Opinion
No. FA06-4021378
March 30, 2011
MEMORANDUM OF DECISION
The issue before the Court is a determination of the Family Support Magistrate's subject matter jurisdiction to enter a current order of support and arrearage owed to the State of Connecticut for one minor child, issue of marriage, pursuant to a Support Petition filed after the parents and the State of Connecticut entered into a Stipulated Agreement that was incorporated into a Judgment of Dissolution. The Judgment of Dissolution identified the subject child and two additional children as issue of the parties' marriage. The Judgment established an arrearage (past due support owed to the State of Connecticut), and required the parents to provide health insurance for the benefit of the three minor children and ordered each parent to pay 50% of all unreimbursed medical expenses incurred on behalf of minor children. The Judgment also reserved any determination of post-secondary educational expenses.
The mother and former wife seeks to dismiss a pending contempt action seeking to enforce a current weekly child support order and arrearage payment on the grounds that the court was without subject matter jurisdiction to enter the subsequent, second child support order against her. She asserts that the State, a party to the dissolution action, was required to modify the Dissolution Judgment, and thus the court was without jurisdiction to establish a second obligation and order for the same child.
The State of Connecticut claims that the subsequent action was proper and this court has subject matter jurisdiction to enforce its order because custody of the child was and is with the paternal grandmother who was not a party to the dissolution action. The State further adds that because no periodic order of weekly child support was ordered against the mother, it had the right to establish a second action and a new support obligation against her.
The paternal grandmother and custodian of the child has remained on State assistance for this child and no support is owed to her. She has never appeared in the action.
Factual Background
Maritza Torres, a.k.a. Marixxa Torres, is the mother of three children, issue of her 10-year marriage to Francisco Torres. In 2004, she filed an action for the dissolution of her marriage to Mr. Torres under docket number FA04-400342. The State of Connecticut IV-D Agency, the Department of Social Services, through the office of the Attorney General, filed an appearance in the dissolution action. On February 28, 2005, the parties to the dissolution, including the State of Connecticut, entered into an Agreement that was incorporated into a Judgment of Dissolution.
The Judgment provided, in relevant part, that "there be no current support orders at this time"; and that both parents provide medical and dental insurance for the benefit of the children as available at reasonable cost or to place the children on Husky. The parents agreed to each pay 50% of all unreimbursed medical expenses incurred after the first $100 expended by the custodial parent. The parties agreed to an arrearage of $1,365 owed to the State of Connecticut. The Agreement of the parties and judgment of dissolution specifically "incorporates the provisions of Conn. Gen. Stat. 46b-84(e) as if fully set forth herein."
The Dissolution Court file was unavailable at the time of this Decision. The factual statements are not contested and were confirmed via a copy of the Dissolution Judgment provided by the Assistant Attorney General and also attached to the Mother's Motion to Dismiss, dated October 13, 2010.
In May 2006, the State of Connecticut IV-D agency, the Department of Social Services, again represented by the Office of the Attorney General, filed a support action against the former wife and mother. The State sought an order of support payable by the mother for the support of one of the three children identified in the dissolution as issue of the marriage. The State alleged that paternal grandmother Silvia Torres, custodian of Ismeal, was receiving state financial assistance for the benefit of this child. On August 3, 2006, the mother appeared and she was again found to have a duty to support this child. A temporary order entered in the amount of $36 per week and she was ordered to pay 100% of any unreimbursed medical expense incurred on behalf of this child. The matter was continued for her to bring in her pay stubs.
The court record does not indicate if the mother appeared on the next court date, October 5, 2006. A final order of $55 per week in current support and $6 on an arrearage found owed to the State of Connecticut in the amount of $2,052 in past due support for this child. The Guidelines in the Court file appear to indicate she was given a credit for 3 children living in her home as imputed child support obligations. She and the Grandmother were each ordered to pay 50% of the unreimbursed medical expenses incurred on behalf of this child.
On September 16, 2009, the mother appeared on a contempt action brought by the State of Connecticut through the Office of Support Enforcement. The contempt alleges that the mother owed $1,341 in past due support. During the course of the contempt proceedings, the mother asserted that it was unfair that the father was not responsible for any reimbursement to the State for the financial assistance it provided to this child. (Transcript, hearing August 25, 2010, p. 12-13.) The Dissolution file was reviewed and the court's jurisdiction was raised. The parties were asked to brief the Court's subject matter jurisdiction.
