Opinion
No. FA92-0039347
October 26, 2004
ARTICULATION OF MEMORANDUM OF DECISION
The State of Connecticut commenced this paternity petition against the defendant pursuant to General Statutes § 46b-162. The named plaintiff Debra Russo, is the mother of a son Robert John Barr Jr.
The matter came to the court for trial on December 3, 1996. Putative father did not appear, mother was present. The plaintiff testified under oath naming the defendant as the baby's father. Thereafter, the court entered judgment that the defendant Barr was the boy's father.
Although the parties maintained a friendship for a period of time, they no longer maintained a family unit. Ms. Russo eventually began a relationship with another person.
The next court activity was the filing of the present motion to open the paternity judgment. Both parties appeared and a full contested hearing was held.
Respondent testified that the plaintiff told him he (Barr) may not be the father.
The plaintiff testifies that it may be possible that "someone else could be the father."
I — JURISDICTION
General Statutes § 46b-168 provides for court-ordered DNA testing when "the Question of paternity is at issue."5 However, our Appellate Court has held that where a paternity judgment exists the court lacks the authority to order genetic tests unless the judgment is first opened. Cardona v. Negron, 53 Conn.App. 152, 157, 728 A.2d 1150 (1999); Anderson v. Bailey, 15 S.M.D. (Burt, F.S.M., Feb. 14, 2001). There is no specific statute relating to opening of an adjudicated paternity judgment. McNealy v. Dancy, 13 S.M.D. 113, 122, 1999 Ct.Sup. 12793 (1999). A movant must rely on provisions for opening any civil judgment, General Statutes § 52-212a and Practice Book § 17-4.6 "These provisions allow a four month window from the date of judgment within which such a motion may be brought." In re Jonathan M., 255 Conn. 208, 237, 764 A.2d 739 (2001); Drakeford v. Ward, 15 S.M.D. (Lifshitz, F.S.M., Nov. 7, 2001).
Earlier cases held that courts lacked subject matter jurisdiction to open a judgment unless the motion was filed within four months. Van Mecklenberg v. Pan American World Airways, Inc., 196 Conn. 517, 5118, 49 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 recent law characterizes the statutory bar 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 nine years after the date of the original judgment. 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).
Even if the defendant successfully proves that at least one of the above factors applies, 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).
II — FINALITY OF JUDGMENT
Our courts favor finality in judicial decisions. Meinket v. Levinson, 193 Conn. 110, 113, 414 A.2d 454 (1984); Vogel v. Vogel, 178 Conn. 358, CT Page 16613-1 362, 422 A.2d 271 (1979); Perkins v. Perkins, 3 Conn.App. 322, 328, 487 A.2d 1117 (1985); Tirado v. Rivera, 13 S.M.D. 212, 221, 1999 Ct.Sup. 15638 (1999); Joseph v. Lilburn, 14 S.M.D. (2000); 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); White v. Cordier, 14 S.M.D. 27 Conn. L. Rptr. 365 (2000); Puller 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, 13 S.M.D. (Alvord, F.S.M., June 11, 2001).
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).
III — 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, 14 S.M.D. 98, 27 Conn. L. Rptr. 365, CT Page 16340 2000 Ct.Sup. 6486 (2000); McNealy v. Dancy, 13 S.M.D. 113, 119, 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, 15 S.M.D. 7 Conn.Ops. 1302 (Colella, F.S.M., Oct. 29, 2001); see also Alaimo v. Royer, 138 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. 212, 221, 1999 Ct.Sup. 15638 (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); Cruz v. Hudson, 16 S.M.D. 2002 Ct.Sup. 4027 (2002); Tirado v. Rivera, 13 S.M.D. 212, 221, 1999 Ct.Sup. 15638 (1999); McNealy v. Dancy, supra, 13 S.M.D. 120; Pullen v. Cox, supra, 138.
