Opinion
No. FA 05 4004953
June 20, 2007
MEMORANDUM OF DECISION RE APPEAL FROM THE FAMILY SUPPORT MAGISTRATE'S ORDER #107
I BACKGROUND AND FACTS
The plaintiff in this action is the Commissioner of Social Services for Pamela Chapman, who received state assistance for the child of the defendant mother, Quadria Bailey. On December 7, 2005, the plaintiff filed a petition for a support order with the Family Support Magistrate Division, seeking an order for financial and medical support and maintenance of the minor child, Jawon Gardner, and payment to the state for disbursement of funds.
At a hearing on January 11, 2006, before Magistrate Sosnoff-Baird, neither of the parties appeared. The magistrate, nonetheless, made a finding that the defendant had been served at the place of abode, ordered that the defendant be given notice by letter with the new guidelines attached to the order and continued the case until March 1, 2006. On March 1, Family Support Magistrate Wihbey made a finding that the defendant was obligated for the support of her minor child, Jawon Gardner, in the amount of $50 per week and was in arrears in the amount of $1,500 from August 26, 2005, through March 1, 2006. Service of notice of the income withholding order was attempted at the defendant's last known address on March 8, 2006. Service of process of the magistrate's order was returned unclaimed and was entered into the record as such on March 17, 2006.
On February 13, 2007, the defendant filed an appearance and a motion for modification on a form provided by the court. On that form, however, she replaced the words "for modification" with "to vacate child support," checked off a box stating that the circumstances concerning this case have changed substantially and wrote "because I have always had my son with me and they took my income tax money for this is reason." She also checked off a box to vacate the amount of child support she was to pay. A hearing was scheduled for March 14, 2007. A return of service was filed showing that Chapman had been served with the motion "for modification" on February 15, 2007.
In the transcript of the hearing on April 25, 2007, the defendant testified that her son was living with her at all times, except for two months, during the summer of 2005.
On March 14, 2007, Family Support Magistrate Lifshitz opened and vacated the support order and continued the case for a full hearing on the plaintiff's original support petition, filed on December 7, 2005, to April 25, 2007. On April 25, Magistrate Lifshitz appointed Attorney Joseph Prokop for Omari Gardner, the defendant in a case under file number FA 00 0273363, Jawon's biological father, who had acknowledged paternity and who is currently in the army. The magistrate also appointed Attorney Barbara Morelli as guardian ad litem (GAL) for Jawon Gardner (9/5/99) for both files. The GAL was ordered to implead the mother and to investigate. The court also ordered a transcript of the hearing and continued the case for a full hearing to July 18, 2007.
The court noted that, although it opened and vacated the prior order, it would provide both sides with a full hearing, de novo, to determine who was to receive support for the child, who was to contribute to his support during the time the minor child was not living with the defendant, and who was to pay support to the defendant from the time the minor child resumed living with her. Finally, the court indicated that the state, the plaintiff, the defendant, Omari Gardner and the minor child, through Attorney Morelli, were all entitled to a hearing on the merits of the support order.
On March 28, 2007, the state filed an appeal pursuant to General Statutes § 46b-231(n) and Practice Book § 25-66 from the family support magistrate's March 14, 2007 order on the following grounds: The state claims it is aggrieved by the orders entered because it was never served with Bailey's motion "for modification" and the magistrate vacated prior findings of the court without providing the state an opportunity to cross examine the defendant. The state then filed an amended petition of appeal on April 30, 2007, which now includes the minor child's attorney and guardian ad litem. The amended appeal also includes the orders entered by the magistrate on March 14, and April 25, 2007. It is based on the magistrate's retroactive modification of the support orders of the court entered on March 1, 2006, the state's pending appeal of the March 14 order dated March 26, 2007, and the magistrate's continuance of the hearing on April 25, 2007.
For reasons set forth herein, the appeal is denied.
