Opinion
No. FA96-0621680
April 17, 2003
MEMORANDUM OF DECISION
The plaintiff mother, Cindy Rosado, gave birth to the child Danaisha Ly Caceres at Hartford Hospital on December 22, 1998. Two days later, she signed an affirmation naming the defendant as Danaisha's father. At the same time the defendant Julio Caceres, Jr., executed the same form (VS-56) thereby acknowledging under oath that he is the father. The form includes an advisement of rights on the reverse side, and a waiver of right to counsel, genetic tests and trial just above the signature line. The document was filed in this court on January 15, 1999 thereby according it the same force and effect as a paternity judgment. General Statutes § 46b-172.
Shortly thereafter the State of Connecticut commenced a support petition against the defendant. Although the file indicates no return of service, the defendant signed an undated waiver of service as well as a sworn financial affidavit dated July 12, 1999. On that date, the court, Langley, F.S.M., entered a support order of $48.00 per week plus $1.15 per week on the arrearages. There has been little enforcement activity in the file since the order was established.
The plaintiff filed an appearance on the same date. Although the defendant filed a waiver of service and participated in the hearing, the file does not disclose an appearance form of that date. He did file a pro se appearance September 13, 2001. His present attorney filed his appearance on April 2, 2002.
On March 11, 2002 the defendant by his counsel filed a motion to open judgment, a motion for genetic testing and accompanying affidavits. He alleges that one Luis Ramos is Danaisha's true biological father and that the plaintiff fraudulently misrepresented to him that he was the father. The court appointed Attorney Virginia Street as guardian ad litem and Attorney Rhonda Morra as attorney for the child.
The Attorney General and the attorney for the child oppose the motion. The plaintiff states that she believed the defendant was the child's father during her pregnancy and at the time of the birth. Shortly thereafter she began to believe Luis Ramos to be the father. She took no direct action. However, she claims that she shared her doubts with Mr. Caceres and offered to take a genetic test. She now believes that Ramos is Danaisha's biological father and does not oppose this motion.
The guardian ad litem believes it to be in the child's best interest that the correct biological father be determined. She supports the defendant's motion for a genetic test, stating: "I would ask the Court to find some way to let these people have a DNA test so that . . . this child will always have a father." Transcript, 6/6/2002, p. 66. However, she does not favor opening the acknowledgment without biological evidence and expressed concern that Danaisha could be left without a legal father and bereft of economic benefits.
I MOTION FOR GENETIC TESTS
The defendant has moved for a court order for genetic tests. The plaintiff mother does not oppose the motion. The guardian ad litem endorses the request. General Statutes § 46b-168 provides for court-ordered DNA testing when "the question of paternity is at issue." The State opposes the motion on the grounds that paternity is not at issue, having been determined by the acknowledgment.
General Statutes § 46b-168 (formerly § 52-184) states:
(a) In any proceeding in which the question of paternity is at issue the court or a family support magistrate, on motion of any party, may order genetic tests which shall mean deoxyribonucleic acid tests, to be performed by a hospital, accredited laboratory, qualified physician or other qualified person designated by the court, to determine whether or not the putative father or husband is the father of the child. The results of such tests, whether ordered under this section or required by the IV-D agency under section 46b-168a, shall be admissible in evidence to either establish definite exclusion of the putative father or husband or as evidence that he is the father of the child without the need for foundation testimony or other proof of authenticity or accuracy, unless objection is made in writing not later than twenty days prior to the hearing at which such results may be introduced in evidence.
(b) In any proceeding in which the question of paternity is at issue, the results of such genetic tests, whether ordered under this section or required by the IV-D agency under section 46b-168a, shall constitute a rebuttable presumption that the putative father is the father of the child if the results of such tests indicate a ninety-nine per cent or greater probability that he is the father of the child, provided the petitioner has presented evidence that sexual intercourse occurred between the mother and the putative father during the period of time in which the child was conceived.
(c) The costs of making tests provided by this section shall be chargeable against the party making the motion, provided if the court finds that such party is indigent and unable to pay such costs, such costs shall be paid by the state. If the costs of making such tests are paid by the state and the respondent making the motion is subsequently adjudicated to be the father of the child, such respondent shall be liable to the state for the amount of such costs.
It is true that our courts have expressed concern with the accuracy of any paternity determination taken without genetic tests. Palomba v. Gray, 208 Conn. 21, 36-37, 543 A.2d 1331 (Shea, J., concurring, 1988) ("the resolution of such an important issue should no longer be had without such scientific testimony"); Cintron v. Valentin, superior court, judicial district of New Britain, doc. no. FA99-0498286 (Dranginis, J., May 17, 2000); Andrews-White v. Mitchell, 15 Conn.L.Rptr. 629, 630, 1995 Ct. Sup. 12880 (McWeeny, J., November 13, 1995); Johnston v. Domina, Superior Court, Judicial District of Hartford, doc. No. FA88-0340848, 23 Conn.L.Rptr. 102, 1998 Ct. Sup. 11005 (Dranginis, J., Sep. 24, 1998); Plemmons v. Newton, 16 S.M.D. 8 Conn. Ops. 106 (Sosnoff Baird, F.S.M., 2002); Dawkins v. Nash, 15 S.M.D. 7 Conn. Ops. 1302, 2001 Ct. Sup. 14254 (Colella, F.S.M., 2001); Joseph v. Lilburn, 14 S.M.D. (Lifshitz, F.S.M., 2000). "The reduction of the former review period of three years to the present sixty days seems dangerously compressed, especially given the myriad emotions that attend most people on the birth of a child and the fact that often these acknowledgments are signed by young, impressionable and immature adolescents." Ramos v. Cox, 16 S.M.D. 2002 Ct. Sup. 15144-m (Lifshitz, F.S.M., Nov. 29, 2002).
