Opinion
HHDFA134067081S
05-02-2016
Erica D. Young v. Eric J. Risley
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Michael A. Albis, J.
BACKGROUND
The above custody action was filed on April 9, 2013 by the plaintiff mother against the defendant father regarding their minor child, Damian, DOB 4/8/2011. The relief sought by the application included orders for joint legal custody, a parenting responsibility plan, and child support.
Final judgment in accordance with a written agreement of the parties was entered on January 16, 2014. The Assistant Attorney General appeared in the case to represent the interest of the State of Connecticut but was not a signatory to the agreement. The agreement which was adopted as the judgment included, inter alia, provisions for the parents to have joint legal custody of the child and a parenting plan whereby they would have substantially equal parenting time.
In addition, the agreement stated that, " The parties agree that neither party shall pay child support to the other based upon the shared parenting arrangement." The agreement provided for the allocation between the parties of responsibility for child care and unreimbursed medical expenses. It also included a provision, similar to a proposed order requested by the State of Connecticut, obligating each parent to provide medical insurance for the child if and when it became available at a reasonable cost.
On December 8, 2015, the State of Connecticut, acting by its Commissioner of Social Services, filed a support petition in the custody action, seeking an order of periodic child support payable by the defendant father. The state's basis for the petition is that it began to provide cash assistance under the temporary family assistance program to the plaintiff mother several months after the final judgment was entered in the custody matter, and that it is now by statute the assignee of the mother's right to seek support from the father for the period of such assistance.
Because it was filed in a pre-existing case, the court file sometimes refers to the support petition as a " Motion for Support, " a distinction which has no bearing on the issues decided herein.
General Statutes § 17b-77(a).
On January 26, 2016, the Family Support Magistrate Court (Ferguson, FSM) dismissed the State's support petition. It is clear from the record, and not disputed by the state, that the magistrate dismissed the support petition because of his conclusion that pertinent orders had been previously entered in the custody action, and that the proper method for the state to seek a new support order was to file a motion for modification of those orders rather than a new support petition.
The state has appealed the decision of the family support magistrate (hereinafter " magistrate") pursuant to General Statutes § 46b-231(n), within the time period allowed by that statute. The state's position is that under the circumstances of this case it has the option either to file a motion to modify the prior orders or to institute a support petition. Therefore, the state claims, it was an error of law for the magistrate to dismiss the support petition.
STANDARD OF REVIEW
This court's review of the decision of the magistrate is governed by General Statutes § 46b-231(n), where the applicable standard of review is set forth in the following subsection:
(7) The Superior Court may affirm the decision of the family support magistrate or remand the case for further proceedings. The Superior Court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the decision of the family support magistrate is: (A) In violation of constitutional or statutory provisions; (B) in excess of the statutory authority of the family support magistrate; (C) made upon unlawful procedure; (D) affected by other error of law; (E) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
The court has considered the state's appeal in light of the applicable statute. It has reviewed the record, including the transcript of the January 26, 2016 proceedings in the family support magistrate court. It has considered the oral arguments of the state presented at this court's April 26, 2016, hearing on the appeal.
The state, by its Assistant Attorney General, was the only party to attend the hearing.
DISCUSSION
The appeal involves a narrow issue of law. Under the circumstances of this case, is the state entitled to file a new petition for child support against the defendant, or is it limited to filing a motion to modify the order of January 16, 2014, that neither party shall pay child support?
The distinction between the two courses of action has two potential practical impacts. The first concerns retroactivity. In a new support petition, the state is entitled to seek an order of child support against the father that is retroactive to the date it began to provide cash assistance for the benefit of the child, up to a maximum of three years. But if the state's only recourse is a motion to modify, the maximum period of retroactivity would begin on the date of service of the motion on the defendant father.
General Statutes § 17b-745(a)(5). The State indicated during oral argument that in the present case such assistance had begun in October 2014.
General Statutes § 46b-86(a).
Second, if the state must file a motion to modify the orders of January 16, 2014, it bears the burden of proving:
. . . a substantial change in the circumstances of either party or . . . that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate.
General Statutes § 46b-86(a).
The state argues that because the judgment of January 16, 2014 did not require either party to pay periodic child support, there is no currently effective child support order giving it the option to initiate a support petition at this time. No Connecticut appellate authority was cited or found on this issue, but the state cites two Superior Court cases it considers persuasive.
