Summary
In Wright this court determined that "[t]he defendant's delay was not excusable and prejudiced the interests of the child and the state.
Summary of this case from Eubanks v. MossOpinion
No. NNHFA930347738
December 12, 2007
MEMORANDUM OF DECISION
The plaintiff mother gave birth to Krisshonn M. Wright at New Haven on September 29, 1992. The State of Connecticut, pursuant to its authority under General Statutes § 46b-162 filed a paternity petition in May 1993 naming the defendant Christopher Holland as the father. The petition was served upon the defendant at his usual place of abode. The defendant was subsequently defaulted for failure to appear. After a hearing on September 13, 1993, the court, Miller, F.S.M., adjudged the defendant to be Krisshonn's father and established an order of $54.00 payable by the defendant for child support.
Notice of the default judgment was purported served upon the defendant on October 5, 1993. In 1998 the defendant filed an appearance and moved to modify the support order. As a result, the arrearage payments were reduced while the support order itself was unchanged. Later in the same year Support Enforcement filed a contempt citation against the defendant which was resolved after two court dates in unremarkable fashion.
The notice was sent by certified mail. A receipt was returned, but was signed by a Tonia Holland, not by the defendant. However, the defendant has not raised validity of service of the nation of the petition, or notice as a basis for this motion, and these claims were waived by subsequent appearance.
In March 2004 the plaintiff filed a motion to open the paternity judgment. She alleged that the defendant was not Krisshonn's biological father as determined by an alleged DNA test showing one Shawn Harris to be the biological father. This motion precipitated several hearings. The State objected to the motion. A guardian ad litem was appointed for the minor child, and the court, Baran, F.S.M., over the defendant's objections, continued the matter for the plaintiff to obtain an attorney and for the guardian ad litem to investigate the best interests of the child. Transcript, 8/4/2004.
The guardian ad litem, Attorney Patricia Buck Wolf issued a written report recommending that the court open the paternity judgment. According to Attorney Wolf's report, both the plaintiff and the defendant related to her that for many years both of them believed that the defendant was Krisshonn's biological father. This perception was undone by happenstance. A former acquaintance of the plaintiff, Shawn Harris, saw her with Krisshonn in a grocery store and claimed a physical resemblance. He contacted the plaintiff and persisted in a claim that Krisshonn was his son. Apparently in an effort to refute the claim, the plaintiff ultimately agreed to genetic testing. However, apparently the results of the test indicated that Mr. Harris was indeed the biological father.
After several continuances, a hearing was held on the plaintiff's motion on April 22, 2005. The plaintiff and defendant each appeared without counsel. The guardian ad litem was present. The State renewed its objection. The plaintiff called Shawn Harris as her first witness. As the hearing progressed, the plaintiff encountered vociferous objection by the state and had increasing difficulty in getting the testimony before the court. Ultimately, the plaintiff asked for a continuance to obtain counsel. Transcript, 4/22/2005. The hearing was continued to July 15, 2005.
On the next hearing date, neither the plaintiff nor the defendant attended. Assistant Attorney General Gail Lawrence submitted a written withdrawal of the motion to open signed by the plaintiff. No explanation was proffered but the court accepted the withdrawal of the motion. Transcript, 7/15/2005.
Thereafter, the defendant attempted to file a pro se motion to open. The motion, dated July 18, 2005 was apparently never served and returned. Subsequently, Attorney Paul V. Carty filed a "motion to vacate and nullify judgment," dated September 18, 2006 and served on the plaintiff and the State in November. That motion, which has been treated as defendant's motion to open, relied substantially on a claim of fraud. Subsequently, on April 16, 2007, the defendant amended his motion to add a claim of mistake. That amended motion is presently at issue.
Attorney Wolf continues to serve as guardian ad litem for the minor child. The court also appointed Attorney Anthony Wallace as attorney for the minor child. Attorney Daniel Adelman represents the plaintiff, who now opposes opening the paternity judgment. After several further delays, a special hearing was conducted to hear the evidence with briefs and transcripts to be submitted by August 15, 2007.
Attorney Wolf submitted a supplemental report dated June 20, 2007. Consistent with her opinion in her original report, she recommends that the paternity judgment be opened and believes it to be in Krisshonn's best interests to do so. She reports that during his early years the defendant established somewhat of a father-son relationship with Krisshonn, but that waned in more recent times. She also reported that since the genetic test results were known, Shawn Harris and Krisshonn have developed a relationship and now this fifteen-year-old young man relates that he enjoys being with his "real father."
Attorney Wallace, as attorney for the minor child, takes a contrary position. "I believe that it's my client's wishes and in his best interest both to not open the judgment at this point." Pointing out that the defendant is paying child support and providing medical insurance for Krisshonn, he argues that opening the judgment would remove that support with some doubt as to whether it could or would be replaced by Mr. Harris. He also claims that Krisshonn's relationship with Mr. Harris is "not that strong." Transcript, 6/25/2007, pp. 79-80.
