Opinion
No. FA 04-4003958 S
January 25, 2005
MEMORANDUM OF DECISION ON MOTION TO DISMISS
This is an appeal of a family magistrate's decision seeking the removal of improper parties to the action and questioning the merits of the magistrate's decision.
FACTS
This appeal arises out of a September 23, 2004 decision issued by the family support magistrate finding that the defendant father owed back child support to the plaintiff mother on behalf of their three children. On January 8, 2004, a hearing was held at which both the defendant and the state of Connecticut, acting on behalf of the plaintiff who resides in North Carolina, presented audits of the defendant's child support payments and arrearages. The family support magistrate issued a decision on September 23, 2004, finding that the defendant was in arrears in the amount of $2,221.28.
On October 13, 2004, the defendant filed an appeal claiming that the family magistrate's decision is clearly erroneous and in violation of statutory provisions. On that date, the defendant filed a motion to compel the court to provide him with a copy of the formal decision by the family support magistrate. On October 22, 2004, the defendant filed a motion to remove the state of Connecticut from the appeal as an improper party. The state filed a memorandum of law in opposition to the appeal on October 20, 2004 and a memorandum of law in opposition to the motion to remove improper parties on October 27, 2004.
DISCUSSION
In his motion to remove improper parties from the appeal, the defendant contends that the state itself has no common-law or statutory authority to plead in as a third-party plaintiff to represent the plaintiff or substitute for the plaintiff in this or any other family proceeding and, consequently, the state has no standing. The defendant also claims that the plaintiff has failed to personally appear or plead in this action. The state argues that it has statutory authority to plead in this matter pursuant to General Statutes §§ 46b-212 through 46b-213v, inclusive, known as the Uniform Interstate Family Support Act (UIFSA). It also argues that the plaintiff has pleaded in this action as all UIFSA petitions must be sworn to by the petitioner to be valid and that pursuant to § 46b-213a(a), the plaintiff's presence is not necessary.
It should be noted that a motion to remove improper parties from the appeal is not the correct procedural vehicle for asserting such a claim. "Naming an improper person as a party in a legal action constitutes misjoinder . . . The exclusive remedy for misjoinder of parties is by motion to strike." (Citation omitted.) Zanoni v. Hudon, 42 Conn.App. 70, 73, 678 A.2d 12 (1996). See also Practice Book § 11-3.
"[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). "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). "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action. . . . Standing is established by showing that the party claiming it is authorized by statute to bring suit [in other words, statutorily aggrieved] or is classically aggrieved." (Internal quotation marks omitted.) Edgewood Village, Inc. v. Housing Authority, 265 Conn. 280, 288, 828 A.2d 52 (2003), cert. denied, 124 S.Ct. 1416, 158 L.Ed.2d 82, 72 U.S.L.W. 3535 (2004).
The defendant asserts that under the holding in Blumenthal v. Barnes, 261 Conn. 434, 804 A.2d 152 (2002), 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. The issue in the present case is whether the attorney general has standing pursuant to either common law or statute, not merely whether there is common-law authority as was the issue in Blumenthal. The defendant contends that there is no such common-law or statutory authority. General Statutes § 46b-212t, however, 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 Statues § 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 both seek to enforce a valid child support order. As such, the attorney general and the support enforcement agency have standing to appear and plead in this action.
The defendant also 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." Clearly, the plaintiff was not required to attend any proceedings in Connecticut when she sought to have a valid North Carolina child support order enforced. As the state has standing to plead on the plaintiff's behalf, valid pleadings have been submitted in this action. Because the state has standing and is a proper party to this action and the plaintiff is not required to personally appear, the defendant's motion to remove improper parties is denied.
The defendant next asserts that the family support magistrate's decision violated statutory provisions because it was rendered eight months after the hearing held on January 8, 2004, well past the 120-day time frame allotted under the statute. The defendant also disputes the findings of that decision, claiming that he is not in arrears, but rather is owed a credit. He further argues that he was not notified of the September 23, 2004 decision until October 6, 2004, one day before the 14-day period in which to file an appeal expired.
In response, the state asserts that, because the defendant failed to file a timely motion for reassignment, he is deemed to have waived his right to appeal. It also contends that the issue before the family support magistrate at the January 8, 2004 hearing on child support and arrearages involved a finding of fact and that the decision was not clearly erroneous based on the evidence presented. Finally, it argues that the defendant did not provide a full and adequate record and that he was not entitled to present testimony or any additional evidence. The state does not dispute that the defendant received notice of the family magistrate's decision one day before the 14-day appeal period's expiration and thus does not challenge the timeliness of the appeal itself.
General Statutes § 46b-231(n)(1) provides a statutory right to appeal a final decision from a family support magistrate. Section 46b-231(n)(2) provides that a party has fourteen days from the day the decision is filed to appeal. "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." General Statutes § 46b-231(n)(7).