In Dawkins v. Nash, 15 S.M.D. 7 Conn. Ops. 1302, 2001 Ct. Sup. 14254 (Colella, F.S.M., 2001) the court denied a motion to open a 1993 acknowledgment of paternity. However, the court added the following comment: "There are some who advocate the notion that our legislature should mandate genetic testing in all births involving unwed mothers, given the simplicity, unobtrusiveness and low cost of such testing. This court is supportive of such legislation, not as an insult in any fashion to unwed mothers, but in an effort to avoid the potential emotional trauma inflicted upon a child as reflected in this case. The certainty of paternity would be in a child's best interests. Mandatory testing would eliminate the possibility of a named father waiving a genetic test for fear of offending and/or alienating the mother. This would also minimize the possibility of a respondent pulling away from a child in later years due to lingering doubts, which doubts build to resentment. Many a respondent appearing on a contempt motion has expressed to this court his doubts of paternity as an excuse for non-payment of support and/or lack of contact with the child."
In Plemmons v. Newton, 16 S.M.D. 8 Conn. Ops. 106 (Sosnoff Baird, F.S.M. 2002), the court did order a genetic test notwithstanding a prior acknowledgment of paternity. However, the court found the paternity acknowledgment void and vacated it, holding a portion of the acknowledgment statute unconstitutional as violative of the doctrine of separation of powers. The court also found that the execution of the acknowledgment in question in that case did not comply with the requirements of General Statutes § 46b-172 (a)(1) because it was not read to the defendant. Moreover, the court ruled that in any event it was proven that the defendant did not have the mental capacity to validly waive his rights. In the present case, the defendant did not challenge the constitutionality of the acknowledgment statute nor did he establish an absence of mental capacity.
The holding was specifically limited to the portion of the statute that states "[the acknowledgment] shall have the same force and effect as a judgment of the Superior court. It shall be considered a legal finding of paternity without requiring or permitting judicial ratification . . ."
Therefore, this motion is controlled by the Appellate Court's decision in Cardona v. Negron, 53 Conn. App. 152, 728 A.2d 1150 (1999), which originated in the Family Support Magistrate Division in this judicial district. As in the present case, the paternity "judgment" was based on a signed acknowledgment. The father moved to open the judgment some three years after support was ordered and nearly five years after the acknowledgment was filed. A guardian ad litem was appointed for the minor child.
During the course of the hearing it was revealed that the child suffered from cyclic neutropenia, a rare white blood cell disorder. The father's motion was supported by the guardian ad litem on behalf of the child, who asserted not only that the child should have her parentage accurately determined, but that her malady might be genetic and for that reason a DNA test to determine her biological father was in her best interests. The trial magistrate, Matasavage, F.S.M. granted the pending motion for a DNA test while reserving decision on the motion to open. The Attorney General appealed, arguing that the court lacked authority to order the DNA tests without first opening the judgment, and that the defendant had not proven fraud, without which there was no basis to open the judgment.
On appeal, the Superior Court, Bishop, J., affirmed the decision of the Family Support Magistrate. However, the Appellate Court reversed, focusing on the absence of authority of the trial court to order genetic tests without first finding fraud. While the Appellate Court acknowledged the claimed medical condition of the child, it disposed of it in a footnote indicating that there was insufficient evidence that the genetic testing would benefit the child.
Thus where a paternity judgment exists, including one established pursuant to the acknowledgment statute, the court lacks the authority to order genetic tests unless the judgment is first opened. Cardona v. Negron, supra, 53 Conn. App. 157; Ramos v. Cox, supra, 16 S.M.D. Rivera v. Gonzalez, 16 S.M.D. 2002 Ct. Sup. 11543 (Lifshitz, F.S.M., Aug. 11, 2002); Anderson v. Bailey, 15 S.M.D. (Burt, F.S.M., Feb. 14, 2001). Accordingly, the motion for a genetic test is denied.
The court notes the guardian ad litem's request that it "find a way" to order genetic tests notwithstanding the rule of Cardona v. Negron. This court is not empowered to overrule the Appellate Court. It is also noted that Cardona v. Negron applies to court ordered genetic tests. The parties were not precluded from obtaining their own genetic tests privately and at their own expense and submitting the results as evidence in this case. Additionally, the plaintiff could have asked Mr. Ramos to submit to DNA tests. See Martin v. Harrell, 16 S.M.D. 8 Conn. Ops. 681. 2002 Ct. Sup. 6995 (2002) (DNA test establishing probability of over 99% that another man was child's father was sufficient to establish material mistake of fact). Unfortunately, the decision in this case, after a hearing on the merits, would probably preclude a future motion to open even if such evidence were now obtained.