The court finds the following additional facts from the hearing, the reports of the guardian ad litem, the court record and the transcripts of the prior hearings: The plaintiff and the defendant commenced a relationship when they were approximately fourteen years old. In August 1991, the defendant married another woman and severed contact with the plaintiff. In December of that year the plaintiff had a "one night stand" with a Sean Harris. They had sexual intercourse but used condoms. The plaintiff states that shortly thereafter, in the second week of December, "Mr. Holland came back to my doorstep." Their sexual relationship resumed and in February, she found out she was pregnant. She did not disclose to the defendant her "one night stand" with Mr. Harris. She believed that Mr. Holland was the child's father because "he was the only person I would have unprotected sex with."
The guardian ad litem's first written report, dated October 14, 2004, relates a statement by Ms. Wright that the defendant had been her boyfriend from age fourteen until Krisshonn was two years old. At the hearing, she stated that she and the defendant were about a year apart in age. In response to the question "how long were you together?" she first responded "a long time" and then stated "age sixteen to twenty-one." The variance is not crucial to the determination of this motion.
The defendant did not appear at the paternity trial in September 1993 and the judgment was entered by default. The plaintiff did appear. She now recalls testifying that Mr. Holland was Krisshonn's father, but does not recall being asked whether or not she had sexual intercourse with any other man. Counsel attempted to obtain a transcript of the trial but were advised that the tapes of such hearings are destroyed after nine years.
Both the plaintiff and the defendant, as well as the guardian ad litem have made reference to the purported genetic test indicating Mr. Harris to be the father. This test was a basis for the plaintiff's 2004 motion as well as the defendant's 2006 motion and the amended motion presently pending. Yet the test results have never been entered into evidence. At both the August 2004 and the April 2005 hearings, the plaintiff, then pro se, was unable to introduce the test results over the State's objection. The defendant, by his attorney, subpoenaed the test results for a January 5, 2007 hearing. The plaintiff never produced the laboratory report and the defendant never took any action to enforce the subpoena. The plaintiff did not produce the test results at the June hearing either. At the time, the plaintiff, by her attorney, and the child's attorney offered to stipulate to the results. However the State refused to stipulate and renewed its objection to admission of the test results. This objection was sustained. Thus although discussion of those test results permeate the hearing, they are not in evidence. Notwithstanding the apparent belief of the plaintiff, the defendant, the child's representatives and the third party putative father, Shawn Harris that Mr. Harris has been "proven" to be Krisshonn's father, for purposes of this hearing there is insufficient evidence to support that claim.
The State is a full party to this motion and these proceedings and has every right to decline to stipulate to test results that have not been produced and subjected to the scrutiny of court review and cross-examination. Valentine v. Bernadel, 21 S.M.D. ___ (Strada, F.S.M., March 23, 2007). This purported genetic test was conducted on a third party to this action. It was not pursuant to a court order. Accordingly it is not subject to either the provision for admission into evidence without foundation, or the rebuttable statutory presumptions that pertain to a court-ordered genetic test of the parties found in General Statutes § 46b-168. The State had every right to scrutinize and challenge the identity of the parties tested, the chain of custody of the genetic samples as well as the laboratory report, the qualifications of the testing laboratory, and the statistical implications of the results. In view of the State's history in this case of repeatedly and vigorously objecting to the opening of the judgment and specifically to admission of the genetic test results, more robust efforts by defendant to secure the actual laboratory report and lay a thorough foundation might be expected. Furthermore, in view of the fact that at one time or another the plaintiff, the defendant and the guardian ad litem all favored opening the judgment, it is a mystery as to why the defendant himself did not submit to taking of a genetic sample, which could have been analyzed along with the samples already taken from the plaintiff and Krisshonn. At the end of the day, after several years of controversy, however one may speculate as to why, there are still no genetic tests in evidence in this case.
The testimony and the guardian ad litem's investigation suggest that Mr. Harris may have raised the issue of his putative paternity as long ago as 2000 and that Mr. Holland may have had suspicions dating back many years. It is over three years since Ms. Wright's motion was filed. In view of this time context, Krisshonn's age, and the vesting of the burden of proof with the moving party, the court was disinclined to further delay hearing the matter.
The original current support order in this case has never been modified. The original arrearage of $5,792.18 to the State in 1993 increased to a total of $22,100.01 by March 2006. Thus the defendant's compliance with the child support order has been less than stellar. However, the defendant has paid something over five years and over $15,000 of child support and has maintained Krisshonn on his family health insurance.
At the hearing on that date, court, McCarthy, F.S.M., found arrears of $4,713.30 to the plaintiff and $17,386.71 to the State.
I FINALITY OF JUDGMENT
"A family support magistrate has the inherent authority to open a default judgment of paternity when presented with a motion to open filed by a party with standing to do so." Ragin v. Lee, 78 Conn.App. 848, 864, 829 A.2d 93 (2003). "The authority to open and vacate a judgment is within the inherent power of the trial courts . . . A motion to open and vacate should be granted when the court, acting reasonably, finds good cause to do so." Yaremich v. Lam, 71 Conn.App. 650, 803 A.2d 369 (2002). 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).
