Opinion
No. FA 92 0049874 S
June 14, 2004
MEMORANDUM OF DECISION
On February 17, 2004, the Family Support Magistrate granted the defendant's Motion to Modify in which the defendant sought a reduction in his child support order.
This matter comes before the court as an appeal by the plaintiff from said Magistrate's decision pursuant to General Statutes § 46b-231.
On June 8, 2004, the appeal was tried to the court. The plaintiff was represented by Attorney Kenneth A. Morey, Jr. The defendant appeared pro se.
In granting the defendant's Motion to Modify, the Magistrate reduced the defendant's child support order to zero pursuant to Number 03-258 of the 2003 Public Acts.
The plaintiff concedes that, since the defendant presented evidence that he is incarcerated and has an income of $0.00, the Magistrate was bound by P.A. 03-258 to reduce the defendant's child support order to $0.00. The plaintiff, however, makes two claims. Initially, the plaintiff claims that pursuant to case law and General Statutes § 46b-231(n)(7), constitutional challenges should not be raised before the Family Support Magistrate but may properly be raised in an appeal to the Superior Court. Secondly, and more importantly, the plaintiff claims that P.A. 03-258 "violates substantive rights and procedural due process under the Fourteenth amendment." (Plaintiff's Petition for Appeal § 6, ¶ (b).) Upon these grounds, the plaintiff requests that the court reverse the Magistrate's decision.
To begin with, the court agrees with the plaintiff's first contention that it was proper for her to raise her constitutional challenge on appeal to the Superior Court. General Statutes § CT Page 9287 46b-231(n)(7) provides in relevant part that "[t]he 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 . . . in violation of constitutional or statutory provisions." General Statutes § 46b-231(n)(7). "While [General Statutes § 46b-231] vests the family support magistrates with numerous powers and duties, no provision in the statute provides that a magistrate has the authority to rule on the constitutionality of a statute." Plemmons v. Newtown, Superior Court, judicial district of New London at Norwich, Docket No. FA 00 0557263 (Feb. 25, 2003, J. Swienton) ( 34 Conn. L. Rptr. 308). See also Sierra v. Lozada, 31 Conn. App. 114, 119, 623 A.2d 1045 (1993) (explaining that magistrates lack authority on certain matters and stating that a "family support magistrate does not have jurisdiction to decide contested claims"). Thus, the court holds that it was proper for the plaintiff to raise constitutional issues for the first time on appeal.
This court's standard of review of the Family Support Magistrate's findings is governed by General Statutes § 46b-431(n)(7) which provides in pertinent part: "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 plaintiff specifically challenges the constitutionality of the following provision: "Notwithstanding any provision of the general statutes, whenever a child support obligor is institutionalized or incarcerated, the Superior Court or a family support magistrate shall establish an initial order for current support, or modify an existing order for current support, upon proper motion, based upon the obligor's present income in accordance with the child support guidelines established pursuant to section 46b-215a of the general statutes." (Emphasis added.) Public Acts 2003, No. 03-258, § 4.
The plaintiff sets forth the following arguments. "[W]ith the advent of P.A. 03-258 there is a clear facial statement as to how the current support order of an incarcerated inmate should now be calculated. The public act has now limited discretion of the trial judge or magistrate, removing a full hearing on the facts, and any deviation in the best interest of the minor child. As applied P.A. 03-258 is no longer a rule or guideline or discretionary statute it serves as an adjudicatory order with no decisions to be made. Which denies the plaintiff a voice in the proceeding." (Plaintiff's Petition for Appeal § 6, ¶ (c).) "[T]he Plaintiff is denied any meaningful procedural due process." (Plaintiff's Petition for Appeal § 6, ¶ (d).) "The Plaintiff has substantive interest in property and liberty that she is deprived of for no compelling reason." (Plaintiff's Petition for Appeal § 6, ¶ (e).) "The plaintiff's liberty interest in this case that is denied due process is the right and duty to ensure that child support is provided for her minor child." (Plaintiff's Petition for Appeal § 6, ¶ (f).) Furthermore, the plaintiff claims a "fundamental interest in the integrity of the family structure"; cites several United States Supreme Court cases; and concludes that "[i]n light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of plaintiff in the integrity of the family structure." (Plaintiff's Petition for Appeal § 6, ¶ (g).)