On September 23, 2010 the State of Connecticut submitted a Brief addressing the Court's jurisdiction. On October 13, 2010, counsel for the mother filed a written motion to dismiss on the grounds that the Court lacked subject matter jurisdiction. The State, through the Assistant Attorney General argued that the Court unfairly burdened the State when it requested the State to submit a written copy of the cases it cited, arguing that it was ordered to brief the issue of subject matter jurisdiction prior to the submission of the mother's written Memorandum. As a result, the Court granted all parties additional time and opportunity to argue and brief the issue. On November 16, 2010 the State filed a written Reply to the Motion to Dismiss, and additional oral argument was thereafter heard in December 2010.
Position of the Parties
The mother argues inter alia, that the support action, in its entirety, should be dismissed pursuant to the prior pending action doctrine. (Memorandum, October 13, 2010, pp. 2-5.) Additionally, she asserts that the Superior Court had exclusive continuing jurisdiction over the mother's support obligation and the State was required to modify her obligation in the dissolution proceeding thereby depriving the Magistrate Court of subject matter jurisdiction to enter a second and subsequent support order in the support petition proceeding. (Memorandum, October 13, 2010.)
The State argues that the prior pending action doctrine is inapplicable to the present case. Additionally, the State opines that the Superior Court does not have continuing exclusive jurisdiction over the issue of child support in Title IV-D cases. (State's Brief, September 23, 2010, p. 8.) It argues inter alia that the Judgment of the dissolution court ordering the parents to provide medical insurance for the three minor children; for each parent to pay 50% of all unreimbursed medical expenses incurred on behalf of the children and established past due support owed to the State, was not a support order because there was no order of monetary support of the children. (State's Brief, September 23, 2010, p. 8; Reply Brief, November 16, 2010, p. 4.)
The State's position is similar to the position argued in Prater v. Stowell, Superior Court, judicial district of Waterbury, Docket No. UIFSA 650-09-105. In the Prater v. Stowell matter, the IV-D agency initiated a post-dissolution support action against a former custodial mother pursuant to the Uniform Interstate Child Support Act. The subsequent support action attempted to extend the mother's child support obligation beyond the child's 18th birthday in contravention to Connecticut law applicable to the Connecticut dissolution action. The Court found that the Connecticut Superior Court retained continuing exclusive jurisdiction on any modification to the dissolution court's judgment. No appeal of the court's decision was found.
Further, the State argues that if the dissolution court established the mother's legally binding financial obligation to this child, it was appropriate for the State to initiate a new support action against the mother in the name of the new custodian, the paternal grandmother. The State argues that it may establish multiple orders against a singular liable parent if there are multiple custodians of the child. (Transcript, hearing August 25, 2010, p. 17.) The State's position is based upon its claim that a third-party custodian does not have standing in a dissolution action to assert a claim of support for the benefit of the child. (Transcript, hearing August 25, 2010, p. 17, 19, 23.)
The mother's obligation to support
"The common-law duty of parents to provide for their children preceded recognition and enforcement of that duty in our statutory scheme. See Guille v. Guille, 196 Conn. 260, 263-64, 492 A.2d 175 (1985), citing Burke v. Burke, 137 Conn. 74, 75 A.2d 42 (1950). `The [parent's] duty to support . . . is a continuing obligation, which ordinarily exists even apart from any judgment or decree of support . . . A parent has both a statutory and common law duty to support his minor children within the reasonable limits of his ability.' (Citations omitted; internal quotation marks omitted.) Kalinowski v. Kropelnicki, 92 Conn.App. 344, 350, 885 A.2d 194 (2005). Our statutes reflect the parental duty of child support. See, e.g., General Statutes § 46b-37(b) (`it shall be the joint duty of each spouse to support his or her family'); General Statutes § 46b-84(a) (`[u]pon or subsequent to the . . . dissolution of any marriage or the entry of a decree of legal separation or divorce, the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance' [emphasis added]); General Statutes § 46b-215(a)(1) . . . These statutes embody the strong public policy interest of the state pertaining to matters of `needed' or `necessary' child support. `It is . . . in the interest of society that the child be supported by those obligated to support the child and that the child not be required to seek public assistance to satisfy those needs unless otherwise necessary.' Mulholland v. Mulholland, 31 Conn.App. 214, 218, 624 A.2d 379 (1993), aff'd, 229 Conn. 643, 643 A.2d 246 (1994)." Tomlinson v. Tomlinson, 119 Conn.App. 194, 201-02, 986 A.2d 1119, cert. granted, 295 Conn. 916, 990 A.2d 868 (2010).