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. "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); Commissioner of Social Services v. Fronterotta, 18 S.M.D. ___, 2004 Ct.Sup. 15952 (McCarthy, F.S.M. 2004); Drakeford v. Ward, 15 S.M.D. 372, 376, 2001 Ct.Sup. 15865, (Lifshitz, F.S.M., Nov. 7, 2001); see also Dimmock v. Allstate Ins. Co., 84 Conn.App. 286, 241, 853 A.2d 543, cert. denied, 271 Conn. 923, 859 A.2d 577 (2004).
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, 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 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 amended motion to open was filed more than thirteen years after the date of the original judgment, well beyond the statutory time bar. "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, supra, 15 S.M.D. 377. 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, 78, 238 A.2d 421 (1968); Fedele v. Romero, 37 Conn.Sup. 885, 888, 441 A.2d 867 (1982). Commissioner of Social Services v. Fronterotta, 18 S.M.D. ___, 2004 Ct.Sup. 15952 (McCarthy, F.S.M. 2004).
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, 15 S.M.D. 356, 7 Conn.Ops. 1302, 2001 Ct.Sup. 14254 (2001); Tirado v. Rivera, 13 S.M.D. 230, 238, 1999 Ct.Sup. 15638 (1999). "Because of the important consideration of finality of judgments . . . a judgment should not be opened without a strong and compelling reason . . . The motion should be granted only when there appears cause for which the court acting reasonably would feel bound in duty so to do." (Citations omitted; internal quotation marks omitted.) Martin v. Martin, 99 Conn.App. 145, 156, 913 A.2d 451 (2007); Cadle Co. v Errato, 2007 Ct.Sup. 11085 (Lopez, J., June 20, 2007).
"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); Daly v. Daly, 19 Conn.App. 65, 71, 561 A.2d 951 (1989); Drakeford v. Ward, supra, 15 S.M.D. 382, 2001 Ct.Sup. 15865 (2001); White v. Cordier, 14 S.M.D. 85, 27 Conn.L.Rptr. 365, 2000 Ct.Sup. 6486 (2000); 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); Joseph v. Lilburn, supra, 14 S.M.D. 337. "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). "It clearly is not in a child's best interest to allow a defendant to revoke his paternity at any time during the child's life." Dawkins v. Nash, supra, 15 S.M.D. 369.
In the present case, the passage of such a long period of time weighs heavily in favor of upholding the finality of this judgment. The defendant could have appeared at the original hearing and moved for genetic tests. He could have attempted to privately obtain DNA tests since then. He admits that he was aware of his rights to genetic tests and voluntarily failed to pursue them, even after entertaining second thoughts about the validity of the paternity judgment. This is not a case where the defendant inadvertently or for some compelling cause missed the statutory deadline by a few weeks or months.
The court is not persuaded by the defendant's claim that he relied on the plaintiff's vow to "rectify the situation." It is not reasonable that the defendant would place exclusive reliance on the same person that he now accuses of defrauding him in the first instance.
Moreover, the plaintiff's election to withdraw her motion was not explained at the time, and has yet to be illuminated. It is striking, however, that at the July 15, 2005 court hearing, which was slated for the evidential hearing on the plaintiff's motion to open, neither the plaintiff nor the defendant attended court. The defendant could have objected to withdrawal of the plaintiff's motion to open, but he did not do so. He failed to exercise reasonable diligence either in pursuing his rights when the judgment was originally established, or in attempting to open the judgment in a reasonably timely manner thereafter.
II FRAUD
The defendant claims that the plaintiff fraudulently represented that the defendant was the only person with whom she had sexual intercourse during the possible time of conception of Krisshonn.
It is well established that a judgment obtained by fraud may be attacked even after the time limitation for opening the judgment. Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 466, 440 A.2d 159 (1981); Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980); Nelson v. Charlesworth, 82 Conn.App. 710, 713, 846 A.2d 923 (2004); Gatling v. Gatling, Superior Court, judicial district of Waterbury, doc. no. 52272 (Harrigan, J., Aug. 9, 1990); Cardona v. Negron, 13 S.M.D. 133, 139 (1999). "The power of the court to vacate a judgment for fraud is regarded as inherent and independent of statutory provisions authorizing the opening of judgments; hence judgments obtained by fraud may be attacked at any time." (Internal quotation marks omitted.) Billington v. Billington, 220 Conn. 212, 218, 595 A.2d 1377 (1991).
"Fraud is defined as [d]eceit, deception, artifice, or trickery operating prejudicially on the rights of another, and so intended, by inducing him to part with property or surrender some legal right . . . Anything calculated to deceive another to his prejudice and accomplishing the purpose, whether it be an act, a word, silence, the suppression of the truth, or other device contrary to the plain rules of common honesty." (Internal quotation marks omitted.) Nelson v. Charlesworth, supra, 82 Conn.App. 714; Cadle Co. v. Errato, 2007 Ct.Sup. 11085, 11091 (Lopez, J., June 20, 2007).