In Barnes v. Shippy, Superior Court, judicial district of Hartford, Docket No. FA10-4050416-S, (October 18, 2010, Adelman, J.), the court confronted the issue of whether a support petition filed in the family support magistrate court in 2010 was properly dismissed because of a previously filed 2006 support petition involving the same parties and the same child. The family support magistrate had dismissed the 2010 petition filed by the state on behalf of the mother, ruling that the only recourse was to file a motion to modify the judgment in the 2006 action. The court reversed the magistrate, ruling that the 2006 action did not preclude the 2010 petition because current child support had neither been requested nor ordered in the 2006 action. In fact, when the 2006 petition was filed the family was intact, and the only relief sought was a finding of an arrearage for a prior period when the parties had been separated.
The second case relied upon by the state, which is factually more similar to the present case, is Torres v. Torres, Superior Court, judicial district of New Haven, Docket No. FA-06-4021378-S (September 7, 2011, Conway, J.) . In that case, a prior judgment of dissolution of the marriage of the parties had entered in accordance with their agreement. The judgment provided for the parties to have joint legal custody of their three minor children, with the mother to have primary physical custody of the child (Ismael) who became the subject of the subsequent child support proceedings. The agreement as approved and ordered by the court included the following provision: " That there be no current support order at this time." No finding was made by the court as to a presumptive support amount under the child support guidelines or any deviation therefrom. (The court did, as in the present case, enter orders allocating responsibility for unreimbursed medical expenses.)
About fifteen months after the entry of the dissolution judgment, the state's Commissioner of Social Services, on behalf of the paternal grandmother of Ismael, filed a petition for support against the child's mother in the family support magistrate court. The magistrate entered an order of weekly child support payable by the mother, which resulted in a subsequent motion for contempt filed in the family support magistrate court against the mother alleging an arrearage in the support so ordered. The mother filed a motion to dismiss the motion for contempt on the grounds that the support order had been entered improperly, arguing that the state had not been entitled to file a support petition under the circumstances of the case. Rather, the mother argued, the state was limited to filing a motion to modify the order in the prior superior court dissolution action. The family support magistrate court partially granted the motion to dismiss, ruling that the superior court had continuing exclusive jurisdiction on the issue of child support due to the orders in the dissolution case, and that the establishment of an arrearage due from the mother upon the state's support petition constituted " an improper retroactive modification of the support petition."
It is unclear when the paternal grandmother began to care for Ismael.
The state appealed the dismissal to the superior court, which reversed the magistrate's decision. The superior court concluded that the absence of a child support order in the dissolution action was not the equivalent of " a child support order for zero amount." It further concluded that the orders concerning health care expenses were " not synonymous with a weekly monetary child support order." The court also expressed concern that the party on whose behalf support was sought, i.e. the paternal grandmother, was not a party to the dissolution action and was not assured of obtaining intervenor status in that case for purposes of a motion for modification of child support.
Under the circumstances of the Torres case, the superior court held:
The absence of a weekly monetary child support order or a deviation from a presumptive weekly monetary child support order in the dissolution file permitted the state, as the recipient of paternal grandmother's transferred rights to child support (see C.G.S. § 17b-77), to file a support petition in the family support court.
In a footnote, the court noted that if " the dissolution file had reflected a presumptive child support finding and a deviation from such a finding, this court would agree the proper course of action would be a motion to modify said order." In one sense this observation of the court is dicta, insofar as it addressed a fact situation not before the court. Nevertheless, it is clear that the absence of a presumptive support finding and deviation in the dissolution matter was expressly cited as a reason the state was entitled to file a support petition.
CONCLUSIONS
To determine whether the family support magistrate in the present case properly dismissed the state's support petition, two principles of law must be considered. The first is the " prior pending action" doctrine. " The policy behind the prior pending action doctrine is to prevent unnecessary litigation that places a burden on our state's already crowded court dockets . . ." Selimoglu v. Phimvongsa, 119 Conn.App. 645, 649-50, 989 A.2d 121 (2010).