The defendant's petition for certification to appeal was granted limited to the following issue: "Did the Appellate Court properly reverse the trial court's modification of child support on the ground that the parties' judgment of dissolution incorporated a separation agreement provision stating that the unallocated alimony and child support payments were non-modifiable?" Tomlinson v. Tomlinson, supra, 295 Conn. 916 (2010).
"The trial court's authority over issues of alimony and child support also is firmly rooted in our statutory law. Pursuant to General Statutes § 46b-1, the Superior Court exercises plenary and general subject matter jurisdiction over legal disputes in `family relations matters,' including issues of alimony and child support. Amodio v. Amodio, 247 Conn. 724, 729, 724 A.2d 1084 (1999); see also General Statutes § 46b-212h(a) (granting family support magistrate division or Superior Court exclusive jurisdiction over child support orders it previously has issued). General Statutes § 46b-56(a) provides the court broad authority to `make or modify any proper order regarding the custody, care, education, visitation and support' of minor children in dissolution actions. See Guille v. Guille, supra, 196 Conn. 266. Section 46b-86(a) vests the Superior Court with `continuing jurisdiction to modify support orders.' Amodio v. Amodio, supra, 729. In making or modifying such orders, the court is to be guided by `the best interests of the child . . .' General Statutes § 46b-56(b)." Tomlinson v. Tomlinson, supra, 119 Conn.App. 202.
The parties do not contest that the mother had a legally enforceable obligation to support the child. Based upon the unified acceptance of this legal principle, no further discussion is warranted. The parties disagree, however, on the legal effect of the dissolution judgment as to the mother. In a similar fact pattern argued recently by counsel for the State in the Prater v. Stowell, Superior Court, judicial district of Waterbury, Docket No UIFSA 650-09-105, the State argued that if a judgment of dissolution entered child support orders against the then custodial mother, the dissolution judgment would be subject to modification, only when a change in custody subsequently occurred. However, like the Prater matter, the State, through its counsel, argues that an order in a dissolution judgment compelling a former custodial mother to provide health insurance and pay 50% of medical expenses is not a child support order.
In the present matter, the State further argues that if the dissolution court entered support orders against the custodial mother, it was proper to initiate a new action against the mother because the subsequent custodian did not have standing in the dissolution action to seek a modification of the support order.
Support Order Defined
There are several statutes that define what constitutes a support order. Several statutes define a support order as inclusive of an arrearage or reimbursement of the past due child support obligation. The majority of the applicable statutes include within the definition or description of support, the necessity of including an order for "health care" as a component of the support order. More specifically, General Statutes § 46b-84(f)(2) provides:
The court shall include in each support order a provision for the health care coverage of the child who is subject to the provisions of subsection (a) or (b) of this section. Such provision may include an order for either parent or both parents to provide such coverage under any or all of subparagraphs (A), (B) or (C) of this subdivision. (Emphasis added.)
General Statutes § 46b-231(b) provides in pertinent part:
(14) `Support order' means a judgment, decree or order, whether temporary, final or subject to modification, issued by a court of competent jurisdiction, for the support and maintenance of a child, including a child who has attained the age of majority under the law of the issuing state, or a child and parent with whom the child is living, which provides for monetary support, health care, arrearages or reimbursement, and which may include related costs and fees, interest and penalties, income withholding, attorneys fees and other relief. (Emphasis added.)
General Statutes § 46b-212a provides in pertinent part:
As used in sections 46b-212 to 46b-213w, inclusive:
(2) `Child support order' means a support order for a child, including a child who has attained the age of majority under the law of the issuing state.
(24) `Support order' means a judgment, decree, order or directive whether temporary, final or subject to modification, issued by a tribunal for the benefit of a child, a spouse or a former spouse, which provides for monetary support, health care, arrearages or reimbursement, and may include related costs and fees, interest, income withholding, attorneys fees and other relief. (Emphasis added.)
