] jurisdiction to hear . . . [A]n interlocutory order . . . would be immediately appealable only if it met the two part test articulated in State v. Curcio.
129 Conn.App. 157, 162 (internal quotations omitted).
There were no final orders entered on April 27. Nothing which occurred in the magistrate's court on that date either terminated a separate and distinct proceeding, or so concluded the rights of the parties that further proceedings cannot affect them. Magistate Lifshitz' orders were purely interlocutory. The statutory requirement that an appeal to this court may only be made from a final order of the family support magistrate has not been met.
The appeal is dismissed. The motions to vacate and for sanctions are denied.