Opinion
No. FA02 039 30 98
May 4, 2010
MEMORANDUM OF DECISION
On November 3, 2009, on behalf of the plaintiff, the state of Connecticut submitted an appeal from the family support magistrate's decision of October 23, 2009, granting the defendant's motion to open the issue of paternity. The state filed memoranda in support of its appeal on December 29 and 30, 2009. The magistrate made several findings in her decision of October 23, 2009, however the state's appeal solely addresses the portion of the magistrate's decision that granted the defendant's motion to open the issue of paternity.
The state of Connecticut alleges that it has standing to bring a claim on the plaintiff's behalf because the plaintiff was receiving Temporary Aid for Needy Families (TANF), financial aid from the state at the time that this action was brought.
This dispute began on March 12, 2002 when Cynthia Nixon filed a petition to establish the paternity of the defendant, Anthony Lesley, for Shaniah Nixon (Shaniah), who was born on January 29, 2002. On May 6, 2002, the state marshal made abode service on the defendant, Anthony Lesley, at his last known address, 14 Jackson Avenue, #3, Stratford, Connecticut (14 Jackson Avenue). The state marshal confirmed the defendant's address with a neighbor, and the state provided postal verification that the defendant received his mail at 14 Jackson Avenue.
The physical file indicates that the paternity petition was entered on March 12, 2002, however, the electronic file indicates that the paternity petition was entered on May 24, 2002.
Although Cynthia Nixon was listed as the "mother of the child(ren)" in the paternity petition, Cynthia Nixon later appeared as "plaintiff" and as the "guardian of the minor natural mother." Dominique Nixon appeared as the "natural mother of the child at issue," Shaniah Nixon. Therefore, Cynthia Nixon is the mother of Dominique Nixon and the maternal grandmother of Shaniah Nixon. Dominique Nixon is the minor natural mother of Shaniah Nixon.
This matter came before Magistrate Edmund Miller at the paternity proceeding of June 18, 2002. At that time, Cynthia Nixon entered an appearance as the plaintiff and the "guardian of the minor natural mother," and Dominique Nixon entered an appearance as the "natural mother of the child at issue." The defendant did not attend the paternity proceeding and, therefore, did not present evidence or testimony as to his financial situation or ability to pay child support. Based upon the state marshal's return of service and postal verification, affirming the defendant's residence at 14 Jackson Avenue, Magistrate Miller found valid abode service and found the defendant to be in default of appearance.
The minor mother, Dominique Nixon, gave sworn testimony that the defendant is Shaniah's father. Based upon this testimony, the court entered a finding that the defendant is the father of Shaniah. In addition, without knowledge of the defendant's financial situation, Magistrate Miller issued a default judgment ordering the defendant to pay child support in the amount of $102 per week in current support and $20 per week towards an outstanding arrearage of $2142 for the support of Shaniah.
The defendant filed an appeal on June 26, 2002, disputing the court's exercise of personal jurisdiction over him on the ground that he was not properly served with process because the marshal had served the papers at his former address. In his appeal, the defendant also claimed that he did not attend the paternity proceeding of June 18, 2002 because he did not receive notice as he did not reside at 14 Jackson Avenue at the time that the marshal served process at that address. On August 1, 2002, Judge Julia Dewey found that the court did have personal jurisdiction over the defendant, and denied his appeal. The defendant filed a motion to open judgment of paternity on August 21, 2002 also on the ground of personal jurisdiction, which Magistrate William Strada denied on November 26, 2002. Although the court had already denied the defendant's motion to open, the defendant filed another motion to open (#113) on March 5, 2009, again on the ground of personal jurisdiction. On October 23, 2009, Magistrate Linda T. Wihbey granted the defendant's motion to open on the ground of subject matter jurisdiction, rather than personal jurisdiction, because she found that the court had been mistaken as to the identity of the plaintiff at the time that it issued its orders of paternity and child support.
The physical file shows that Magistrate Strada denied the defendant's motion to open on November 26, 2002, however the electronic file incorrectly indicates that the court granted the motion on November 26, 2002.