II MOTION TO OPEN JUDGMENT A JURISDICTION
The paternity acknowledgment statute, General Statutes § 46b-172 provides that when an acknowledgment with affirmation of the mother are executed and filed it "shall be considered a legal finding of paternity without requiring or permitting judicial ratification, and shall be binding on the person executing the same . . ." General Statutes § 46b-172 (a)(1). The judgment obtained through the acknowledgment can only be opened within the rescission period, which is sixty days. General Statutes § 46b-172 (a)(2)(A). "An acknowledgment . . . may be challenged in court or before a family support magistrate after the rescission period only on the basis of fraud, duress or material mistake of fact which may include evidence that he is not the father, with the burden of proof upon the challenger." Veilleux v. Burski, 14 S.M.D. (2000); White v. Cordier, 14 S.M.D. 27 Conn.L.Rptr. 365, 2000 Ct. Sup. 6486 (2000); see also Yeong Gil Kim v. Magnotta, 49 Conn. App. 203, 209, 714 A.2d 38 (1998); Solomon y. Keiser, 22 Conn. App. 424, 577 A.2d 1103 (1990); McDonnell v. McDonnell, Superior Court, judicial district of Hartford, doc. No. FA94-0535761 (Bishop, J., Feb. 2, 1999).
For acknowledgments filed after July 1, 1997 the period to seek reopening has telescoped down to sixty days or less, General Statutes § 46b-172 (c). Acknowledgments filed prior to July 1, 1997 were subject to motions to reopen for a period of three years after filing.
The moving party bears the burden of proof. Connell v. Colwell, 214 Conn. 242, 571 A.2d 116 (1990); Alaimo v. Royer, 188 Conn. 36, 39, 448 A.2d 207 (1982); Lopinto v. Haines, 185 Conn. 527, 534, 441 A.2d 151 (1981); DeLuca v. C.W. Blakeslee Sons, Inc., 174 Conn. 535, 546, 391 A.2d 170 (1978); T.O. Richardson Co. v. Brockbank, Superior Court, judicial district of Hartford/New Britain at Hartford, doc. no. 703826 (Sheldon, J., March 23, 1995); Gatling v. Gatling, Superior Court, judicial district of Waterbury, doc. no. 52272, 1990 Ct. Sup. 801 (Harrigan, J., Aug. 9, 1990); Pullen v. Cox, 9 S.M.D. 134, 138 (1995).
A motion to open "is not to be granted readily, nor without strong reasons, it may and ought to be when there appears cause for which the court, acting reasonably would feel . . . bound in duty to do so." CT Page 5793 McCulloch v. Pittsburgh Plate Glass Co., 107 Conn. 164, 167, 140 A. 114 (1927); Wildman v. Wildman, 72 Conn. 262, 270, 44 A. 224 (1899). "The acknowledgment statute would be rendered meaningless if despite full knowledge of the possibility of genetic tests and a contested trial a respondent could [easily challenge paternity]." Joseph v. Lilburn, 14 S.M.D. (2000).
Earlier cases held that courts lacked subject matter jurisdiction to open a judgment unless the motion was filed within the time prescribed by statute. Van Mecklenberg v. Pan American World Airways, Inc., 196 Conn. 517, 5118, 494 A.2d 549 (1985); Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 465, 440 A.2d 159 (1981); Misinonile v. Misinonile, 190 Conn. 132, 134, 459 A.2d 518 (1983); Handy v. Minwax Co., Inc., 46 Conn. App. 54, 56, 698 A.2d 339 (1997); Ziruk v. Bedard, 45 Conn. App. 137, 139, 695 A.2d 4 (1997); Connecticut National Bank v. Oxenhandler, 30 Conn. App. 541, 546-47, 621 A.2d 300, cert. denied, 225 Conn. 924, 625 A.2d 822 (1993). More the statutory bar is described as "a limitation on the trial court's general authority to grant relief from a judgment . . ." Yeong Gil Kim v. Magnotta, 249 Conn. 94, 103, 733 A.2d 809 (1999).
This motion to open was filed more than three years after the date of the acknowledgment. This is well beyond the time bar in the statute. "Therefore the court does not have the authority to grant the motion absent proof by the moving party of an extraordinary factor such as fraud, mistake, or duress." Drakeford v. Ward, 15 S.M.D. (Lifshitz, F.S.M., Nov. 7, 2001).
The defendant's motion refers to the "judgment of July 19, 1999." This apparently refers to the support order which was rendered on July 12, 1999. The acknowledgment was actually signed by both parties on December 24, 1998 and filed with the court on January 15, 1999.
B FINALITY OF JUDGMENT
Paternity in this case was established through the paternity acknowledgment statute, General Statutes § 46b-172. The statute provides that when an acknowledgment is executed and sworn to by the father when accompanied by the written affirmation of the mother and an attested waiver of rights, it "shall have the same force and effect as a judgment of the Superior Court." The statutory language makes the document itself the equivalent of a court judgment "without requiring or permitting judicial ratification." "The legislative scheme precludes the opportunity for a court canvass." Martin v. Harrell, 16 S.M.D. (2002); Martinez v. Collins, 15 S.M.D. (2001).