Additionally, several statutes granting the courts jurisdiction to enter periodic orders of support include the provision of health insurance, payment of unreimbursed medical expenses and arrearage (past due support) as necessary components of a child support order. For example, General Statutes § 46b-215 provides in pertinent part:
(a)(1) The Superior Court or a family support magistrate may make and enforce orders for payment of support against any person who neglects or refuses to furnish necessary support to such person's spouse or a child under the age of eighteen or as otherwise provided in this subsection, according to such person's ability to furnish such support, notwithstanding the provisions of section 46b-37. If such child is unmarried and a full-time high school student, such support shall continue according to the parents' respective abilities, if such child is in need of support, until such child completes the twelfth grade or attains the age of nineteen, whichever occurs first. (2) Any such support order in a IV-D support case shall include a provision for the health care coverage of the child. Such provision may include an order for either parent or both parents to provide such coverage under any or all of subparagraphs (A), (B) or (C) of this subdivision. (Emphasis added.)
General Statutes § 17b-745(a) provides in pertinent part:
(2)(A) The court or family support magistrate shall include in each support order in a IV-D support case a provision for the health care coverage of the child. Such provision may include an order for either parent or both parents to provide such coverage under any or all of clauses (i), (ii) or (iii) of this subparagraph. (Emphasis added.)
Further, various statutes authorizing the enforcement of a parent's child support obligation include health insurance, unreimbursed medical expenses or arrearage payment as a component of a "support order" subject to enforcement. For example, the statutes regarding license suspension (Gen Stat. 46b-220), income withholding of wages 52-362f(10), and income withholding of unemployment benefits 52-362f(7) all define a "support order" to include not only a periodic payment of current support, but also include medical orders and arrearage payments.
General Statutes § 46b-220(a) regarding license suspension provides in pertinent part: "(1) `Delinquent child support obligor' means an obligor who (A) owes overdue support, accruing after the entry of a court order, in an amount which exceeds ninety days of periodic payments on a current support or arrearage payment order, (B) has failed to make court ordered medical or dental insurance coverage available within ninety days of the issuance of a court order or fails to maintain such coverage pursuant to court order for a period of ninety days, or (C) has failed, after receiving appropriate notice, to comply with subpoenas or warrants relating to paternity or child support proceedings . . . (6) `Past-due support' shall have the same meaning as provided in section 52-362j; and (7) `Overdue support' shall have the same meaning as provided in section 52-362j." (Emphasis added.) See also The statute regarding income withholding provides in pertinent part: "(10) 'Support order' means any order, decree, or judgment for the support, or for the payment of arrearages on such support, of a child, spouse, or former spouse issued by a court or agency of another jurisdiction, whether interlocutory or final, whether or not prospectively or retroactively modifiable, whether incidental to a proceeding for divorce, judicial or legal separation, separate maintenance, paternity, guardianship, civil protection, or otherwise." (Emphasis added.) General Statutes § 52-362f.
The statute regarding income withholding in unemployment situations provides in pertinent part: "(7) 'Support order' means a court order, or order of a family support magistrate including an agreement approved by a court or a family support magistrate, that requires the payment to a dependent of current support, cash medical support, a specific dollar amount of child care costs or arrearage payments." (Emphasis added.) General Statutes § 52-362f.
In accord are the Regulations of Connecticut State Agencies. The Regulations clearly include the provision of medical insurance and arrearage payments as components of a child support order. Specifically, Regulations of Conn. State Agencies § 46b-215a-2b provides in pertinent part:
(1) Award components This section shall be used to determine the current support, health care coverage and child care contribution components of all child support awards within the state
. . .
(19) `Support order' means a judgment, decree, or order, whether temporary, final, or subject to modification, issued by a court or an administrative agency of competent jurisdiction, for the support and maintenance of a child, including a child who has attained the age of majority under the law of the issuing state, or of the parent with whom the child is living, which provides for monetary support, health care, arrearages, or reimbursement, and which may include related costs and fees, interest and penalties, income withholding, attorneys fees, and other relief. Regs., Conn. State Agencies § 17b-179(a)-1.
Regs., Conn. State Agencies § 46b-215a-2b(g) further provides, in pertinent part:
each child support award entered under this section shall include a provision for either parent to contribute to the health care coverage of the child in accordance with this subsection.