The issue currently before this court is whether the magistrate erred when she opened the judgment of paternity on October 23, 2009.
"The right to appeal from a family magistrate order to the Superior Court is created by [General Statutes] § 46b-231 (n)." Sherman v. Sherman, 41 Conn.App. 803, 806, 678 A.2d 9 (1996). Section 46b-231(n)(1) provides: "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." Under the statute, "[t]he Superior Court does not sit in a de novo review of the magistrate's decision. The Superior Court may affirm the decision of the family support magistrate or remand the case for further proceedings." (Internal quotation marks omitted.) Vallas v. Vallas, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA 90 0112609 (May 20, 1998, Tierney, J.).
Section 46b-231(n)(7) provides that "[t]he Superior Court may affirm the decision of the family support magistrate or remand the case for further proceedings. The Superior Court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the decision of the family support 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."
There is a two-part test for determining whether a party is aggrieved by a particular decision. "First, the [party] claiming to be aggrieved must have a specific, personal and legal interest in the subject matter of the decision . . . Second, the [party] must establish that [such] interest has been specially and injuriously affected by the decision." Newman v. Newman, 235 Conn. 82, 103, 663 A.2d 980 (1995).
I. Motion to Open
The defendant originally filed a motion to open the judgment of paternity on August 21, 2002, which Magistrate Strada denied on November 26, 2002. More than six years later, the defendant again filed a motion to open the judgment of paternity on March 5, 2009. "The principles that govern motions to open or set aside a civil judgment are well established. Within four months of the date of the original judgment, Practice Book [§ 17-4] vests discretion in the trial court to determine whether there is a good and compelling reason for its modification or vacation." (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 94, 952 A.2d 1 (2008). "A judgment rendered may be opened after the four month limitation if it is shown that the judgment was obtained by fraud, in the absence of actual consent, or because of mutual mistake." Dougherty v. Dougherty, 109 Conn.App. 33, 38, 950 A.2d 592 (2008).
Judge Wihbey granted the defendant's motion to open after the issue had been decided more than six years prior, apparently based upon her finding that the court had been mistaken as to the identity of the plaintiff at the time that it issued its judgments of paternity and child support. She explained her decision as follows: "[T]he court's original exercise of jurisdiction was premised upon the mistaken allegations and pleadings identifying the named plaintiff, Cynthia Nixon, erroneously as the mother of the child at issue. The mistaken identity of the plaintiff mother continued resulting in the conflicting claims for past due support by both the mother and grandmother. All interested persons are now parties to the action. The individual parties, Cynthia Nixon, Dominique Nixon and [Anthony Lesley] reached an agreement that would conclude these motions. Therefore, to protect the vested right of the minor child to receive financial support form all legally liable relatives, based upon the ability of each, the pending matters are deferred for investigation and report of a guardian ad litem and attorney for the minor child. The appointed guardian and attorney shall report on any claimed arrearage due and owing to the mother and or grandmother as possible custodians of the minor children."
In dispute of the magistrate's finding and discussion thereof, the state argues that although the paternity petition was brought by the minor mother's guardian, Cynthia Nixon, the court record reflects that the court was aware that Dominique Nixon is the minor mother of Shaniah. Dominique Nixon entered an appearance as the "natural mother of the child at issue," presented herself to court at the initial paternity proceeding and gave testimony as to the defendant's paternity of Shaniah.