For example, the plaintiff cites: Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438 (1944); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208 (1972); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526 (1972); Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549 (1978); and Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388 (1982).
"It is important, at the outset, to recognize that the challenge of any state statute on constitutional grounds imposes a difficult burden on the challenger . . . [W]e have consistently held that every statute is presumed to be constitutional and have required invalidity to be established beyond a reasonable doubt." (Citations omitted; internal quotation marks omitted.) Thalheim v. Greenwich, 256 Conn. 628, 647-48, 775 A.2d 947 (2001).
"It is well settled that, [i]n the absence of weighty countervailing circumstances, it is improvident for the court to invalidate a statute on its face . . . A judicial holding that a legislative [a]ct is unconstitutional is one of very grave concern. We ought not and will not, declare a statute to be unconstitutional unless our judgment is formed in the light of this rule of our law: It is our duty to approach the question with caution, examine it with infinite care, make every presumption and intendment in its favor, and sustain the [a]ct unless its invalidity is, in our judgment, beyond a reasonable doubt . . . Furthermore, outside the context of the first amendment, in order to challenge successfully the facial validity of a statute, [the challenging] party [must] demonstrate as a threshold matter that the statute may not be applied constitutionally to the facts of [her] case." (Citations omitted; internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 65-66, 824 A.2d 611 (2003).
Although not explicitly stated, the plaintiff appears to argue that P.A. 03-258 violates the separation of powers doctrine "by denying any judicial discretion and simply mandating an order." (Plaintiff's Petition for Appeal § 6, ¶ (b).) "To be unconstitutional in the context of the separation of powers provided for in article second of our state constitution [however] a statute must not only deal with subject matter which is within the judicial power, but it must operate in an area which lies exclusively under the control of the courts." (Internal quotation marks omitted.) DiBerardino v. DiBerardino, 213 Conn. 373, 384, 568 A.2d 431 (1990). Legislation concerning child support guidelines is not an area that lies under judicial control. Thus, there is no merit to the plaintiff's separation of powers challenge to P.A. 03-258.
See e.g. Marrocco v. Giardino, 255 Conn. 617, 618 n. 1, 767 A.2d 720 (2001) ("The guidelines are promulgated by the commission for child support guidelines (commission), which was established by the legislature pursuant to General Statutes §§ 46b-215a").
The plaintiff also claims that, for no compelling reason, she has been deprived of her substantive interests in property. The plaintiff specifically contends that "on the basis of state law [she] plainly has legitimate claims of entitlement to support." (Plaintiff's Petition for Appeal § 6, ¶ (e).) "Property is a broad and majestic term and a great constitutional concept purposely left to gather meaning from experience . . . Property interests are more than abstract needs, desires or unilateral expectations of benefits or privileges. Rather, a person must have a legitimate claim of entitlement to a benefit or privilege to have a property interest in that benefit . . . Property interests are not created by the Constitution, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . . The hallmark of property . . . is an individual entitlement grounded in state law, which cannot be removed except for cause . . . A person has an entitlement in a benefit or privilege if there are rules or mutually explicit understandings that support his claim of entitlement to the benefit . . . that he may invoke at a hearing." (Citations omitted; internal quotation marks omitted.) Connecticut Education Ass'n v. Tirozzi, 210 Conn. 286, 294, 554 A.2d 1065 (1989).
"[L]egislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations . . . Furthermore, [e]ven with respect to vested property rights, a legislature generally has the power to impose new regulatory constraints on the way in which those rights are used, or to condition their continued retention on performance of certain affirmative duties. As long as the constraint or duty imposed is a reasonable restriction designed to further legitimate legislative objectives, the legislature acts within its powers in imposing such new constraints or duties." (Citations omitted; internal quotation marks omitted.) Connecticut Education Ass'n v. Tirozzi, supra, 210 Conn. 296.
P.A. 03-258 emanates from Bill No. 6518 which was introduced by the Human Services Committee in February 2003. At the March 11, 2003 Human Services Committee meeting, the committee heard testimony from Patricia Wilson-Coker, the Commissioner of the Department of Social Services, who stated: "The bill provides that current support orders are established and modified against institutionalized or incarcerated obligors on the basis of their present income. The purpose of this change is, again, to avoid the accrual of large uncollectible arrearage amounts and to remove the psychological hurdle of large possibly usually hopeless debt from the parent's future — the parent's future. In this way, it enables the parent to maintain or establish a parent-child bond upon release, which is impeded when there is an unrealistic arrearage."