In order to establish fraud, the moving party must prove: "(1) that a false representation was made as a statement of fact; (2) that it was untrue and known to be untrue by the party making it; (3) that it was made to induce the other party to act on it; and (4) that the latter did so act on it 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); Whitaker v. Taylor, 99 Conn.App. 719, 730, 916 A.2d 834 (2007).
"All of these ingredients must be found to exist . . . Additionally, [t]he party asserting [fraud] must prove the existence of the first three of [the] elements by a standard higher than the usual fair preponderance of the evidence.
The party claiming fraud . . . has the burden of proof . . . Whether that burden has been met is a question of fact . . ." (Internal quotation marks omitted.) Duplisse v. Devino, 96 Conn.App. 673, 680-81, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006).
The moving party bears a heavy burden of proof. "[T]he elements of fraud must be proved by clear and convincing evidence . . ." Dockter v. Slowik, 91 Conn.App. 448, 453-54, 881 A.2d 479, cert denied, 276 Conn. 919, 888 A.2d 87 (2005). The standard is also phrased "clear, precise and unequivocal evidence." 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 (March 23, 1995, Sheldon, J.); Pullen v. Cox, 9 S.M.D. 134, 138 (1995). "Fraud must be proven by . . . a standard more exacting than a fair preponderance of the evidence." Smith v. Brown, Superior Court, judicial district of Waterbury, doc. no. 80340 (June 16, 1993, Harrigan, J.); Gatling v. Gatling, supra; Dawkins v. Nash, supra; Martinez v. Collins, supra.
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); Ramos v. Cox, 16 S.M.D. 548, 557, 2002 Ct.Sup. 15144-m (2002); Tirado v. Rivera, 13 S.M.D. 212, 221, 1999 Ct.Sup. 15638 (1999); Pullen v. Cox, supra, 138.
"Furthermore, in order to prove that the misrepresentation was fraudulent as opposed to merely negligent, the party asserting fraud must prove the element of intent, i.e., that the misrepresentation 'was made to induce the action by the other party.' (Internal quotation marks omitted.) Whitaker v. Taylor, [ supra] 99 Conn.App. 730 . . . [I]n order to prevail on [his] motion to open the judgment, the defendant must meet the burden of proof by clear and convincing evidence, that the representation of fact made by the plaintiff during the trial was false, that the plaintiff knew it to be false, that the representation was made to induce the court to find for the plaintiff and that the representation actually induced the court to find for the plaintiff." CT Page 21470 Cadle Co. v. Errato, 2007 Ct.Sup. 11085, 11091 (Lopez, J., June 20, 2007).
The defendant's fraud claim is based entirely on the assertion that he was led to believe that at the time of conception of the child, his sexual relationship with the plaintiff was exclusive. There is no evidence that the plaintiff specifically and deliberately denied any other sexual relationship either to the defendant or to the court. At most, the plaintiff failed to volunteer the information she now admits — that she had a "one night stand" with another individual during the possible time of conception.
"[The plaintiff] is under no legal obligation to divulge her sexual history to the defendant . . . In fact, 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." Valentin v. Rodriguez, 21 S.M.D. ___ (2007); Brown v. Cain, 21 S.M.D. ___ (2007); Martin v. Harrell, supra, 16 S.M.D. 314, 2002 Ct.Sup. 6995 (2002); Joseph v. Lilburn, 14 S.M.D. 337, 343 (2000). In this day and age any expectation of exclusivity among sexually active unmarried persons is implausible.
In this particular case, the defendant's complaint is especially ludicrous. It was the defendant who interrupted his relationship with the plaintiff by marrying another woman. When he returned to the plaintiff's doorstep several months later, he clearly felt no need to account to her for his exploits in the intervening time. In 21st Century Connecticut, the plaintiff was likewise under no obligation to account to the defendant. This is not the 15th Century Levant.
It is clear that not only the plaintiff but also the defendant believed him to be Krisshonn's father at the time of the paternity judgment. The issue is not whether she failed to disclose another sexual relationship. The issue is whether she knowingly falsely claimed the defendant to be the father. There is no credible evidence that she induced the defendant to surrender his right to contest the paternity claim, or that she induced the court to accept a knowingly false assertion. In fact, at the time she believed that the defendant was the father. The conduct of the plaintiff does not meet the criteria for fraud.
Furthermore, as previously discussed, there has been a marked absence diligence on the part of the defendant. Although the plaintiff's filing of her own motion to open and then withdrawing it on the verge of the hearing is unusual and unexplained, the defendant failed to establish any intent by the plaintiff to delay his own effort to open the judgment. The defendant has failed to prove fraud.
III MISTAKE
In apparent recognition that his claim of fraud was weak, the defendant amended his motion to add a claim of 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)." Oquendo v. Negron, 18 S.M.D ___, 2004 Ct.Sup. 13383 (McCarthy, F.S.M. 2004).
"Mistake is not readily susceptible of general definition. To the extent that a comprehensive definition of the term can be fashioned, it has been said that it signifies an erroneous mental conception which influences a person to act or to omit to act." Guaranty Bank Trust Co. v. Dowling, 4 Conn.App. 376, 379-80, 494 A.2d 1216, cert. denied, 197 Conn. 808, 499 A.2d 58 (1985). "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. 107, 116, 1999 Ct.Sup. 12793 (1999).