This court agrees with the state that, at the time that the court issued its order of paternity, the court understood that Cynthia Nixon brought a paternity action against the defendant on behalf of her minor daughter, Dominique Nixon. The court further finds that, if anything, failing to list Dominique Nixon as a party in the initial paternity petition was a circumstantial defect. General Statutes § 52-123 addresses circumstantial defects of named parties in pleadings, and provides: "No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court." "Our Supreme Court has explained that [General Statutes] § 52-123 replaces the common law rule that deprived courts of subject matter jurisdiction whenever there was a misnomer . . . in an original writ, summons, or complaint . . . When a misnomer does not result in prejudice to a party, the defect in the writ is circumstantial error . . . When the correct party is designated in a way that may be inaccurate but which is still sufficient for identification purposes, the misdesignation is a misnomer. Such a misnomer does not prevent the exercise of subject matter jurisdiction if the defendant was actually served and knew [it] was the intended defendant. This is in contradistinction to the case in which the plaintiff has misconstrued the identity of the defendant and has therefore named and served the wrong party. The issue, then, is whether a misnomer is a designation of the right party in a way which may be inaccurate but which is still sufficient for identification purposes or whether the wrong person has been designated as a party." (Citations omitted; emphasis added; internal quotation marks omitted.) Rock Rimmon Grange No. 142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 414, 885 A.2d 768 (2005).
"Indeed, § 52-123 of the General Statutes . . . provid[es] that no proceeding shall be abated for circumstantial errors so long as there is sufficient notice to the parties." Hartford National Bank Trust Co. v. Tucker, 178 Conn. 472, 478, 423 A.2d 141 (1979). Here, the court finds that this circumstantial defect is not sufficient to warrant vacating or modifying the court's previous decision regarding the defendant's motion to open. The defendant was correctly identified as the defendant to the action. While Cynthia Nixon, and not Dominique Nixon, was listed as the mother of the child at issue on the paternity petition, the court was made aware of the correct identities of the parties at the time of the paternity preceding. Therefore, the court finds that listing Cynthia Nixon, rather than Dominique Nixon, as the mother of Shaniah on the paternity petition was a circumstantial defect that was corrected at the paternity proceeding of June 18, 2002.
II. Res judicata
Connecticut courts have found that when claims related to child support matters have been actually litigated and decided in prior proceedings, motions to open and to set aside are barred by res judicata. See e.g., LaMacchia v. Chilinsky, 85 Conn.App. 1, 6-7, 856 A.2d 459 (res judicata bars the court from considering the same basis for relief regarding child support arrearage as asserted in a prior proceeding), cert. denied, 271 Conn. 942, 861 A.2d 514 (2004); see also Fish v. Igoe, 83 Conn.App. 398, 404, 849 A.2d 910 (res judicata precluded relitigation of a child support issue "pertaining to a past proceeding"), cert. denied, 271 Conn. 921, 859 A.2d 577 (2004).
"The doctrine[] of res judicata . . . protect[s] the finality of judicial determinations, conserve[s] the time of the court, and prevent[s] wasteful relitigation . . . [T]he doctrine of res judicata . . . [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action [between the same parties or those in privity with them] on the same claim." (Citation omitted; emphasis added; internal quotation marks omitted.) Twenty-Four Merrill Street Condominium Assn., Inc. v. Murray, 96 Conn.App. 616, 619, 902 A.2d 24 (2006).
In State v. McCarroll, 113 Conn.App. 274, 966 A.2d 323 (2009), our Appellate Court addressed the same issue in a family matter that had been decided by Magistrate Wihbey. In that case, the defendant filed a motion to open a paternity judgment that had already been decided by the family support magistrate. The second motion to open came before Magistrate Wihbey. She denied the motion on res judicata grounds, and the Appellate Court affirmed her denial. Id., 278. Although State v. McCarroll has similar facts to the present case, Magistrate Wihbey denied the defendant's motion to open and to set aside the paternity judgments in that case, but granted the defendant's motion to open in the present case. The magistrate's divergent finding in the present case was apparently grounded on her belief that the court had made an error regarding the identity of the plaintiff when it had initially made its judgments of paternity and child support. This court finds that the magistrate's grant of the defendant's motion to open is barred by res judicata because the defendant's motion to open had already been denied on November 26, 2002. The court bases its decision on its finding that there was no mistake as to the identity of the parties to warrant modifying or vacating the court's denial of the defendant's original motion to open.
The magistrate erred when she granted the defendant's motion to open on October 23, 2009, because her decision was barred by res judicata due to the court's November 26, 2002 denial of the defendant's motion to open. The court sustains the state's appeal.