Thus the statute attempts to imbue acknowledged paternity with the same characteristics as adjudicated paternity judgments. It is well established that "[o]ur courts favor finality in judicial decisions." Meinket v. Levinson, 193 Conn. 110, 113, 414 A.2d 454 (1984); Vogel v. Vogel, 178 Conn. 358, 362, 422 A.2d 271 (1979); Perkins v. Perkins, 3 Conn. App. 322, 328, 487 A.2d 1117 (1985); Dawkins v. Nash, supra; Joseph v. Lilburn, 14 S.M.D. (2000); Tirado v. Rivera, 13 S.M.D. 230, 238, 1999 Ct. Sup. 15638 (1999); Yade v. Nagy, 4 S.M.D. 237 (1990); State of Florida v. Backlund, 2 S.M.D. 61, 71 (1988). "Public policy requires that a term be put to litigation and the judgments, as solemn records upon which valuable rights rest, should not lightly be disturbed or overthrown . . ." Lampson Lumber Co. v. Hoer, 139 Conn. 294, 297, 93 A.2d 143 (1952); Drakeford v. Ward, 15 S.M.D. 2001 Ct. Sup. 15865 (2001); White v. Cordier, supra, 14 S.M.D. Pullen v. Cox, 9 S.M.D. 134, 137 (1995).
"The finality of judgment in family matters is crucial to our community's stability." Berry v. Berry, Superior Court, judicial district of Hartford/New Britain at Hartford, doc. no. FA91-0391459, 1993 Ct. Sup. 22 (Steinberg, J., January 5, 1993); Valentin v. Olivero, 15 S.M.D. (Alvord, F.S.M., June 11, 2001); Joseph v. Lilburn, 14 S.M.D. (2000). "The need for finality of judgment . . . must apply as much or more to cases where a young child for whom the passage of time which may seem short for an adult or teenager, can be almost an eternity to an infant, and work changes with substantial and irreversible effect." In re Kelly S., Superior Court, juvenile matters, judicial district of Windham at Willimantic, doc. no. N90-159, 1991 Ct. Sup. 10450, 10464 (Teller, J. Dec. 5, 1991); In re Nathan and Michael G., Superior Court, juvenile matters, judicial district of Windham at Willimantic, 1993 Ct. Sup. 9953, 9967 (Brenneman, J., Nov. 17, 1993); In re Mark and Amy C., Superior Court, juvenile matters, judicial district of New London at Montville, 1991 Ct. Sup. 7960, 10464 (R. Walsh, J., Sept. 24, 1991); In re Jesus Lugo, Superior Court, juvenile matters, judicial district of Hartford/New Britain at Plainville, 1990 Ct. Sup. 878, 887 (Brenneman, J. Aug. 24, 1990); Valentin v. Olivero, supra, 15 S.M.D.
The importance of the principle of finality of judgment is amplified when the parties had full opportunity originally to contest the issues. Meinket v. Levinson, 193 Conn. 110, 114 (1984); Monroe v. Monroe, 177 Conn. 173, 178, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979); Mauriello v. Mauriello, 1992 Ct. Sup. 4774, Superior Court, judicial district of Waterbury, doc. no. 84337 (Harrigan, J., May 29, 1992). The principle of finality of judgment must be balanced against other interests, such as assuring that no party will be deprived of constitutional rights, or achieving a factually accurate as well as a fair result. Asherman v. State, 202 Conn. 429, 521 A.2d 578 (1987).
In this case, the acknowledgment form includes a waiver of rights, which states the following inter alia: "I waive my rights to a trial, a lawyer to represent me, and a genetic test to determine paternity. I have read, and have had read and explained to me, the rights and responsibilities on the back of this form and I understand the contents. I have had the opportunity to ask questions before I signed this form." The reverse side of the form contains further explanations of the rights of the parties. The right to counsel, trial and genetic tests are further elucidated. It is clearly explained that the document is considered a legal finding of paternity and that the recission period extends only sixty days.
Even if the defendant successfully proves that grounds exist to open the judgment, he must overcome countervailing factors such as laches, estoppel and unclean hands. "[O]ne of the essential conditions for granting of such a motion is that the evidence which the party seeks to offer could not have been known and with reasonable diligence produced at trial." Stocking v. Ives, 156 Conn. 70, 73, 238 A.2d 421 (1968); Fedele v. Romero, 37 Conn. Sup. 885, 888, 441 A.2d 867 (1982).
C FRAUD
A judgment obtained by fraud may be attacked even after the time limitation for opening the judgment. Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980); Gatling v. Gatling, Superior Court, judicial district of Waterbury, doc. no. 52272, 1990 Ct. Sup. 801 (Harrigan, J., Aug. 9, 1990); White v. Cordier, supra, 14 S.M.D.; Cardona v. Negron, 13 S.M.D. 133, 139 (Matasavage, F.S.M. 1999); McNealy v. Dancy, 13 S.M.D. 107, 114, 1999 Ct. Sup. 12793 (1999).