The court is not persuaded that the plaintiff committed fraud so as to induce the defendant to waive genetic tests and admit paternity. There is testimony that petitioner had sexual intercourse with another who "could possibly" be the father. On the date of the hearing (if he were present) he could have easily asked for a DNA test, ascertained the actual cost of the tests and that he could apply for State payment of those costs if he claimed indigency. "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). It was up to the defendant to produce appropriate evidence for the court. His failure to follow through does not create a fraud. This court finds that Mother's testimony that she had protected sex once with another did not put her in the state of mind to believe she was engaging in fraud. This court finds it reasonable and logical that Mother believed what she told Mr. Barr; i.e., he was the father.
IV — MISTAKE
Courts have held that although 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). 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); Valentin v. Olivero, 15 S.M.D. (Alvord, F.S.M., June 11, 2001). "There is no bright line standard as to what constitutes a "mistake" sufficient to confer jurisdiction on a court to open a judgment after four months." McNealy v. Dancy, 13 S.M.D. 113, 122, 1999 Ct. Sup. 12793 (1999).
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., CT Page 16342 221 Conn. 185, 190, 602 A.2d 1007 (1992). There is no requirement of "mutual mistake." The material mistake can be mutual or unilateral. The language of the paternity acknowledgment act is instructive in determining what constitutes a "mistake." The statute includes "evidence that he is not the father" as a "material mistake of fact." It is also significant that the clause is preceded by the word "may." The provision does not create a bright line standard but merely allows the court to consider evidence of non-paternity among other factors.
It is difficult to consider what happened at the initial default hearing in this case to fall under the rubric of "mistake." The defendant's lack of diligence by not appearing is also a factor on the issue of mistake. If there was a mistake it was caused by the defendant's failure to avail himself of the DNA test timely or even within four months after trial. The court does not find mistake to be an appropriate basis to open this judgment.
V — LACHES
More than nine years elapsed before the defendant took any formal action to open the judgment. There is no plausible explanation for this delay.
The defendant "had ample opportunity to raise the paternity issue, if he so chose, within the statutory time, and incidentally at a time less prejudicial to the State and [the child]." Pullen v. Cox, 9 S.M.D. 134, 144 (1995); Angelus v. Angelus, 20 Conn. L. Rptr. 252 (1997); Perkins v. Perkins, 3 Conn.App. 322, 487 A.2d 1117 (1985). "Whether the issue `was actually litigated is immaterial in view of the necessary conclusion that there was full opportunity to litigate it and, that it was adjudicated by the decree.' Jackson v. Irving Trust Co., 311 U.S. 494, 503, 61 S.Ct. 326, 85 L.Ed. 297 (1941)." Perkins, supra, 3 Conn.App. 327. See also Pagani v. Davis, Superior Court, judicial district of Hartford/New Britain at Hartford, doc. no. 602649 (Kaplan, J., July 18, 1991); Bleidner v. Searles, 19 Conn.App. 76, 561 A.2d 954 (1989); White v. Cordier, 14 S.M.D. 27 Conn. L. Rptr. 365 (2000).
"Laches consists of an inexcusable delay which prejudices the defendant." Bozzi v. Bozzi, 177 Conn. 232, 239, 413 A.2d 834 (1919); 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).
In the present case it is found that the defendant had sufficient opportunity to have paternity tests prior to the entry of judgment. Yet his response was limited to discussions with the plaintiff. He could have moved to open the judgment within the four-month statutory period and then pursued genetic tests. 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, 14 S.M.D., 27 Conn. L. Rptr. 365, 2000 Ct.Sup. 6486 (2000); Joseph v. Lilburn, 14 S.M.D. (2000). The defendant is barred from opening the paternity acknowledgment by laches.
VI — THE INTEREST OF THE STATE OF CONNECTICUT
The State did incur direct out-of-pocket costs of public assistance paid on behalf of the child. 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, which will preclude recoupment of the public assistance Paid. 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).
VII — 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, 135 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 930 (1995).