II DISCUSSION
"It is well established that the opening of a prior judgment is not a final appealable judgment when a substitute judgment is contemplated but has not yet been rendered . . . [The Connecticut Supreme Court] however, has recognized an exception to this rule where the appeal challenges the power of the court to act to set aside the judgment." (Citations omitted; internal quotation marks omitted.) Pritchard v. Pritchard, 281 Conn. 262, 271, 914 A.2d 1025 (2007). The issue before the court in this case is whether the orders of March 14, 2007, and April 25, 2007, are final appealable orders. "The lack of [a] final judgment is a threshold question that implicates the subject matter jurisdiction of [the] court." (Internal quotation marks omitted.) Dacey v. Commission on Human Rights Opportunities, 41 Conn.App. 1, 4, 673 A.2d 1177 (1996). A final judgment is one "(1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them." (Internal quotation marks omitted.) Metropolitan Life Ins. Co. v. Aetna Casualty Surety Co., 249 Conn. 36, 46, 730 A.2d 51 (1999).In support of its argument that both orders are a final judgment, the state relies on the recent Supreme Court case of Pritchard v. Pritchard, in which the court granted certification on the issue of whether the appellate court properly dismissed the state's appeal for lack of a final judgment. In Pritchard, the Supreme Court summarized the extensive procedural history of that case, as follows: "The plaintiff, Mary Ellen Pritchard, and the defendant, James L. Pritchard, were married on May 5, 1979. Two children were born of the marriage. On June 11, 1996, the parties were divorced. Pursuant to the judgment of dissolution, the defendant was ordered to pay, inter alia, child support in the amount of $180 per week and alimony in the amount of $100 per week. An alimony arrearage of $7,549.80 was also found by the court, and the defendant told the court that he would continue to refuse to pay the delinquent alimony. In response, certain bank orders were issued. Nevertheless, on November 1, 1996, pursuant to a motion for contempt, the court found the defendant to be in arrears $3,600 in child support, $2,000 in alimony and $303 in unreimbursed medical expenses. Finding the defendant in contempt, the court issued additional bank orders, transferring certain moneys to the plaintiff. Following the transfer of the bank funds to the plaintiff, which did not clear up the arrearage entirely, the court appointed an attorney for the defendant on March 31, 1997, finding that the defendant was in jeopardy of incarceration for his failure to comply with the orders of the court.
"In response to another motion for contempt filed by the plaintiff, the court, Axelrod, J., on November 25, 1997, denied the motion because it concluded that the plaintiff, herself, had failed to comply with the orders of the court regarding the transfer of certain Florida property to the defendant and that her delay had caused the defendant to lose that portion of the property that the plaintiff had been ordered to transfer to him. The court did find, however, that the defendant owed an arrearage of $13,107.95, consisting of $1,700 in alimony, $11,160 in child support and $247.95 in unreimbursed medical expenses. The court also stated that, pursuant to the terms of the judgment of dissolution, alimony had terminated on October 10, 1996, and the court ordered the payment on the arrearage to be $35 per week, with an increase as each child reached majority. On September 3, 1998, the plaintiff filed another motion for contempt, which was heard on September 8, 1998. After the defendant failed to appear for the hearing on the contempt motion, the court found that the arrearage was $27,608.70, and it issued a capias, finding the defendant in contempt.
"On July 3, 2000, a new capias was issued after it was discovered that the original had been lost. On September 12, 2002, the defendant was arrested and bond was set at $30,000. After setting the bond, the court, Rodriguez, J., referred the matter to the family support magistrate. On September 18, 2002, the family support magistrate, John P. McCarthy, found the defendant in contempt and set a purge figure of $65,588.70, the amount of the support arrearage. The defendant continued to be brought before the court on a monthly basis for review of the contempt finding. On April 2, 2003, the magistrate increased the defendant's purge amount to $70,628.70 and also set a bond of $10,000.
"On April 23, 2003, the defendant filed a motion for contempt against the plaintiff, alleging that her failure to transfer the Florida property in a timely matter amounted to a fraudulent conveyance. On July 30, 2003, during one of the monthly reviews of the defendant's incarceration on the contempt finding, the magistrate found that property owned by the defendant in Bethel had been fraudulently transferred to the defendant's companion, Suzanne Spellman, and the magistrate ordered that the defendant could be released if Spellman placed a mortgage on the property to secure a lien in the name of the plaintiff and then sold the property and paid the plaintiff. On November 26, 2003, the magistrate lowered the defendant's purge amount to zero and set a bond of $30,000. On December 4, 2003, the state filed a motion for reconveyance of the Bethel property with the Superior Court. On December 15, 2003, Spellman and the defendant appeared before the Superior Court for a hearing on the motion for reconveyance. On January 7, 2004, the magistrate lowered the defendant's bond to $5,000, and set another review date for the following week, January 14, 2004.