Mutual mistake has been held to exist where both parties are mutually mistaken about the same material act. 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. Veilleux v. Burski, 14 S.M.D. 309, 311 (2000).
The provisions for reopening an acknowledged paternity may be pertinent to the extent that they illuminate to what extent mistake justifies opening a judgment. In this regard it has been held that "the statute does not create a bright line standard but merely allows the court to consider evidence of non-paternity among other factors." Martinez v. Collins, 15 S.M.D. 1, 11 (2001). Although not directly applicable to the present case, since this is an adjudicated paternity, not an acknowledgment, it is cited for purposes of providing guidance as to what fact patterns may constitute a material mistake. Parker v. Dansby, 19 S.M.D. ___, 39 Conn. L. Rptr. 768, 2005 Ct.Sup. 9453-i (Wihbey, F.S.M. 2005), affirmed, 41 Conn. L. Rptr. 245, 2006 Ct.Sup. 7184; see also White v. Cordier, 14 S.M.D. 98, 106, 27, Conn. L. Rptr. 365, 2000 Ct.Sup. 6486 (2000); McNealy v. Dancy, supra, 13 S.M.D. 122.
The paternity acknowledgment statute precludes review of a filed acknowledgment after sixty days or upon entry of a support order. The section provides that after this period of time 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).
In Parker v. Dansby, in a fact pattern somewhat similar to the present, the court found mistake and opened the judgment. The decision was affirmed on appeal. However, in another somewhat similar fact pattern, the court denied the motion, finding it "difficult to consider what happened at the initial trial in this case to fall under the rubric of 'mistake.' The defendant's lack of diligence at trial 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." Oquendo v. Negron, 18 S.M.D. ___, 2004 Ct.Sup. 13383 (McCarthy, F.S.M. 2004).
In another very recent case in this judicial district, a similar fact pattern, right down to the claim of a purported DNA test that was never entered into evidence, the court denied the motion to open. Valentin v. Rodriguez, 21 S.M.D. ___ (Lifshitz, F.S.M., June 11, 2007).
The defendant, the plaintiff, and the child's guardian ad litem have all alluded to the genetic test results as if a proven fact. The court does not doubt that each of them now believes that there was a mistake and that Mr. Harris and not Mr. Holland is Krisshonn's father. However, their belief is not determinative. As it is, the court could only speculate as to what degree of probability it suggests. This court cannot consider a court record that it has not viewed, that has not been produced and is not in evidence.
Furthermore, there is no genetic test that definitively and directly excludes the defendant. The defendant has failed to sustain his burden of proof that there was a mistake of sufficient gravity to warrant the opening of a thirteen-year-old judgment.
IV LACHES
The motion presently under consideration was filed extraordinarily late. As was recited in the factual findings, the defendant the paternity judgment entered after a court hearing on September 13, 1993. More than 13 years passed before the defendant filed this motion.
"Laches consists of an inexcusable delay which prejudices the [opposing parties]." 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 [opposing parties] . . . The mere lapse of time does not constitute laches . . . unless it results in prejudice to the [opposing parties] . . . as where, for example, [a party] is led to change his position with respect to the matter in question." (Citations omitted; internal quotation marks omitted; brackets added.) Papcun v. Papcun, 181 Conn. 618, 620-21, 436 A.2d 282 (1980); Kalinowski v. Kropelnicki, 92 Conn.App. 344, 352, 885 A.2d 194 (2005).
In Parker v. Dansby, 41 Conn. L. Rptr. 245, 2006 Ct.Sup. 7184, 7188 (Resha, J., 2006), the Superior Court affirmed the judgment of the Family Support Magistrate opening a paternity judgment for a seventeen-year-old child. The reviewing court specifically upheld the Family Support Magistrate's holding that the defendant was not barred by laches. It is important to note that Judge Resha's decision upheld the discretion of the Family Support Magistrate to make the appropriate factual findings and ultimately open the judgment. The decision did not hold that opening the judgment was required as a matter of law.
There are numerous decisions in which courts have exercised discretion to obtain an opposite result. Commissioner of Social Services v. Fronterotta, 19 S.M.D. ___, 2004 Ct.Sup. 15957, 15958 (McCarthy, F.S.M., 2004); Oquendo v. Negron, 19 S.M.D. ___, 2004 Ct.Sup. 13382, 13388 (McCarthy, F.S.M., 2004); State v. Barr, 19 S.M.D. ___, 2004 Ct.Sup. 13302, 13307 (McCarthy, F.S.M., 2004); Rivera v. Gonzales, 16 S.M.D. 440, 452, 2002 Ct.Sup. 11543 (Lifshitz, F.S.M., 2002).