The pendency of a prior action between the same parties, in the same jurisdiction and to the same end is grounds for dismissal. Southland Corporation v. Vernon, 1 Conn.App. 439, 451, 473 A.2d 318 (1984). This rule, which is not one of unbending rigor or universal application; id., 452; is not a rule of subject matter jurisdiction but of justice and equity, generally applicable and always where the two suits are virtually alike. Henry F. Raab Connecticut, Inc. v. J.W. Fisher Co., 183 Conn. 108, 112, 438 A.2d 834 (1981). When, however, the purposes of the two actions and the issues to be determined by them are different, the rule does not apply. Id., 183 Conn. 113-14, 438 A.2d 834.Nielsen v. Nielsen, 3 Conn.App. 679, 682, 491 A.2d 1112 (1985).
The second principle, more specifically applicable to the present case, is embodied in the previously quoted portion of General Statutes § 46b-86(a). The intent of the statute is that a child support order, once entered, shall remain in effect unless and until it has been shown that a substantial change in the circumstances of the parties has occurred, or that the original order deviated substantially from the child support guidelines without the findings necessary to support such a deviation.
The first principle is intended to prevent multiple legal actions about the same parties and issues. The second is intended to preserve the finality of a child support Order by limiting the circumstances in which it may be changed.
The two cases cited by the state represent the well-reasoned implementation of these principles. In Barnes, the superior court concluded that not only was there no child support order entered in the prior action, but also that no such order had been sought or would have been appropriate under the circumstances existing at the time. In Torres, the superior court similarly found that no child support order had been entered in the first action, and that the party on whose behalf support was sought in the later action was not even a party to the first. By recognizing the propriety of the later support actions in Barnes and Torres, the courts were not permitting the re-litigation of issues that had already been considered and decided by orders in prior actions. The courts were allowing the use of new support petitions to litigate child support issues that had not been previously considered.
The present case differs from both Barnes and Torres . Here, the new support petition involves the identical parties who were involved in the prior custody proceeding. Unlike Barnes or Torres, the prior proceeding in the present case included the consideration of weekly child support in light of the child support guidelines. The file reflects that on the date of judgment, two different completed " Worksheets for the Connecticut Child Support and Arrearage Guidelines" were filed with the court. The first showed that if the mother were the primary physical custodian of the child, the father's presumptive weekly support obligation would be zero (based on his lack of income). The second showed that if the father were the primary physical custodian of the child, the mother's presumptive weekly support obligation would be $31.
The parenting plan embodied in the parties' agreement, approved and made the judgment of the court, qualified as a " shared physical custody" arrangement under the applicable Child Support and Arrearage Guidelines. Shared physical custody is a circumstance which may warrant deviation from the presumptive weekly child support amount. The agreement of the parties expressly stated that neither would pay child support to the other " based upon the shared parenting arrangement, " a clear reference to the shared physical custody parenting plan.
Regulations of Connecticut State Agencies § 46b-215a-1(22), as in effect January 16, 2014.
Regulations of Connecticut State Agencies § 46b-215a-3(6), as in effect January 16, 2014.
It is arguable whether the order of zero child support payable by either parent represented a substantial deviation from the guidelines in the first place, given that the presumptive amounts reflected in the guideline worksheets were either fairly nominal or zero, depending on which worksheet was applied.
After receiving the child support guideline worksheets showing the parties' presumptive weekly child support obligations, and reviewing the agreement which called for a shared physical custody arrangement with no child support payable by either parent, the court entered judgment in accordance with the agreement. This was not a case like Barnes, in which no child support order was sought, or Torres, in which the issue of child support was not considered in light of the child support guidelines and no support order was entered. Rather, it was a case in which, after consideration of the child support guidelines and the parties' shared physical custody arrangement, it was agreed by the parties and approved by the court that no child support should be paid by either parent to the other. To paraphrase the court in Barnes, the present case is not characterized by the absence of a child support order; it is one that includes " a child support order for zero amount."
Under such circumstances, the parties were entitled to expect that the child support order would remain unchanged except in accordance with the modification provisions of General Statutes § 46b-86(a). The legal effect of the order is the same as if, for example, the judgment had called for one parent to pay a very nominal amount of child support to the other, instead of each paying zero. It was not erroneous for the magistrate to dismiss the support petition and thereby require the state to pursue any new order of child support by filing a motion for modification in the pre-existing custody file.
For the foregoing reasons, this court concludes that the decision of the family support magistrate was not affected by error of law or otherwise improper under the standards set forth in General Statutes § 46b-231(n)(7).
ORDER
The decision of the Family Court Magistrate is hereby affirmed and the appeal hereby denied.
SO ORDERED.