"On January 12, 2004, after a hearing on the state's motion for reconveyance, the court Shay, J., ordered the defendant released from custody and vacated [the finding of an arrearage] the capias, the bond and all prior findings of contempt. The court also suspended the payment of child support and continued the matter until April 19, 2004. The state filed an appeal from the January 12 [2004] judgment . . . Subsequently, on April 26, 2004, the trial court found that the defendant had fraudulently transferred the Bethel property to [his companion], but stayed enforcement until it could recalculate the amount of arrearage.
"On August 24, 2004, the trial court issued a memorandum of decision in which it reiterated its January 12, 2004 orders, recalculated the amount of arrearage and ordered the defendant to make certain payments . . . The court explained that it had vacated the September 8, 2002 contempt order because `the original court order did not comport with the fundamentals of due process . . .' With respect to its ruling vacating the arrearage order, the court recognized that the defendant had never filed a motion for modification. It concluded, however, that it was `equitable and appropriate' to treat the defendant's April 23, 2003 motion for contempt against the plaintiff for her failure to comply with orders concerning the transfer of the Florida properties as a motion to reopen the September 8, 1998 judgment, because the defendant `consistently contended that the loss of the Florida real estate was somehow tied to his child support obligation . . .' Accordingly, the court concluded that it was authorized to vacate the finding of contempt and to modify the existing child support orders." (Citations omitted.) Pritchard v. Pritchard, supra, 281 Conn. 264-68.
Before the Appellate Court, the state claimed "that the trial court lacked authority under General Statutes §§ 46b-231(q) and 46b-86 to vacate the prior orders issued by the Superior Court [on January 12, 2004 and April 19, 2004] and the family support magistrate when the defendant had not appealed from or otherwise challenged those orders." Id., 267. "The state then filed an amended appeal from that decision, indicating that the original judgment was the one rendered on January 12, 2004." Id., 268.
The Appellate Court dismissed the state's appeal for lack of a final judgment. Id. The Appellate Court concluded "that `the January [12, 2004] rulings did not terminate a separate and distinct proceeding or so conclude the rights of the parties that further proceedings could not affect them . . . and, therefore, did not constitute an appealable final judgment. The Appellate Court further concluded that the appeal from the January 12, 2004 ruling was moot in light of the trial court's subsequent ruling on August 24, 2004, because `[a] reversal of the January 12, 2004 judgment would have no effect on the August 24, 2004 judgment . . .' The Appellate Court also concluded that the state had failed to appeal from the later judgment . . ." (Citations omitted.) Id., 269.
The Supreme Court reversed and concluded "that the January 12, 2004 ruling constituted a final judgment for purposes of appeal and that the state complied with the procedures for amending that appeal to include the August 24, 2004 ruling." Id., 270. The Supreme Court reiterated the well-established rule that "the opening of a prior judgment is not a final appealable judgment when a substitute judgment is contemplated but has not yet been rendered . . . [except] where the appeal challenges the power of the court to act to set aside the judgment." (Citations omitted; internal quotation marks omitted.) Id., 271. Nonetheless, the Supreme Court determined that the trial court's ruling in Pritchard, vacating all of the prior orders of the Superior Court and the family support magistrate, was a final judgment for purposes of appeal under Solomon v. Keiser, 212 Conn. 741, 745-46, 562 A.2d 524 (1989) because it was unauthorized. Id., 270-72. The Supreme Court further concluded that even if there was no claim that the trial court's actions were unauthorized, its rulings and order to immediately release the defendant from prison would constitute a final appealable judgment under the second prong of State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), which addresses whether the rights of the parties have been so concluded that further proceedings could not affect them. Pritchard v. Pritchard, supra, 281 Conn. 269 272.