The defendant suspected the validity of the paternity judgment years before Mr. Harris came back into the picture. He took no action until the plaintiff herself filed her motion. While the delay occasioned by the pendency of her motion might be excusable, the real issue is his lack of diligence in acting on his doubts long before the plaintiff disclosed the incident with Mr. Harris. He "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 . . .' 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; Commissioner of Social Services v. Fronterotta, 19 S.M.D ___, 2004 Ct.Sup. 15957, 15958 (McCarthy, F.S.M., 2004); Oquendo v. Negron, 19 S.M.D. ___, 2004 Ct.Sup. 13382, 13388 (McCarthy, F.S.M., 2004); State v. Barr, 19 S.M.D ___, 2004 Ct.Sup. 13302, 13307 (McCarthy, F.S.M., 2004); Rivera v. Gonzales, 16 S.M.D. 440, 452, 2002 Ct.Sup. 11543 (Lifshitz, F.S.M., 2002). 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).
The defendant's delay was not excusable and prejudiced 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.
V EQUITABLE ESTOPPEL
The State claims that the defendant should be equitably estopped from attacking the paternity judgment. "Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse . . . Its two essential elements are that one party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts to act on that belief, and that the other party, influenced thereby, must change his position or do some act to his injury which he otherwise would not have done." (Citations omitted; internal quotation marks omitted.) Bozzi v. Bozzi, 177 Conn. 232, 241-42, 413 A.2d 834 (1979); Gray v. Gray, Superior Court, judicial district of Tolland at Rockville, Docket No. FA64-9592 (April 17, 2003, Klaczak, J.T.R.).
"Estoppel rests on the misleading conduct of one party to the prejudice of the other. In the absence of prejudice, estoppel does not exist." W. v. W., 256 Conn. 657, 661-62, 779 A.2d 716 (2001); Remkiewicz v. Remkiewicz, 180 Conn. 114, 119, 429 A.2d 833 (1980). In a well-reasoned decision in Thompson v. Fulse, 18 S.M.D. ___, 2004 Ct.Sup. 11221, 11226 (Colella, F.S.M., 2004), the court found no evidence that the defendant attempted to mislead or induce the child, the plaintiff, or the State of Connecticut to act to their detriment. Similarly, in the present case, there is no evidence of any active, ongoing efforts of the defendant to mislead or induce the plaintiff, the child or the State to change their position. Therefore, the defendant is not equitably estopped from challenging paternity.
VI INTEREST OF THE MINOR CHILD
Connecticut has long recognized that children have a separate and independent interest in family relations matters. In re Bruce R., 234 Conn. 194, 209-10, 662 A.2d 107 (1995); 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).
"[A] child who is the subject of a paternity action has a fundamental interest in an accurate determination of paternity that is independent of the state's interest in establishing paternity for the benefit of obtaining payment for the child's care and any interest that the parents may have in the child." Ragin v. Lee, 78 Conn.App. 848, 861-62 (2003); Parker v. Dansby, 19 S.M.D. ___, 39 Conn. L. Rptr. 768, 2005 Ct.Sup. 94531 (Wihbey, F.S.M. 2005), affm'd 41 Conn. L. Rptr. 245, 2006 Ct.Sup. 7184 (Resha, J. 2006); accord Commissioner of Social Services v. Mercure, 2004 Ct.Sup. 16009 (Driscoll, J., 2004); Johnson v. Domina, Superior Court, Judicial District of Hartford, doc. No. FA88-0340848, 1998 Ct.Sup. 11005 (Dranginis, J., Sep. 24, 1998).
The very right of the child to knowledge of his parentage is among the factors to be weighed in opening a judgment. Andrews-White v. Mitchell, 15 Conn. L. Rptr. 629, 1995 Ct.Sup. 12880 (McWeeny, J. Nov. 13, 1995); Lillibridge v. Lillibridge, Superior Court, Judicial District of Hartford, doc. No. FA89-0356816 (Dranginis, J., October 21, 1998); Culbreath v. Agnew, 16 S.M.D. 132, 135 (Colella, F.S.M., Mar. 14, 2002); Colangelo v. Hunter, 15 S.M.D. 449, 459, 2001 Ct.Sup. 16693 (Colella, F.S.M., 2001); Dawkins v. Nash, 15 S.M.D. 356, 367, 7 Conn.Ops. 1302, 2001 Ct.Sup. 14254 (Colella, F.S.M., 2001); Anderson v. Bailey, 15 S.M.D. 80, 86 (Burt, F.S.M., Feb. 14, 2001); Taylor v. Martin, 14 S.M.D. 7, 26 Conn. L. Rptr. 404 (2000); McNealy v. Dancy, 13 S.M.D. 107, 113, 1999 Ct.Sup. 12793 (1999); Cardona v. Negron, 13 S.M.D. 133, 142, 1999 Ct.Sup. 10847 (Matasavage, F.S.M., 1999).
In subsequent proceedings, DNA testing excluded the defendant as the father of one of the two children of the marriage. The defendant 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 as to the elements of fraud. 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 (June 1, 1999) [ 24 Conn. L. Rptr. 636].
