Opinion
No. FA-07-4012677
July 23, 2009
MEMORANDUM OF DECISION RE MOTION #130
Most of the essential facts of this case are not in dispute. The plaintiff, Gary Perella, is the biological father of the minor children. The defendant, Josinette DiMichele, is the biological mother of the minor children. The intervenor, David DiMichele, is the husband of the defendant. The defendant and the intervenor married in 1995. Thereafter, unbeknownst to the intervenor, the plaintiff and the defendant had sexual relations which produced the subject minor children, namely, Priscilla DiMichele born November 3, 1996 and Jacob DiMichele born October 4, 1998. At all relevant times herein, the intervenor believed himself to be the father of both children and he is named as the father on both birth certificates. At the time of the birth of each child, however, the plaintiff and the defendant believed the children were fathered by the plaintiff. The plaintiff and the defendant hid the truth of the minor children's paternity from the intervenor. The plaintiff and the defendant commissioned DNA tests, which confirmed that the plaintiff is the father of the children.
Also unbeknownst to the intervenor, the plaintiff visited with the children on a weekly basis, buying them meals, gifts and other items during the visits. The defendant facilitated the visits. These visitations occurred from the time of the birth of the children until the end of December 2006. At that time, the plaintiff alleges the defendant unilaterally terminated the plaintiff's access to the children. The plaintiff subsequently filed the above action for custody and visitation of the children on March 1, 2007. On July 1, 2007, the court (Cutsumpas, J.), granted David DiMichele's motion to intervene in the present case.
On January 30, 2008, the court awarded joint legal and physical custody of the children to the defendant and the intervenor. In addition, the court granted visitation to the plaintiff per a parenting plan and ordered the plaintiff to pay $155.00 per week in child support. Also, the plaintiff acknowledged paternity in writing. The court did not address the ability of the defendant and/or the intervenor to seek retroactive child support from the plaintiff.
On March 13, 2009, the intervenor filed the present motion for child support (No. 130). The plaintiff filed an objection and memorandum of law in support thereof on April 6, 2009. The court (Bozzuto, J.), held a two-day hearing, April 6, 2009 and April 7, 2009. The plaintiff then filed a supplemental memorandum of law in support of his objection on April 17, 2009. The intervenor filed a memorandum in support of his motion for child support on April 22, 2009.
The intervenor argues that since the plaintiff has been ordered to pay $155.00 per week in child support going forward, then the plaintiff owes at least that amount in child support retroactive to the date of the birth of the children. The intervener asserts that as a legal custodian and an intervenor in the present case, he has standing to bring an action for retroactive child support. Further, he argues that he is entitled to child support from the date of the birth of the children because the plaintiff and defendant colluded to fraudulently cover up the true parentage of the children.
The plaintiff argues the intervenor has no standing to seek an order of retroactive child support and thus the court has no subject matter jurisdiction. The plaintiff argues that even if the court did have jurisdiction, the intervening party has not established any cause of action in fraud, common law, statutory or otherwise that would allow for the intervenor to recover retroactive child support.
"Matters within the jurisdiction of the Superior Court deemed to be family relations matters shall be matters affecting or involving . . . (4) alimony, support [and] custody . . . (7) civil support obligations . . . and (17) all such other matters within the jurisdiction of the Superior Court concerning children or family relations as may be determined by the judges of said court." General Statutes § 46b-1. Interpreting § 46b-1, the Supreme Court has held that it provides the Superior Court with plenary and general subject matter jurisdiction over legal disputes in family relations matters. Fusco v. Fusco, 266 Conn. 649, 653, 835 A.2d 6 (2003). In fact, no case or controversy could be found at any level in Connecticut where the court's jurisdiction pursuant to § 46b-1 was limited or struck down. Further, § 46b-2 states that "all proceedings involve a family relations matter shall first be placed on the family relations docket of the Superior Court."
The present case came to this court as an action for custody of minor children. Once the court entered the custody and parenting plan orders, the intervenor filed the present motion for retroactive child support. The court finds that this motion is properly within its subject matter jurisdiction pursuant to § 46b-1(17), as it concerns "children or family relations."
The second issue is whether the intervenor has standing to bring this suit for unpaid child support under General Statutes § 46b-215 or the common law. "The issue of standing implicates subject matter jurisdiction . . ." (Internal quotation marks omitted.) McWeeny v. Hartford, 287 Conn. 56, 63-64 (2008). "[The question of subject matter jurisdiction] . . . once raised, either by a party or by the court itself . . . must be answered before the court may decide the case." (Internal quotations marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007).
The intervenor argues that the plaintiff owes him unpaid child support because parents owe a direct duty of support to their children. As a joint legal and physical custodian, the intervenor argues he has standing to collect past due child support. The plaintiff counters that the intervenor does not have standing to bring an action for unpaid child support because he does not have a legal relationship with the children that would allow him to collect an arrearage of child support.