The Supreme Court explained that the trial court's order vacating the previous order of contempt and ordering the release of the defendant shows "that the court intended to void the contempt order and related orders ab initio. The court gave no indication that it intended merely to place the parties in the situation that they had been in after the plaintiff had filed her original motion for contempt, but before the trial court had granted it. Instead, the court clearly intended to place the parties in the position that they would have been in if the original motion had been denied. Thus, this situation is not like the cases in which the court vacated a prior judgment but had not yet rendered a substitute judgment, because no substitute judgment was contemplated. Rather, the trial court's action immediately and permanently terminated the established rights of the state in the orders so that no further proceeding could affect them." Pritchard v. Pritchard, supra, 281 Conn. 272-73.
To determine whether the rulings in the present case are similar to those in Pritchard, and, consequently, final appealable judgments as advocated by the state, the court must examine the context in which the March 14, and April 25, 2007 rulings were made. The question before the family support magistrate on March 14, 2007, was the defendant's motion to open and vacate the March 1, 2006 support order, requiring her to pay support and arrearage for her minor son, Jawon Gardner, during his "temporary custody" with the plaintiff. During a colloquy with the court, the defendant stated that she did not receive notice of the support order filed on March 1, 2006, to which the state replied that the evidence in the file showed that the defendant had received notice of the initial support petition, filed on December 2, 2005, and which the magistrate at the hearing on the petition on January 11, 2006, found before continuing the hearing to March 1, 2006. (Transcript March 14, 2007, pp. 5-6.) The state then explained that on March 1, 2006, the magistrate made a finding that the defendant was obligated for support and issued a support order. (Transcript March 14, 2007, p. 5.) Through the court's further discussion with the defendant, she revealed that she had a support order from Jawon's father, Omari Gardner, which he had been paying until sometime in 2005. (Transcript March 14, 2007, pp. 3-4.) Since the defendant was claiming that she had no notice of the March 1, 2006 support order and the notice was returned unclaimed, the court stated it would grant her motion. (Transcript March 14, 2007, p. 7.)
Family Support Magistrate Lifshitz acknowledged that the motion on the calendar was "printing as a motion to modify" but that "it is actually a motion to open and vacate and the Clerk correctly noted that on the docket." (Transcript March 14, 2007, p. 2.) The magistrate explained that since there were no forms available for a motion to open, the parties were using the motion to modify forms instead. (Transcript March 14, 2007, p. 2.)
At the hearing, it was revealed that the plaintiff and defendant went to the department of social services requesting state assistance for Jawon Gardner, who would be living with the plaintiff in the summer of 2005, because the defendant had no place to live and could not take care of him. (Transcript March 14, 2007, pp. 5 9.) The officer of the Family Support Enforcement Division testified that, because the department of social services provided assistance for the support of Jawon, it brought the present action for a support order against the defendant. (Transcript March 14, 2007, p. 5.)
To establish whether the state had grounds to proceed on the original petition, the court permitted the state to question Chapman and the defendant under oath regarding the facts of the case and to ask the defendant about the contents of her motion. (Transcript March 14, 2007, pp. 7-8.) In response to Chapman's testimony that she had been the custodian of the child and was receiving state support for him, the court stated again that it was going to grant the defendant's motion to vacate and provide a full hearing, which was then scheduled for April 25 by agreement. (Transcript March 14, 2007, p. 10.)
Following the state's response that it had not had the opportunity to present its case yet, the court reminded the state that a full hearing on the original petition was already scheduled. (Transcript March 14, 2007, pp. 10-14.) The court reiterated that because the defendant lacked notice of the judgment of support against her and timely filed a motion to open, the court would provide the parties with a full hearing on the petition. (Transcript March 14, 2007, p. 11.) The state then explained that it was not requesting a full hearing on the petition but would like to inquire of the defendant whether she received some form of notice; to which, the court again responded that the question had been asked of her already and her answer was "no," which satisfied the court that she did not receive the requisite notice. (Transcript March 14, 2007, pp. 11-12.) The court also stated that it was concerned that there was an order for this child in another case, whose file it would need to resolve all the issues. (Transcript March 14, 2007, pp. 12-13.)
At the hearing on April 25, 2007, the state informed Family Support Magistrate Lifshitz that it had filed an appeal from the March 14, 2007 ruling and requested "that the court not go forward until the conclusion of the appeal." (Transcript April 25, 2007, p. 1.) The court, however, proceeded with the hearing, after clarification by the GAL that in another proceeding, entitled Potts v. Gardner, an order existed in which it was found that the father was obligated to pay support for Jawon to the grandmother of the defendant, with whom the defendant lived during her pregnancy. (Transcript April 25, 2007, pp. 10-12.)