In a well-reasoned recent decision, the court suggested that at least the following five factors should be considered in analyzing whether it is in the child's best interest to open a paternity judgment: "(1) the genetic information available and (2) the past relationship of the involuntarily adjudicated father and child and (3) the child's future interests in knowing [his] parental biology, for example medical need to know parentage; ability to identify and develop a relationship with [the] biological parent, future legal rights such as inheritance, life insurance benefits, social security benefits, possible sibling relationships and (4) the child's ability to receive emotional and financial support from her biological father and (5) any potential harm that the child may be caused to suffer by disturbing the paternity judgment, including loss of parental relationship, and loss of financial support." (Underlines in original.) Rivera v. Torres, 21 S.M.D. (Wihbey, F.S.M., March 27, 2007); Weaver v. Sloane, 20 S.M.D. ___, 42 Conn. L. Rptr. 63, 2006 Ct.Sup. 16477 (Wihbey, F.S.M., Sept. 7, 2006).
The court places substantial weight on the opinion of the child's counsel and guardian ad litem. Cruz v. Hudson, 16 S.M.D. 138, 153, 2002 Ct.Sup. 4027 (2002); Morales v. Rios, 15 S.M.D. 24, 32, 2001 Ct.Sup. 1380 (2001); Hemingway v. Jones, 15 S.M.D. 103, 110 (Burt, F.S.M., Feb. 16, 2001). However, in the present case the guardian ad litem and the separate attorney for the minor child have opposite opinions. The guardian ad litem favors opening the judgment. The attorney for the minor child opposes it.
The guardian ad litem has filed two written reports and testified at the hearing. Her opinion is based on the presumed biological relationship with Mr. Harris and Krisshonn's expressed happiness of being with his "real father." Attorney Wallace, for the child, claims that it is both Krisshonn's wishes and in his best interests that the judgment not be opened. He argues that the defendant has been paying child support and provides health insurance. He states: "I don't think his biological father (sic) is going to be able to provide for him in any way . . ."
It is disconcerting that Attorney Wolf and Attorney Wallace have opposite impressions of Krisshonn's preference. It is not entirely unexplainable, however. As an adolescent in a very difficult position, he may simply have changed his mind, or may be vacillating between the two alternatives, or possibly be telling the two Attorneys and his mother what he thinks they want to hear. None of the parties saw fit to have Krisshonn testify. The court does not quarrel with this decision — it is often damaging to put a young man on the witness stand with perhaps little to gain in terms of a resolution. Consequently, this court can place little weight on Krisshonn's stated preference in view of the contradictory reports.
The court is also unable to place much weight on the relationship Krisshonn has with each man. It is apparent that whatever bonding may have once occurred with the defendant has dissipated over the years. There have been some efforts to acquaint Krisshonn with Mr. Harris. It is also noted that Mr. Harris appeared at the April 2005, where he stated his willingness to "step up" and acknowledge the child. Transcript, 4/22/2005, p. 9. However, Mr. Harris did not appear at subsequent hearings. He did not protest the plaintiff's withdrawal of her motion. It was reported that he may have been reincarcerated at or near the time of the final hearing, and there is precious little evidence of any "stepping up" on his part.
At an earlier hearing on the plaintiff's motion, the defendant engaged in a colloquy with the court, leading the court, Sosnoff Baird, F.S.M., to observe: "See, you know what I hear? I hear that this is a monetary thing with you, and not really what's in the best interest of this child, biologically, to know [his] father, and that's really sad, sir." In response, the defendant acknowledged such. Transcript, 8/6/2004, p. 8. And sadly, monetary issues still weigh heavily into the decision in this particular case.
Support is one of the "best interest" considerations the court must consider. In re Bruce R., 234 Conn. 194, 210-12, 662 A.2d 107 (1995); 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). Attorney Wallace focused on matters of monetary support, establishing that the present defendant has an ability to pay child support and provide health insurance for Krisshonn. Mr. Harris, on the other hand, continues to be in and out of correctional facilities and has shown no propensity to provide for the financial needs of Krisshonn on any sustainable basis.
It's not all about money, but because the other important factors considered in determining best interest are inconclusive, the court agrees with Attorney Wallace that maintaining the paternity judgment would at least provide a better chance for financial stability for the remaining years of Krisshonn's minority.
In considering the five factors in Weaver v. Sloane previously cited in the text, this court finds: (1) is inconclusive (the purported genetic test regarding Mr. Harris was never entered into evidence; see previous text for further analysis); (2) is inconclusive; (3) weighs slightly in favor of opening the judgment, (4) weighs in favor of denying the motion to open, because the evidence is not persuasive that Krisshonn will be provided significant emotional or financial support from Mr. Harris; (5) inconclusive as to whether there will be a loss to Krisshonn of the parental relationship with Mr. Holland, but clear evidence of harm by reason of loss of financial support from the defendant, which weighs in favor of denying the motion to open.