See Child Support and Arrearage Guidelines, Preamble, § (b), p. ii "(3) Health care coverage contribution (A) In general The present commission recognizes, consistent with the determinations of the 1999 commission, that clear and adequate health care provisions must be included in the guidelines if they are to serve the best interests of the child. Such provisions are mandated by Title IV-D of the Social Security Act, implementing federal regulations and corresponding state law provisions. All states now have in their child support guidelines some provision for addressing the child's health care needs. The commission accordingly has retained the requirement for each child support award entered under the guidelines to include a provision for either parent to contribute to the health care coverage of the child. The requirement may be met by an order to name the child as a beneficiary of health insurance carried by or available at reasonable cost to a parent. If such insurance is not available, the order must require application for Husky B or an equivalent government-sponsored plan, as available. Low-income obligors, however, are now exempt from Husky reimbursement orders under this subsection." Child Support and Arrearage Guidelines (2005), preamble, § (g)(3)(A), p. vii. Additionally, [i]n an effort to simplify application of the guidelines by parents and practitioners, and to make them more understandable to less frequent users, the commission determined that a return to the approach followed in Connecticut's pre-1994 guidelines was warranted. Under this approach, the cost of the child's portion of any health insurance premiums paid by a parent are no longer added to the basic obligation and apportioned between the parents. Instead, both parents are allowed to deduct from their gross income the full amount of any health insurance premiums paid by them for themselves and all of their legal dependents, including the child whose support is being determined. The commission also expanded the deduction to include Husky Plan contributions." Child Support and Arrearage Guidelines (2005), preamble, § (h)(2)(C), p. x-xi.
In the pending dispute, the state of Connecticut, through its counsel, asserts that the mother's obligation to pay 50% of unreimbursed medical expense pursuant to the judgment of dissolution is not "a support order." This Court found no existing law in Connecticut that grants the IV-D Family Support Magistrate Division, or the Superior Court, jurisdiction to enter judgments of medical support that are independent judgments not components of a support order. Rather, the established common law, statutes and regulations grant jurisdiction to establish, modify and enforce child support orders that include medical support orders as a component of a support order.
Determining that an order compelling a parent to provide medical insurance, pay a portion of unreimbursed medical expense or pay past due support incurred on behalf of a minor child constitutes a "support order" is consistent with the intent of the support statutes and regulations. "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra textual evidence of the meaning of the statute shall not be considered." General Statutes § 1-2z. This interpretation is consistent with the state of Connecticut IV-D DSS policy and procedures.
The position of the State, as argued by its counsel, is inapposite to the IV-D Agency interpretation of statutes, its own regulations and contractual obligations. The Connecticut IV-D Child Support Agency, CT DSS, interprets the statutes and regulations cited herein to require its agency to establish child support orders. The establishment of a medical order or arrearage order is an established child support order, subject to modification, only, according to CT DSS. The Agency has entered into contractual obligations with the Judicial Branch (including Support Enforcement Services), consistent with this interpretation. CT DSS places the responsibility of establishing orders with CT DSS and its counsel, the Attorney General's Office. Support Enforcement Services is responsible for the modification (and enforcement) of existing orders, only. The Cooperative Agreement between the Agencies requires SES to bring modifications of existing child support orders "if only an arrearage or medical order exists." Contractually, adding current support to an established medical order or arrearage order is performed by SES as a modification of the existing order. This Court does not intend to state the CT DSS position and merely recites what is common practice and knowledge among the IV-D partners.
The argument that an order compelling a parent to provide health insurance and to contribute towards unreimbursed medical expenses is not a "child support order," would undermine the jurisdiction of hundreds, if not thousands of matters brought by CT DSS seeking the establishment of such orders in the Family Support Magistrate Division of the Superior Court. Such an interpretation, as presented by counsel for the state, would divest the FSM division of subject matter jurisdiction as the FSM jurisdiction is limited by statute, to provide for the establishment of child support. If a "medical order" is not child support, then the FSM Division has no subject matter jurisdiction over such petitions.