The moving party bears a heavy burden of proof. "Fraud must be proven by `clear and satisfactory evidence,' a standard more exacting than a fair preponderance of the evidence." Gatling, supra; Dawkins v. Nash, supra; see also Alaimo v. Royer, 188 Conn. 36, 39, 448 A.2d 207 (1982). The standard is also phrased "clear, precise and unequivocal evidence." Weisman v. Kaspar, 233 Conn. 531, 540, 661 A.2d 530 (1995); Connell v. Colwell, 214 Conn. 242, 571 A.2d 116 (1990); Alaimo, supra, 39; Lopinto v. Haines, 185 Conn. 527, 534, 441 A.2d 151 (1981); DeLuca v. C.W. Blakeslee Sons, Inc., 174 Conn. 535, 546, 391 A.2d 170 (1978); T.O. Richardson Co. v. Brockbank, Superior Court, judicial district of Hartford/New Britain at Hartford, doc. no. 703826 (Sheldon, J., March 23, 1995); Pullen v. Cox, 9 S.M.D. 134, 138 (1995).
In order to establish fraud, the moving party must prove that: "(1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act on it; and (4) the other party did so act upon that false representation to his injury." Weisman v. Kaspar, 233 Conn. 531, 539, 661 A.2d 530 (1995); Billington v. Billington, 220 Conn. 212, 217, 595 A.2d 1377 (1991); Miller v. Appleby, 183 Conn. 51, 54-55, 438 A.2d 811 (1981); Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 515, 271 A.2d 69 (1970); Barnes v. Starr, 64 Conn. 136, 1250, 28 A. 980 (1894); Gatling, supra; Hemingway v. Jones, 15 S.M.D. (Burt, F.S.M., Feb. 16, 2001); Anderson v. Bailey, 15 S.M.D. (Burt, F.S.M., Feb. 14, 2001); Tirado v. Rivera, 13 S.M.D. 230, 239, 1999 Ct. Sup. 15638 (Alvord, F.S.M. 1999); Pullen v. Cox, supra, 9 S.M.D. 138.
Additionally, the judgment may be opened only if the moving party is not barred by any of the following restrictions: "(1) there must have been no laches or unreasonable delay by the injured party after the fraud was discovered. (2) There must have been diligence in the original action, that is, diligence in trying to discover and expose the fraud. (3) There must be clear proof of the perjury or fraud. (4) There must be a substantial likelihood that the result of the new trial will be different. James, Civil Procedure (1965) § 11.7, pp. 540-42; 36 Ill. L. Rev. 894, 896-97 (1942). Furthermore, the granting of such relief must not unfairly jeopardize interests of reliance that have taken shape on the basis of the judgment. James Hazard, Civil Procedure (2d Ed.) § 13.14, p. 687." Varley v. Varley, 180 Conn. 1, 4, 428 A.2d 317 (1980); Tirado v. Rivera, supra, 13 S.M.D. 240; McNealy v. Dancy, supra, 13 S.M.D. 115; Pullen v. Cox, supra, 9 S.M.D. 138.
In the present case there is no doubt that the defendant freely and voluntarily signed the acknowledgment. Although the defendant claims that the plaintiff "lied to get me to sign the paper," there is no evidence that the plaintiff induced him to acknowledge the child or made false statements. She initially believed the defendant to be the father. When she began to have misgivings, she shared them with the defendant.
There is no claim that the plaintiff specifically pledged that her sexual relationship with the defendant was exclusive. In fact, the plaintiff expressly denies that she ever represented to the defendant that her sexual relationship with him was exclusive. Transcript, 6/6/2002, p. 52-53. She did not affirmatively disclose to him that she had another sexual liaison, but she had no obligation to do so. "In view of the fact that the parties were never married to each other, there is no legal obligation of either party to maintain sexual exclusivity or to divulge their sexual history to the other." Martinez v. Collins, 15 S.M.D. 1 (2001). . ."In the last quarter of the twentieth century after the `sexual revolution' of the `sixties, even a reasonable expectation in the context is implausible." Cruz v. Hudson, 16 S.M.D. 2002 Ct. Sup. 4027 (2002); Joseph v. Lilburn, 14 S.M.D. (2000).
Once the plaintiff began to question paternity, she shared her doubts with the defendant. She did not induce him to forbear on challenging the acknowledgment. In fact, she urged him to get a DNA test. Transcript, 6/6/2002, p. 38-39. Thereafter, it was up to the defendant to take appropriate action to open the paternity judgment. His failure to follow through does not create a fraud.
The defendant has failed to provide clear evidence that there has been a fraud or that the result of the new trial will be different. While the defendant and the plaintiff both suggest that Mr. Ramos is Danaisha's father, even at this late date he has not submitted DNA results to prove that he is not the biological father or that the alternative nominee is. The defendant has failed to sustain his burden of proof necessary to open the judgment based on fraud.
D MISTAKE
Acknowledgments filed with the court after July 1, 1997 may be rescinded in writing for a period of sixty days. Thereafter the acknowledgment "may be challenged in court or before a family support magistrate . . . only on the basis of fraud, duress or material mistake of fact which may include evidence that he is not the father . . ." General Statutes § 46b-172 (a)(2); Veilleux v. Burski, 14 S.M.D. (2000); see also Yeong Gil Kim v. Magnotta, 49 Conn. App. 203, 209, 714 A.2d 38 (1998); Solomon v. Keiser, 22 Conn. App. 424, 577 A.2d 1103 (1990); McDonnell v. McDonnell, Superior Court, judicial district of Hartford, doc. No. FA94-0535761 (Bishop, J., February 2, 1999).