There is no common-law duty for parents to support their children and thus no obligation in common law for parents to provide support to their children. See Ehorn v. Podraza, 51 Ill.App.3d 816, 367 N.W.2d 300 (1977); Roque v. Frederick, 272 Ark. 392, 614 S.W.2d 667 (1981). The duty is moral. Conwell v. Conwell, 3 N.J. 266, 273, 69 A.2d 712 (1949).
Connecticut has created a statutory duty for parents, married or otherwise, to support their children. § 46b-215(a)(1). General Statutes § 46b-215(a)(1) provides in relevant part: "The Superior Court . . . may make and enforce orders for payment of support against any person who neglects or refuses to furnish necessary support to such person's spouse or a child under the age of eighteen." Further, § 46b-215(a)(3) states that an action for current or past due support (child or spousal support) may be brought by "child or any relative or the conservator, guardian or support enforcement officer, town or state, or any selectmen or the public official charged with the administration of public assistance of the town, or . . . the Commissioner of Social Services." (Emphasis added). See also § 46b-215(a)(17).
"[W]hen a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction. In determining whether or not a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope. The court is to go no faster and no further than the legislature has gone. A legislative intention not expressed in some appropriate manner has no legal existence. We have stated further that [n]o statute is to be construed as altering the common law, farther than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express." (Citations omitted; internal quotation marks omitted.) Yale University School of Medicine v. Collier, 206 Conn. 31, 36-37, 536 A.2d 588 (1988).
The court finds that the legislature has provided a cause of action for the recovery of past due child support where none existed at common law. Consequently, the court must strictly construe § 46b-215 in determining if the intervenor can maintain an action under it.
In the present case, the intervenor is the husband of the mother of the children. Also, the intervenor believed he was and acted as the biological father to the children since their births. Further, he unconditionally supported them, both psychologically and monetarily. Evidence presented during the hearing on this motion from the defendant and intervenor supported that the intervenor had sexual relations in the time frame expected to produce both pregnancies. He was granted intervenor status, meaning he had a parent-like relationship with the children, and he was later given legal custody of the children. Further, no evidence was presented that the intervenor had any idea, notion or suggestion that the defendant was engaging in sexual relations with another man or that he was not the biological father of the children.
The intervenor moves for the reimbursement of child support for both children from the time of birth under the statutory and common-law duty the plaintiff owes the children. The parties stipulate, and the court finds, that the plaintiff is the father of both children. Further, the court finds that since their births until March 2007, the intervenor cared for and supported the children under the belief that intervenor was the biological father. The court finds the intervenor expended monies in support of the children. The plaintiff does not dispute these facts, however, he argues that the intervenor does not have standing to recover previously expended monies in support of the children.
On January 30, 2008 the parties submitted an agreement to the court regarding the issues in the custody and support action initiated by the plaintiff. The agreement was accepted by the court. It provided a parenting time schedule for the children and covered additional issues involving the practicalities of child rearing. Paragraphs one, twelve and thirteen of the agreement are illuminating as to the role of the intervenor. These paragraphs provide: "1. The parties agree that the Defendant mother, Josinette DiMichele, and the Intervenor, David DiMichele, shall share joint legal and physical custody of the minor children, Priscilla DiMichele (DOB 11/3/96) and Jacob DiMichele (DOB 10/4/98) . . . 12. Mr. DiMichele agrees to provide a contact telephone number to Mr. Perella. The parties shall communicate with each other by telephone only in case of medical emergency or when necessary to discuss issues regarding visitation with the minor children. 13. Child Support in the amount of $155.00 per week shall be paid by Mr. Perrella directly to Mr. and Ms. DiMichele, in accordance with State Guidelines, payable in arrears each Friday effective February 8, 2008. Mr. and Ms. DiMichele shall be responsible for 60% of unreimbursed medical expenses and Mr. Perrella shall be responsible for 40% of same, in accordance with the State Guidelines. This shall not foreclose Mr. or Ms. DiMichele's rights to seek child support retroactive to any earlier date (than today) as allowed by law. Furthermore, this child support order is entered without prejudice to Mr. and Ms. DiMichele."
The above agreement clearly gives joint legal and physical custody of the children to the intervenor. By its definition "`joint custody' means an order awarding legal custody of the minor child to [two parties] providing for joint decision-making by the [parties] and providing that physical custody shall be shared by the [parties] in such a way as to assure the child of continuing contact with both [parties]." General Statutes § 46b-56a(a). General Statutes § 46b-56(a) provides, in relevant part, that "the court may assign parental responsibility for raising the child to the parents jointly, or may award custody to either parent or a to a third party . . ." The combination of these two statutes defines joint custody as the sharing of responsibility of a child between parents and/or a third party. However, the statutes do not specifically define "custodian" or "guardian." These definitions are important as § 46b-215(a)(3) states that an action for current or past due support (child or spousal support) may be brought by "child or any relative or the conservator, guardian or support enforcement officer, town or state, or any selectmen or the public official charged with the administration of public assistance of the town, or . . . the Commissioner of Social Services." (Emphasis added.)