There is nothing that prevents Krisshonn, with the consent of his mother, and in just a few years on his own volition, from establishing a relationship with Mr. Harris. However, his best interests require that his legal father remain Mr. Holland. As Attorney Wallace points out, Mr. Holland held himself out to be Krisshonn's father for six-sevenths of Krisshonn's life. As numerous courts have observed: "The relationship of father and child is too sacred to be thrown off like an old cloak, used and unwanted . . . The law . . . [should not] countenance the breach of an obligation . . . undertaken, partially fulfilled, and suddenly sundered." Clevenger v. Clevenger, 189 Cal.App.2d 658, 674, 11 Cal.Rptr. 707, 716 (1961); In Re Marriage of Johnson, 88 Cal.App.3d 848, 852 152 Cal.Rptr. 121, 124 (1979); Perkins v. Perkins, 34 Conn.Sup. 187, 190-91, 383 A.2d 634 (1977); Winter v. Winter, 1998 Ct.Sup. 908, 911 (Sferrazza, J., January 26, 1998); Judson v. Judson, 15 Conn. L. Rptr. 191, 1995 Ct.Sup. 9934, 9941 (Gill, J. Aug. 2, 1995).
VII THE INTEREST OF THE STATE OF CONNECTICUT
The State has consistently opposed opening the judgment in this case. "In many paternity cases the State has a significant financial interest represented by either ongoing public assistance or recoupment of past public assistance. Even if no temporary family assistance has been paid, the State has an interest in a final paternity determination to secure proper financial support for the child with an eye to averting the necessity for future state assistance. See White v. Cordier, 14 S.M.D. 85, 27 Conn. L. Rptr. 365 (2000); McNealy v. Dancy, 13 S.M.D. 113, 115, 1999 Ct.Sup. 12793, 12795 (sub nom. Tiffany M. v. Walter D.) (1999)." Parker v. Dansby, 41 Conn. L. Rptr. 245, 2006 Ct.Sup. 7184, 7188 (Resha, J., 2006); Valentin v. Rodriguez, 21 S.M.D. ___ (Lifshitz, F.S.M. 2007); Drakeford v. Ward, 15 S.M.D. 372, 395, 2001 Ct.Sup. 15865 (2001).
Even absent a 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). "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. 337, 354 (2000).
The State has incurred direct out-of-pocket cost of public assistance paid on behalf of the child. The last court finding of arrearages, on March 29, 2006, was $4,713.30 to the plaintiff and $17,386.71 to the State. If the judgment is opened, both would be precluded from collecting those arrearages. Additionally, if the judgment is opened General Statutes § 46b-171(b) requires the State to refund all assigned child support already recouped. This may be as much as $13,000. Furthermore, the present $54 per week child support order would generate over $12,000 in additional child support until Krisshonn reaches majority. The plaintiff could possibly be liable for civil damages for any child support disbursed to her. All together about $50,000 is at issue. The financial stakes in the resolution of this motion are considerable. Commissioner of Social Services v. Fronterotta, 19 S.M.D. ___, 2004 Ct.Sup. 15957, 15958 (McCarthy, F.S.M., 2004); State v. Barr, 19 S.M.D ___, 2004 Ct.Sup. 13302, 13307 (McCarthy, F.S.M., 2004); Rosado v. Caceres, 17 S.M.D. ___, 2003 Ct.Sup. 5789, 5801 (Lifshitz, F.S.M., 2003).
General Statutes § 46b-171(b) provides: "Whenever the Superior Court or family support magistrate reopens a judgment of paternity entered pursuant to this section in which a person was found to be the father of a child who is or has been supported by the state and the court or family support magistrate finds that the person adjudicated the father is not the father of the child, the Department of Social Services shall refund to such person any money paid to the state by such person during the period such child was supported by the state."
In Valentine v. Bernadel, 21 S.M.D. ___ (Strada, F.S.M., March 23, 2007), the court opened a three-year-old paternity judgment but denied the defendant's request that "all money collected from him for support should be returned." The court held that the defendant was solely responsible for the delay in moving to open and that the plaintiff and the State were prejudiced by his inaction. It appears that the court applied the doctrine of laches to preclude refunding paid child support but not to the opening of the paternity judgment itself. During the final arguments in the present case, this court mentioned this outcome and asked the parties to include in their briefs an analysis of whether or not the same principle might apply in the present case. However, none of the parties accepted the challenge. Accordingly, the court will not consider that alternative.
A different variation of a middle course is found in Weaver v. Solone, 20 S.M.D. ___ (Wihbey, F.S.M., Sept. 7, 2006). The defendant's motion to open paternity was granted in part, to the effect that he was estopped from denying paternity, but was granted a modification to zero current support. This case was also not briefed or argued by any of the parties.
In the present case, there is no indication that the State did anything improper in the service of the paternity petition, obtaining the judgment and providing notice to the defendant of the judgment, or that its doings shocks the conscience in any way. Although the State's interest would not be sufficient to overcome the other factors analyzed herein had they been determined in favor of the defendant, in this situation, the court holds that the State's interest is a substantial factor inclined against opening the judgment.
The defendant did not raise duress or any procedural irregularities either in his motion or testimony at the hearing. For this reason, the court has not addressed either issue in this decision.
VIII CONCLUSION
The defendant failed to prove sufficient grounds to avoid the time limitation precluding opening of this thirteen-year-old paternity judgment. The amended motion to open the paternity judgment is denied. CT Page 21480