A motion to open "is not to be granted readily, nor without strong reasons, it may and ought to be when there appears cause for which the court, acting reasonably would feel . . . bound in duty to do so." McCulloch v. Pittsburgh Plate Glass Co., 107 Conn. 164, 167, 140 A. 114 (1927); Wildman v. Wildman, 72 Conn. 262, 270, 44 A. 224 (1899).
Some courts have recognized a slightly differing standard in opening a judgment entered by consent compared to those resulting from adjudication. Gillis v. Gillis, 214 Conn. 336, 572 A.2d 323 (1990). In the case of stipulated judgments, contract principles pertinent to reformation are sometimes invoked. Reformation may be applicable due to mutual mistake or a unilateral mistake coupled with fraud or inequitable conduct. Rodie v. National Surety Corporation, 143 Conn. 66, 69, 118 A.2d 908 (1955); Shawmut Bank Connecticut v. Connecticut Limousine Service, Inc., 40 Conn. App. 268, 273, 670 A.2d 880 (1996); City Iron Works, Inc. v. Frank Badsteubner Post No. 2090, 22 Conn. Sup. 230, 167 A.2d 462 (1960).
Mutual mistake has been held to exist where both parties are mutually mistaken about the same material fact. Buol Machine Co. v. Buckens, 146 Conn. 639, 641, 153 A.2d 826 (1959); Dainty Rubbish Service, Inc. v. Beacon Hill Association, Inc., 32 Conn. App. 530, 537, 630 A.2d 115 (1993); see also Harlach v. Metropolitan Property Liability Ins. Co., 221 Conn. 185, 190, 602 A.2d 1007 (1992). There is no requirement of "mutual mistake." The material mistake can be mutual or unilateral. It is significant that the clause is preceded by the word "may."
"The acknowledgment statute includes `evidence that he is not the father' as a `material mistake of fact.' It is interesting that while every other element in support of a motion to open a paternity judgment must be proven by the movant, the statute provides that merely evidence, not proof of non-paternity may be considered by the court as a material mistake of fact." B v. L, 17 S.M.D. (2003).
A party moving to open a judgment must "demonstrate that there is a good and compelling reason for the court to grant the motion . . ." The applicable statutes and practice rules ". . . [do] not contain a precise list of what the moving party must show in order to prevail . . ." First Union National v. TDB International, 22 Conn.L.Rptr. 252 (1998). Thus the statute does not create a bright line standard but merely allows the court to consider evidence of non-paternity among other factors. Joseph v. Lilburn, supra; White v. Cordier, supra, 14 S.M.D. McNealy v. Dancy, supra, 13 S.M.D. 116.
The defendant has not proven that he is not Danaisha's father. The mere belief of the defendant and the plaintiff that Luis Ramos is the child's father does not make it so. The defendant has not provided proof and there is precious little evidence. There is only the plaintiff's testimony that she may have misunderstood the timing of her pregnancy, Transcript, 6/6/2002, p. 61-64, and the opinion of the mother that Danaisha looks more like Mr. Ramos than the defendant. Transcript, 6/6/2002, p. 64. At best, the evidence establishes that there may have been opportunity for Mr. Ramos to have fathered the child. The defendant has the burden of proof on that issue, and he has failed to meet that burden.
This court has previously recognized "the reality . . . that lay persons often do not fully comprehend the legal weight of their doings, regardless of how many waivers they sign or how many times they are advised of their rights, absent a formal legal setting." B v. L, supra, 17 S.M.D. Unlike that case, here there was at least one prior opportunity for the defendant to raise his doubts regarding paternity. In July 1999 the parties were before the court on the support petition. The plaintiff claims that by that time she had discussed with the defendant the possibility that he was not the biological father. Transcript, 6/6/2002, p. 39, 77. Yet the defendant took no action until two and a half years later.
The inattention of the parties is not a mistake that overcomes traditional concerns for finality of judgment. The defendant's case for mistake is weak at best. Mere speculation does not suffice as proof of a mistake or evidence of nonpaternity. To open this judgment on grounds of mistake would derogate the acknowledgment statute.
E DURESS
The principles that govern the opening of a stipulated judgment on the ground of duress are not in dispute. The classical or common law definition of duress is "any wrongful act of one person that compels a manifestation of apparent assent by another to a transaction without his volition." 25 Am.Jur.2d ., Duress and Undue Influence 1 (1966). Inherent in the term is an implication of feebleness on one side and overpowering strength on the other. United States v. Bethlehem Steel Corp., 315 U.S. 289, 300, 62 S.Ct. 581, 86 L.Ed. 853 (1941). The duress must be imposed on the defendant at or about the time the defendant enters into the contract. 25 Am.Jur.2d, Duress and Undue Influence 14; see Shlensky v. Shlensky, 369 Ill. 179, 183, 15 N.E.2d 694 (1938). To show duress, one must prove [1] a wrongful act or threat [2] that left the victim no reasonable alternative, and [3] to which the victim in fact acceded, and that [4] the resulting transaction was unfair to the victim. 2 D. Dobbs, Law of Remedies (2d Ed. 1993) c. 10, § 10.2(1), p. 635.