General Statutes § 46b-231(n)(1) states: "A person who is aggrieved by a final decision of a family support magistrate is entitled to judicial review by way of appeal under this section."
General Statutes § 46b-231(n)(2) states in part: "Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district in which the decision of the family support magistrate was rendered no later than fourteen days after filing of the final decision with an assistant clerk assigned to the Family Support Magistrate Division or, if a rehearing is requested, not later than fourteen days after filing of the notice of the decision thereon." In the present base, the deadline to file the appeal was on October 7, 2004. The father contends that he did not receive notice of the decision until October 6, 2004, and, therefore, did not file his appeal petition until October 13, 2004. The state acknowledges that there was a time lapse between the rendering of the Family Support Magistrate's decision and the father receiving notice of that decision and does not dispute the timeliness of the appeal. Regardless of that time lapse, however, "[a] statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created . . . Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal." (Citations omitted; internal quotation marks omitted.) Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 640, 662 A.2d 1251 (1995). In Diaz v. Diaz, Superior Court, judicial district of Danbury, Docket No. FA 94 031770 (June 8, 2004, Frankel, J.) ( 37 Conn. L. Rptr. 195), the court dismissed an appeal from the decision of the Family Support Magistrate for failure to comply with § 46b-231(n)(2) despite that notice of the December 26, 2003 decision was not received by the plaintiff until January 5, 2004, four days before the fourteen-day appeal period ended. The court stated that there was time available for the plaintiff to file an appeal within the statutory period. But see Goulette v. Goulette, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. FA 87 0241405 (March 5, 1993, Moran, J.) (when notice of a Family Support Magistrate was sent one month after rendering the decision, the court held that the fourteen-day appeal period began to run when the notice was sent and stated that this finding was applicable only to that particular case and based solely on those facts).
Practice Book § 11-19(a) states in part: "Any judge of the superior court and any judge trial referee to whom a short calendar matter has been submitted for decision, with or without oral argument, shall issue a decision not later than 120 days from the date of such submission, unless the time limit is waived by the parties." Practice Book § 11-19 (b) provides the procedure for a party seeking to enforce the 120-day time limit. It states:
"A party seeking to invoke the provisions of this section shall not later than fourteen days after the expiration of the 120-day period file with the clerk a motion for reassignment of the undecided short calendar matter which shall set forth the date of submission of the short calendar matter, the name of the judge or referee to whom it was submitted, that a timely decision on the matter has not been rendered, and whether or not oral argument is requested or testimony required. The failure of a party to file a timely motion for reassignment shall be deemed a waiver by that party of the 120-day time." Practice Book § 11-19(b).
The defendant's argument regarding the untimely nature of the decision is without merit. Rather than filing a motion for reassignment within fourteen days of the expiration of the 120-day time limit, the father chose to wait a number of months until an unfavorable decision was rendered to take action. In Chiocchio v. Alden, Superior Court, judicial district of New Haven, Docket No. CV 97 0395862 (October 9, 1998, Silbert, J.), the court stated, in denying a motion to vacate filed after the expiration of the 120 days, that the principal purpose of § 11-19 "is plainly to encourage judges to render timely decisions. Another purpose is to provide a vehicle for a reassignment of a case to another judge if a timely decision has not been forthcoming. It is not, however, a purpose of this provision to permit a party who does not like a decision once it has been rendered to use the `120 day rule' as an excuse to set that decision aside." As the defendant failed to file a timely motion for reassignment upon the expiration of the 120 days, he is deemed to have waived the right to challenge the timeliness of the family magistrate's decision on appeal.
The defendant also argues that the family support magistrate erred when he found that the defendant owed an arrearage. The defendant asserts that the evidence clearly showed that he was owed a credit. In his decision, the family support magistrate concluded that, based on testimony and the audit of the case he reviewed, the defendant owed an arrearage. He heard oral argument and testimony on whether the audit was correct and accepted evidence on this issue from both sides. He then concluded that the evidence showed an arrearage.
"A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Efthimiou v. Smith, 268 Conn. 487, 493-94, 846 A.2d 216 (2004). In this case, the audit prepared by the state supported the conclusion that there was an arrearage. Though the defendant did present evidence that the audit was flawed, there was no "definite and firm conviction" to support a conclusion from this court that the family support magistrate erred in his determination that the audit was correct. As such, the family support magistrate's decision is not clearly erroneous and the family support magistrate's decision is upheld.
CONCLUSION
The defendant's motion to remove improper parties from the appeal is denied. The state of Connecticut has standing in this matter as is articulated in the UIFSA. In addition, the UIFSA specifically relieves the plaintiff in the present case, in a foreign registration and modification proceeding, of the responsibility to personally appear. Further, the defendant has waived his right to object to the passing of the 120-day deadline and, because the family magistrate's decision is supported by substantial evidence, it is not clearly erroneous.
Prestley, J.