Based on the Pritchard case, the state argued that the March 14, 2007 ruling was a final appealable judgment. (Transcript April 25, 2007, pp. 6-10.) The court disagreed and stated that it was only putting the case back to "status quo ante," which meant that there was no final order, and, in addition, the case is dissimilar to Pritchard. (Transcript April 25, 2007, p. 9.)
The defendant testified that she was receiving assistance from the state which, in turn, was receiving some money from Jawon's father, who was in the army in Texas. (Transcript April 25, 2007, p. 14.) Following a discussion with the GAL regarding the plaintiff's temporary custody of Jawon, the court stated that, first, it had to determine who should be receiving support for the minor child; second, whether there was a basis to go forward on the original petition, which presently was before the court on a de novo review; third, what was the plaintiff's interest; and fourth, the substantive merits as to the custody of the minor. (Transcript April 25, 2007, pp. 17-18.)
To reach a decision about these four issues and to have all proper parties before the court, the magistrate stated that a court date for a hearing needed to be set. (Transcript April 25, 2007, p. 19.) The court further informed the defendant of the appeal against her and her right to participate in the appeals process. (Transcript April 25, 2007, p. 22.) In response to the state's concern that the court vacated the original support order in addition to opening the judgment, the court stated that it would provide a de novo hearing on the matter. The court scheduled a full hearing of all the issues for July 18, 2007. (Transcript April 25, 2007, p. 28.)
The rulings in the present case are distinguishable from the Supreme Court case of Pritchard v. Pritchard and, therefore, they are not final appealable judgments. On March 14, 2007, the court granted the defendant's motion to open and vacate the support orders and rescheduled a hearing on the support petition for April 25, 2007. The court declared: "If the state thinks that it has grounds to proceed on the original petition I am not dismissing the case I am just vacating the judgment that puts it back to square one. You have a petition before the court and if you think that you have grounds to proceed on the original petition I will give you a date to be heard on it." (Transcript March 14, 2007, p. 7.) Three more times, the magistrate reiterated that it was providing the state with a full hearing on the petition on April 25, 2007. On April 25, 2007, in response to the state's query that the court not proceed until after its appeal of the March 14, 2007 ruling, the court emphatically pronounced that the prior ruling was not "a final judgment because it does, and I said this very clearly when we were here last time, that all it does is put the case in status quo ante; and that you need a decision on the petition in order to get a final order. And I don't think that is at all analogous to what happened in Pritchard." (Transcript April 25, 2007, p. 9.)
In order to resolve all of the issues at a subsequent hearing with all proper parties present, the magistrate reiterated: "I clearly said you have a full right to a de novo hearing on the matter. Of course, I vacated the orders. But it doesn't mean I am denying it; it means that I vacated it and put it back to square one. This is just status quo ante. You are just back to your original petition [which] is before the Court and you have a full right to a hearing on the merits; so does Ms. Chapman and now so does Jawon, through Attorney Morelli; and so does Ms. Bailey. All I am looking for is [to] put it in front of the Court substantively . . . But in any event, right now we are going forward on this, so my question would be when would everybody be ready . . ." (Transcript April 25, 2007, pp. 25-28.)
Unlike the court in Pritchard, Magistrate Lifshitz placed the parties here in the same situation as they had been after the plaintiff filed her original petition of support against the defendant on December 7, 2005, and before the petition was granted on March 1, 2006. Thus, the situation here is analogous to those cases in which the court opened and vacated a prior judgment but had not yet rendered a substitute judgment. Pritchard v. Pritchard, supra, 281 Conn. 271. The record shows that there was no intent by the magistrate to void ab initio the order of support. Instead, the court placed the case in the status it was when the petition was filed and before it was granted. Further, the opening and vacating of the judgment did not terminate the right of the state to a disbursement of its funds; rather, a further proceeding was scheduled that could address this right.
III CONCLUSION CT Page 10778
The magistrate's order to open and vacate judgment is not a final appealable judgment and therefore this court does not have subject matter jurisdiction. The appeal is dismissed.