"To conclude that a stipulated judgment resulted from duress, the finder of fact must determine that the misconduct of one party induced the party seeking to avoid the stipulated judgment to manifest assent thereto, not as an exercise of that party's free will but because that party had no reasonable alternative in light of the circumstances as that party perceived them to be. See McCarthy v. Taniska, 84 Conn. 377, 381-82, 80 A. 84 (1911); 1 Restatement (Second), Contracts § 175, especially comment b (1981)." Jenks v. Jenks, 232 Conn. 750, 753, 657 A.2d 1107 (1995); Sicaras v. City of Hartford, 44 Conn. App. 771, 789, 692 A.2d 1290 (1997); Morales v. Rios, 15 S.M.D. 2001 Ct. Sup. 1380 (2001).
There is no evidence that the plaintiff threatened the defendant. She did not tell him that he must sign the form. The defendant does not allege that he felt "pressured" to sign the form as did the defendant in Morales v. Rios, id. The defendant does not deny that he read and understood the acknowledgment and the information section which includes clear warning that the document is legally binding. The defendant clearly understood that he was not compelled to sign the form, but that by doing so he waived his rights to contest the paternity. "A stipulated judgment . . . is not voidable on the ground that it was accepted with reluctance, so long as its procurement was not the result of fraud, duress, or mistake." Sparaco v. Tenney, 175 Conn. 436, 437-38, 399 A.2d 1261 (1978); Bryan v. Reynolds, 143 Conn. 456, 460-61, 123 A.2d 192 (1956); Shaw v. Spelke, 110 Conn. 208, 215, 147 A. 675 (1929).
The defendant has failed to prove any of the elements of duress. There was no wrongful act or threat by the plaintiff. He was not placed in a position of having no reasonable alternative. He was not placed at an unfair disadvantage or deprived of his free will.
F LACHES
"Laches consists of an inexcusable delay which prejudices the defendant." Bozzi v. Bozzi, 177 Conn. 232, 239, 413 A.2d 834 (1979); Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 685, 116 A.2d 906 (1955); Brock v. Cavanaugh, 1 Conn. App, 138, 140, 468 A.2d 1242 (1984); Lownds v. Lownds, 41 Conn. Sup. 100, 551 A.2d 775 (1988); Lynk v. Lynk, 11 S.M.D. 233, 235; Thomas v. Ah Tau Ah Nee, 8 S.M.D. 135, 139 (1994); Samatowitz v. Samatowitz, 4 S.M.D. 30 (1990). "Laches consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant . . . The mere lapse of time does not constitute laches . . . unless it results in prejudice to the defendant . . . as where, for example, the defendant is led to change his position with respect to the matter in question." (Citations omitted; internal quotation marks omitted.) Papcun v. Papcun, 181 Conn. 618, 620-21, 436 A.2d 282 (1980).
It is apparent that even after the acknowledgment was filed, the defendant had sufficient opportunity to raise the issue of paternity. He did not exercise reasonable diligence in pursuing such opportunities. His delay was not excusable and did prejudice the interests of the child and the state. Castonguay v. Plourde, 46 Conn. App. 251, 265, 699 A.2d 226, cert. denied 243 Conn. 931, 701 A.2d 660 (1997); White v. Cordier, supra, 14 S.M.D.; Joseph v. Lilburn, 14 S.M.D. (2000). The defendant is barred from opening the paternity acknowledgment by laches.
G THE INTEREST OF THE STATE OF CONNECTICUT
"There is no doubt that the State of Connecticut has an interest which would be prejudiced by opening the judgment." White v. Cordier, supra, 14 S.M.D. McNealy v. Dancy, 13 S.M.D. 113, 115, 1999 Ct. Sup. 12793, 12795 (sub nom. Tiffany M. v. Walter D.) (1999). "The State's financial interest is not the determining factor but one of many the court must analyze." Joseph v. Lilburn, 14 S.M.D. (2000).
The State has incurred direct out-of-pocket cost of public assistance paid on behalf of Danaisha. If the judgment is opened the State will be required to refund any money it collected through the support order. General Statutes § 46b-172 (c). Liability for past due support against any subsequently named putative father is limited to three years prior to the commencement of the new paternity case. In addition to its own direct fiscal interest, Connecticut "evinces a strong state policy of ensuring that minor children receive the support to which they are entitled." In re Bruce R., 234 Conn. 194, 209, 662 A.2d 107 (1995).
H. THE INDEPENDENT INTEREST OF THE CHILD
A child's "interest in establishing paternity is a fundamental state and federal constitutional liberty interest [which] the judicial system must afford the child an opportunity to exercise and protect . . ." Andrews-White v. Mitchell, 15 Conn.L.Rptr. 629, 1995 Ct. Sup. 12880 (McWeeny, J., Nov. 13, 1995); Taylor v. Martin, 14 S.M.D., 26 Conn.L.Rptr. 404 (2000). Connecticut has long recognized that children have a separate and independent interest in family relations matters. In re Bruce R., supra, 234 Conn. 209-10; Nye v. Marcus, 198 Conn. 138, 502 A.2d 869 (1985); Guille v. Guille, 196 Conn. 260, 492 A.2d 175 (1985); Salvio v. Salvio, 186 Conn. 311, 441 A.2d 190 (1982); Yontef v. Yontef, 185 Conn. 275, 440 A.2d 899 (1981). "It can no longer be disputed that the minor child . . . has a separate and distinct interest in the outcome of this motion." Pullen v. Cox, 9 S.M.D. 134, 145 (1995). See also Newman v. Newman, 235 Conn. 82, 663 A.2d 980 (1995).