As stated above, the plaintiff claims that she was "denied any meaningful procedural due process." (Plaintiff's Petition for Appeal § 6, ¶ (d).) "The `root requirement' of the due process clause is that the state actor afford individuals notice and an opportunity for a hearing before depriving them of their property interests." Connecticut Education Ass'n v. Tirozzi, supra, 210 Conn. 298. "In altering substantive rights through enactment of rules of general applicability, a legislature generally provides constitutionally adequate process simply by enacting the statute, publishing it, and, to the extent the statute regulates private conduct, affording those within the statute's reach a reasonable opportunity both to familiarize themselves with the general requirements imposed and to comply with those requirements." (Internal quotation marks omitted.) Id. The plaintiff's claim that she was denied procedural due process is without merit.
A procedural due process challenge to the validity of P.A. 03-258 cannot proceed in the abstract. "A claim that a statute fails, on its face, to comport with the constitutional requirements of procedural due process reflects a fundamental misunderstanding of the law of due process. Due process is inherently fact-bound because due process is flexible and calls for such procedural protections as the particular situation demands . . . The constitutional requirement of procedural due process thus invokes a balancing process that cannot take place in a factual vacuum." (Internal quotation marks omitted.) Thalheim v. Greenwich, 256 Conn. 628, 648, 775 A.2d 947 (2001). Here, the plaintiff asserts that due to P.A. 03-258 "any evidence as to assets, property, inheritance, or early release of the incarcerated non-custodial parent are not given any weight in the order . . . [t]hus an unfair or unjust result is possible." (Plaintiff's Petition for Appeal § 6, ¶ (d).) The transcript, however, reveals that these matters are not at issue in this case.
[Attorney Morey] Do you have a car or any vehicle outside of the prison?
[Defendant] No.
[Attorney Morey] Do you have a house —
[Defendant] No.
[Attorney Morey] — condominium, any property?
[Defendant] Nothing.
[Attorney Morey] Do you have any assets at all?
[Defendant] Some clothes.
[Attorney Morey] And they're with you in the prison?
[Defendant] No.
[Attorney Morey] They're outside?
[Defendant] Yeah. They're at a friend's.
(Transcript, p. 5-6.) Attorney Morey also asks the plaintiff, "Do you know if there are any assets — any property, any cars, any vehicles or anything that he may own outside of [the prison?]" to which the plaintiff responded, "No." (Transcript p. 6.) Additionally, the Magistrate advised the plaintiff: "one of the things I would suggest is that you stay in touch with Support Enforcement; and the minute you hear that [the defendant] is released, that you seek a modification to get an order added based on whatever the criteria are at the time." (Transcript, p. 12.) The plaintiff's constitutional challenge, thus, is not fact-bound; it is made in the abstract. Therefore, the plaintiff's facial procedural due process challenge must fail.
This court also disagrees with the plaintiff's claim that the act violates her constitutional rights to substantive due process. The plaintiff states that "the Public Act disadvantages the population of custodial parents whom have had children with incarcerated non-custodial parents." (Plaintiff's Petition for Appeal § 6, ¶ (b).) Although the plaintiff's petition "is unclear about whether a substantive due process argument has been distinctly raised, doubts raised about the scope of [her] brief . . . persuade [the court] to address this issue briefly." Connecticut Education Ass'n v. Tirozzi, supra, 210 Conn. 299 n. 11. "The [plaintiff does] not belong to a constitutionally recognized suspect class and [has] not alleged the impairment of a fundamental constitutional right. [Her] claim must be tested, therefore, in accordance with the rules that normally govern constitutional challenges of economic or social welfare legislation, by ascertaining whether the legislature has acted arbitrarily or irrationally." Id., 299. "Constitutional attacks on the rationality of economic or social welfare legislation must rebut the presumption of constitutionality that attaches to such legislation. [T]he burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way." (Internal quotation marks omitted.) Id. The plaintiff has not satisfied this heavy burden. Hence, the act does not violate the plaintiff's rights to substantive due process.
Accordingly, the decision of the Family Support Magistrate dated February 17, 2004 is affirmed.
Graziani, J.