"When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common-law principles governing the same general subject matter. When construing a statute, we adhere to fundamental principles of statutory construction; see General Statutes § 1-2z; Testa v. Geressy, 286 Conn. 291, 308, 943 A.2d 1075 (2008) (setting forth well established rules of construction under which `[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature')." Forest Walk LLC v. Water Pollution Control Authority, 291 Conn. 271 (2009).
The legislature defines joint custody and allows for third parties to be given custody without obtaining any special title or determination. §§ 46b-56a(a) and 46b-56(a). The definition of joint custody does not contain any inclination that it is the same as guardian. Further, the term custodian is not defined or found in the statutes. The term "guardian" is found throughout the statutes, but it is not defined. For example, in General Statutes § 45a-605 the determining factors of who should receive guardianship of a child are provided (best interests standard), but this is not helpful in determining if the intervenor's contention is true that a guardian or custodian are the same.
Despite these lack of definitions, it is clear that the legislature differentiates between the terms "guardian" and "custody" and does not use them interchangeably. General Statutes § 45a-607(e) uses the term custody and then states that a person must be appointed guardian, differentiating the two terms. General Statutes § 45a-607(b) provides specifically that children may be in the "custody of a person other than the parent or guardian." In ruling on a case involving these probate statutes, the Appellate Court specifically stated that the petitioner was granted both "sole custody and guardianship." In re Michael A., 47 Conn.App. 105, 108, 703 A.2d 1146 (1997). This use of both words in making a court order re-enforces the fact that custody and guardianship are not the same.
General Statutes § 45a-607(e) provides in relevant part: "Such order for temporary custody shall be effective until disposition of the application for removal of parents or guardians as guardian or for termination of parental rights or until a guardian is appointed for a minor child who has no guardian, unless modified or terminated by the court of probate. Any respondent, temporary custodian or attorney for the minor child may petition the court of probate issuing such order at any time for modification or revocation thereof and such court shall set a hearing upon receipt of such petition in the same manner as subsection (c) of this section."
The legislature has also differentiated between a "guardian" and a "custodian" in General Statutes § 46b, et seq., the family law statutes. General Statutes § 46b-59b, which addresses the right of a convicted murderer to have visitations with his or her children, provides that "the consent of the child's parent, guardian or legal custodian" is required. Further, General Statutes §§ 46b-120, 46b-128 and 46b-133 give certain powers, not only to the parent or guardian, but to "other custodian[s]," "other person[s] having control of the child" or "or some other suitable person."
In the present case, this court finds that the legislature, through their different use of guardian and custody, has intended that the words have different meanings. The term "guardian" is a specific designation that is given by a court to a person which places responsibility for the care of a child, exactly like a parent. The term "custody" means when a person is given certain rights as to a child, whether physical or just legal responsibility for a child. The term "custody" or "custodian" does not rise to the level of guardian. Obtaining custody of a child does not mean you are a guardian of the child. "It has often been said that the legislative intent is to be found not in what the legislature meant to say, but in the meaning of what it did say." Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1998). With the different use of each word within the statutes above, the legislature intended custodian and guardian to be separate and distinct terms with different definitions.
Other sources provide contradicting guidance. Black's Law Dictionary (7th Ed. 1999) defines "custody" as "[t]he care, control, and maintenance of a child awarded by a court to a relative, [usually] one of the parents, in a divorce or separation proceeding" and "guardian" as "[o]ne who has the legal authority and duty to care for another's person or property, [especially] because of the other's infancy, incapacity, or disability." These definitions are not particularly helpful, but provide additional weight to the conclusion that they are different words and are not interchangeable. New Jersey Statutes provide: "[A] parent or guardian is any natural parent, adoptive parent, resource family parent, stepparent, paramour of a parent or any person, who has assumed responsibility for the care, custody or control of a child or upon whom there is a legal duty for such care." N.J.S. 9:6-8.21(a). United State Code, under the chapter "Indian Child Welfare," establishes that a parent or Indian custodian is different than a guardian. 25 U.S.C. § 1903. Connecticut has no similar defining statutes or caselaw.
In the present case the court finds that the intervenor is a joint legal custodian and has a close relationship with the children. The intervenor, however, is not a guardian, nor does he have any relationship, under § 46b-215, which would provide the intervenor standing to bring this motion against the plaintiff. The intervenor is not the guardian of the children, nor does he have any other relationship listed in § 46b-215(3) which would provide him with standing. The court does not reach the merits of this motion and this ruling does not preclude the intervenor, nor the defendant from bringing any further action he or she may deem necessary in civil court.
The plaintiff's objection is sustained and the intervener's motion for child support is denied.
SO ORDERED.