The very right of the child to knowledge of his parentage is included among the factors to be weighed in opening a judgment. Johnston v. Domina, Superior Court, Judicial District of Hartford, Doc. No. FA88-0340848, 23 Conn.L.Rptr. 102, 1998 Ct. Sup. 11005 (Dranginis, J., Sep. 24, 1998); Lillibridge v. Lillibridge, Superior Court, Judicial District of Hartford, Doc. No. FA89-0356816 (Dranginis, J., October 21, 1998). However, it is not uniformly accepted that the interest of a minor child in determining his parentage categorically trumps traditional concern for finality of judgment. Evidence of non-paternity even as strong as an exclusionary DNA test does not always establish a material mistake sufficient to open a paternity judgment. Velez v. Torres, 16 S.M.D. (Lifshitz, F.S.M., Dec. 27, 2002). These are issues the court must weigh and consider in determining the motion presently before the court. In this regard the court places substantial weight on the opinion of the child's counsel and guardian ad litem. Velez v. Torres, 16 S.M.D. (Lifshitz, F.S.M., Dec. 27, 2002); Morales v. Rios, 15 S.M.D. 2001 Ct. Sup. 1380 (2001).
The plaintiff bases her present opinion on her observation of Danaisha's physical features compared to those of the defendant and Mr. Ramos. There is little else to suggest confidence in her present allegation that Luis Ramos is Danaisha's true father. This does not amount to clear and convincing evidence. No DNA evidence has been proffered and, as discussed earlier, the court is without authority to order genetic tests. In hindsight it would have been far better had Mr. Caceres availed himself of DNA test back in 1998 before signing an acknowledgment, or when suggested by the plaintiff prior to the support judgment. That does not allow this court the luxury of circumventing established law now.
The defendant has had little contact with Danaisha. His principal contribution has been his child support payments. Financial support is linked to the best interests of a minor child. "Connecticut child support enforcement legislation clearly evinces a strong state policy of ensuring that minor children receive the support to which they are entitled." In re Bruce R., 234 Conn. 194, 209, 662 A.2d 107 (1995). Support is one of the best interest considerations the court must consider. Id., 210-12; In re Jessica M., 47 Conn. Sup. 42, 51, 774 A.2d 1097, 29 Conn.L.Rptr. 404 (2001). In Interest of K. J. K., 396 N.W.2d 370, 371-72 (Iowa App. 1986); In Interest of A. B., 151 Wis.2d 312, 322, 444 N.W.2d 415 (Wis. App. 1989).
The existing paternity judgment at least assures continuing child support for Danaisha. If the judgment is opened there is no certainty that paternity would be reestablished. There has been only slightly more connection with Mr. Ramos and no significant bonding. The child's attorney argues that the defendant waived his rights long ago and should be held to that now. The guardian ad litem would prefer to have genetic testing. In the absence of such tests, she opposes opening the judgment. Unfortunately, neither option now available is very palatable.
In view of the absence of clear evidence of fraud, mistake or duress, the failure of the defendant to exercise reasonable diligence, and best interests of the minor child there are more and better reasons to deny the motion than to grant it. Colangelo v. Hunter, 15 S.M.D. 2001 Ct. Sup. 16693 (Colella, F.S.M., 2001); Valentin v. Olivero, 15 S.M.D. (Alvord, F.S.M., 2001). Accordingly, the motion to open the judgment is hereby denied.
III PARENTING ORDERS
It is apparent from the report of the guardian ad litem and the testimony of both parties that neither the defendant nor Luis Ramos have played much of a part in parenting Danaisha. The defendant's main contribution has been paying child support. Ramos has seen a bit more of the child, and is identified by her as father but his visits have been infrequent and there has been little bonding. Transcript, 6/6/2002, p. 22-24, 37-38, 44-48.
No court can force these parties to make the full benefits of two-parent participation available to Danaisha. Ms. Rosado and Mr. Caceres will first need to reconcile themselves to the results of this motion. The court believes that they will both need help in learning how to properly relate to Danaisha in the context of these circumstances. Therefore, pursuant to General Statutes §§ 46b-69b and 46b-231 (m) (12) both parents are ordered to participate in the parenting education program. They are required to commence the program within sixty days of this decision. The court declines to waive the fee.
They are also required to meet at least once with Family Relations. Unless they are able to set up a mutually agreeable appointment, they are ordered to appear at the court session on Monday, May 19, 2003 at 10:00 A.M. to meet with the Family Relations Officer attending court on that date.
IV CONCLUSION
For the reasons stated, the motion to open the judgment is denied. The parties are ordered to participate in the parenting education program and to meet with the Family Relations Officer.
BY THE COURT
Harris T. Lifshitz Family Support Magistrate