Opinion
No. FA 04-4003301
January 25, 2005
MEMORANDUM OF DECISION ON MOTION TO DISMISS
The plaintiff has appealed a family support magistrate's decision to vacate a registered child support order and the defendant has filed Motion to Dismiss the appeal.
FACTS
This appeal arises out of a September 9, 2004 ruling of the family support magistrate granting a motion filed by the defendant father, to vacate an Illinois child support order registered in Connecticut by the state of Indiana. On December 13, 1990, the defendant had acknowledged paternity of SG, the child, at a hearing in the state of Illinois and he was ordered to pay child support to the plaintiff. After the order entered, the plaintiff moved from the state of Illinois to the state of Indiana. Illinois ceased enforcement of the 1990 child support order on November 30, 1993 because the plaintiff was no longer a resident of the state. Notice was sent to the defendant and the plaintiff stating that the orders would be deleted from the Illinois child support system.
On April 14, 1997, representatives of the state of Indiana, on behalf of the plaintiff attempted to register the Illinois child support order in Connecticut pursuant tothe Uniform Interstate Family Support Act. Proper service on the defendant (and therefore registration) was not completed until November 16, 2001. On October 16, 2003, the defendant filed a motion to modify the registered orders due to a change in financial circumstances. On April 29, 2004, the defendant filed a brief in support of his motion to vacate the registration of the 1990 Illinois child support order, claiming that the registration was invalid. On September 9, 2004, the family support magistrate requested additional time beyond the 120 days to render its decision because documents which might have clarified the status of the support orders in Indiana and Illinois had not been received from those respective states. The state refused to extend beyond the 120 days. The state filed a timely motion to reconsider and reassign that was denied by the family court magistrate on September 16, 2004. The magistrate rendered a decision granting the defendant's motion to vacate.
On September 24, 2004, the state filed an appeal from the decision of the family support magistrate claiming that the decision contained errors of law. On October 6, 2004, the defendant filed a motion to dismiss the appeal due to lack of standing, arguing that there was no child support order for the state to register because the order had been vacated by Illinois. The defendant did not respond to the issues raised in the appeal. On October 27, 2004, the state filed a memorandum in opposition to the motion to dismiss.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003). "[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993). "The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." St. George v. Gordon, 264 Conn. 538, 544, 825 A.2d 90 (2003). "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 485, 815 A.2d 1188 (2003). "[S]tanding . . . implicates a court's subject matter jurisdiction, which may be raised at any point in judicial proceedings." Stamford Hospital v. Vega, 236 Conn. 646, 656, 674 A.2d 821 (1996).
The defendant moves to dismiss the state's appeal, arguing that there have been no orders for child support against the defendant and that Connecticut's attorney general and support enforcement agency lack standing in this action. The defendant contends further that the plaintiff has never appeared in this case. The state, on behalf of the plaintiff, argues that it does have standing to represent the plaintiff pursuant to statute, specifically under General Statutes §§ 46b-212 through 46b-213v, inclusive, known as the Uniform Interstate Family Support Act (UIFSA). The state also asserts that there is indeed a child support order against the defendant and that the order was properly registered by the state of Indiana in Connecticut in 2001. Finally, the state contends that, pursuant to the UIFSA, the plaintiff is not required to personally appear in this action.
"Practice Book § 10-31(a) provides in relevant part: [The] motion [to dismiss] shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346 n. 10, 766 A.2d 400 (2001). The defendant did not submit a separate memorandum in support of his motion to dismiss. Rather, he cited law when articulating the grounds on the face of his motion. Because the father has not submitted a supporting memorandum, the motion is legally insufficient. The grounds relied upon, however, implicate subject matter jurisdiction. "[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004). The court must consider, therefore, the issue of subject matter jurisdiction despite the lack of a memorandum in support of the motion.
The UIFSA has been adopted by all the states to facilitate the consistent and efficient interstate establishment, enforcement and modification of child support orders. See Proceedings of the National Conference of Commissioners on Uniform State Laws, Uniform Interstate Family Support Act, (August 10-17, 2001) pp. 2-6. One of the goals of the act is to recognize that only one valid support order may be effective at any one time. Id., 3-4. Section 46b-212j(a) provides that: "If a proceeding is brought under sections 46b-212 to 46b-213v, inclusive, and only one tribunal has issued a child support order, the order of that tribunal controls and shall be recognized."
The defendant asserts that under the holding in Blumenthal v. Barhes, supra, 261 Conn. 434, the attorney general and support enforcement agency lack standing in a civil litigation. In Blumenthal, however, the court stated that "the issue before us is whether the attorney general has standing under common law to bring an action for breach of fiduciary duties by officers of a not-for-profit organization in order to remedy the misappropriation of the organization's non-charitable receipts." Id., 441. However, the issue in the instant case is whether the attorney general has standing pursuant to statute, not common law. General Statutes § 46b-212t specifically states that "[t]he Attorney General shall provide necessary legal services on behalf of the support enforcement agency in providing services to a petitioner under sections 46b-212 to 46b-213v, inclusive." General Statutes § 46b-212a(21) defines the support enforcement agency as "a public official or agency authorized to seek: (A) Enforcement of support orders or laws relating to the duty of support; (B) establishment or modification of child support; (C) determination of paternity; or (D) the location of the obligors or their assets."
In the instant case, the attorney general is providing necessary legal services to the support enforcement agency as they jointly seek to enforce a registered child support order. As such, this court can only conclude that the attorney general and the support enforcement agency have standing to appear and plead in this action.
The defendant asserts that the plaintiff has failed to appear or plead in this action. General Statutes § 46b-213a(a) states that "[t]he physical presence of the petitioner in a responding tribunal of this state is not required for the establishment, enforcement or modification of a support order or the rendition of a judgment determining paternity." Since the plaintiff is seeking to have a registered order enforced, her presence is not required under that statute. Therefore, the plaintiff is not required to attend any proceedings on these issues in the state of Connecticut. Additionally, inasmuch as the state has standing to plead on the plaintiff's behalf, valid pleadings have been submitted. Because the state has standing to plead in this action and the plaintiff was not required to personally appear, the defendant's motion to dismiss be denied.
With respect to the magistrate's decision in this case, it is clear to this court that he was placed in the untenable position of having to render a decision with an incomplete record. Therefore, this court orders that the case be remanded for reassignment and that any information available through inquiry made by the family court magistrate or other means vis a vis the status of the Illinois and Indiana child support orders be provided to the reviewing magistrate.
Prestley, J.