More recently courts have included the very right of the child to Knowledge of his parentage among the factors to be weighed in opening a Judgment. In Johnson v. Domina, Superior Court, Judicial District of Hartford, doc. No. FA88-0340848, 1998 Ct.Sup. 11005 (Sep. 24, 1998) the court, Dranginis, J., held "that the right of the child to knowledge and establishment of paternity supercedes any interest the court might have in preserving a judgment entered by default, and where clear and convincing evidence of fraud on the court is present . . . This child's interest in preserving rights which grow from the biological father must take precedence even over a ten-year-old judgment of the court." One month later, in a similar situation, Judge Dranginis opened a nine-year-old dissolution judgment for DNA testing. "This court has ruled that the right of the child to a conclusive determination of paternity supersedes the need for finality of judgments, and the ease with which a confirming test of paternity can now be determined, requires a conclusive finding of paternity. This child has been told that there is doubt as to her paternity. The child has a right to know for sure whether or not the defendant in this case, who she has known as her father, is indeed her father. Her property rights are at interest here, and the ability of the parties to ascertain their responsibilities conclusively, so as to further minimize conflict over such a delicate issue, is of primary concern for the long-term well being of this child. When a debate over paternity occurs post-judgment (sic), and there is evidence of sexual infidelity which creates a doubt as to paternity, it is incumbent upon the parents to use scientific evidence to conclude the debate, and have closure for the family." Lillibridge v. Lillibridge, Superior Court, Judicial District of Hartford, doc. No. FA89-0356816 (October 2, 1998).
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. For example, in subsequent proceedings in the Lillibridge case, DNA testing excluded the defendant as the father of one of the two children of the marriage. The defendant then filed a "motion to modify/terminate support" which "by stipulation of the parties the court [treated] as a motion to reopen and modify judgment regarding child support." In an eleven-page memorandum, the court, Devine, J., held that notwithstanding the exclusion by DNA, the defendant had not sustained his burden of proof. The court found that the defendant knew of the infidelity of his wife well before the dissolution but failed to pursue available paternity testing and continued to hold himself out as the child's father. Lillibridge v. Lillibridge, Superior Court, Judicial District of Hartford, doc. No. FA89-0356816, 24 Conn. L. Rptr. 636 (June 1, 1999).
The court is persuaded that these are issues the court must weigh and Consider in determining the motion presently before the court. There is no doubt that this relationship has been chilled by the suspicions of Mr. Barr and the statement by Ms. Russo that she had another liaison which could have resulted in the conception.
Respondent bases his motion on "wanting to be sure." His presentation 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. Barr availed himself of DNA test back in 1991 when he had that opportunity through the court. The motion seems more connected to their falling out and someone else in Ms. Russo's life than the best interests of their child. It is unfortunate that a fourth ground for re-opening does not exist, to wit, "in the best interests of the child(ren)." If this ground existed, this court may have re-opened the judgment. However, in the opinion of the court, that option does not exist in the law as it exists today in Connecticut. 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 Interest of K.J.K., 396 N.W.2d 370, 371-72 (Iowa App. 1986); In Interest of A.B., 1 51 Wis.2d 312, 322, 444 N.W.2d 415 (Wis.App. 1989).
VIII — CONCLUSION
While our courts have commented on the desirability of increased utilization of genetic tests in paternity determinations9, Palomba v. Gray, 208 Conn. 21, 36-37, 543 A.2d 1331 (1988); Joseph v. Lilburn, 14 S.M.D. (2000), Once a paternity judgment is entered, this approach is precluded by the Appellate Court's decision in Cardona v. Negron, 53 Conn.App. 152, 157, 728 A.2d 1150 (1999).
Bound by Cardona v. Negron, and in view of the absence of clear evidence of fraud or mistake, the failure of the defendant to exercise reasonable diligence, the court finds, on balance, that there are no grounds upon which to grant the motion. Accordingly, the motion to open the judgment is hereby denied.
BY THE COURT
John P. McCarthy Family Support Magistrate.