In the instant case, a finding that the provision of the dissolution judgment compelling the mother to provide health insurance and pay 1/2 of the unreimbursed medical expenses is not a support order would indeed yield an absurd result. It would render the provisions of the dissolution judgment superfluous and unenforceable. Indeed, if the mother failed to pay her portion of unreimbursed medical expenses as ordered pursuant to the judgment of dissolution, her failure to pay could be the subject of a contempt proceeding as such is an enforceable child support order.
Connecticut Superior Court Retained Exclusive Continuing Jurisdiction of the Child Support Obligation
"`General Statutes § 46b-1(c) provides the Superior Court with plenary and general subject matter jurisdiction over legal disputes in family relations matters, including alimony and support. General Statutes § 46b-86(a) provides the trial court with continuing jurisdiction to modify support orders.' (Internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 729, 724 A.2d 1084 (1999)." Lawrence v. Lawrence, Superior Court, judicial district of Waterbury at Waterbury, Docket No. FA04 4001788 (July 3, 2008, Cutsumpas, J.T.R.) ( 46 Conn. Law Rptr. 3, 5). In Lawrence, the court denied the out of state plaintiff's motion to dismiss the instate defendant's modification of child support where the plaintiff and children subsequently became residents of the Commonwealth of Virginia. The court reasoned that the Connecticut Superior Court "never relinquished jurisdiction over child support matters, therefore it continued to maintain exclusive jurisdiction over child support orders, including the defendant's motion for modification of child support." Lawrence v. Lawrence, supra, 46 Conn. Law Rptr. 5.
The State of Connecticut concedes that the superior court would have continuing, exclusive jurisdiction over child support if there existed a child support order between the mother and father pursuant to C.G.S. § 46b-42. (State's Brief, November 16, 2010, p. 5.) In the Torres dissolution action, the mother and father's obligation to support the minor child was the subject of the dissolution proceeding. In the final judgment the mother was granted physical custody of the children. Although the children were not represented by independent counsel during the dissolution, the State of Connecticut appeared and protected its financial interest in the support. If arguendo, the State's position that the order for a parent to provide health insurance and a portion of unreimbursed medical expense, as well as the establishment of an arrearage is something other than a support order because it was not set forth in a periodic amount, it cannot be concluded that the court failed to address the issue of support for the children. It was inferred that the father, noncustodial parent, was incarcerated or soon to be incarcerated. The lack of a weekly periodic order may more reasonably be presumed to be the result of a lack of present ability to pay a weekly amount. The change of custody of a child would constitute a change of circumstances warranting a modification of the dissolution judgment.
The State of Connecticut requested and received an award of past due support that presumably included past due support for this child. The paternal grandmother had received financial assistance from the State for this child prior to the dissolution and continuously thereafter. The State appeared in the Dissolution action and had standing to request a periodic order if one was appropriate. The grandmother did not then, and does not now assert any claim for support.
The child's interest in receiving financial support from her parents was properly heard by the dissolution court. Costello v. Costello, 186 Conn. 773, 776-77, 443 A.2d 1282 (1982); see Johnson v. Bessette, CT Page 8123 37 Conn.Sup. 891, 896, 442 A.2d 70 (1981); Guille v. Guille, supra, 196 Conn. 267-68. Indeed, "it is implicit in the computation of current support orders that each parent's share must be computed, regardless of who requests the support order. Clearly, if either parent's support obligation is not met by providing direct support to a child in that parent's custody or by satisfaction and appropriate voluntary payments, it is not only the court's right, but its duty, to set a support order." Drakeford v Ward, Superior Court, judicial district of Hartford, Docket No. FA 97-0623106, p. 17 (November 7, 2001, Lifshitz, F.S.M.); Decamillis v Hasiotis, Superior Court, judicial district of Hartford, Docket No. FA00-06303962001, Ct.Sup. 12890, 12892, 2001 WL 11924 (September 5, 2001, Lifshitz, F.S.M.) [ 31 Conn. L. Rptr. 152] (Appeal denied, Order December 20, 2001).
The State cites the Drakeford case in its September 23, 2010 brief, at page 6. However, the statement of law could not be found in the case cited. Indeed, the Decision appears to be contrary to the State's position in so far as the Court entered an order against both non custodial parents where the custodial relatives, paternal grandparents, did not seek an order against their son.
A failure by the dissolution court to address the issues of the weekly support obligation of the legally liable parents, if requested by the state or any party, would constitute a violation of the court's duty and fundamental obligation to decide all matters properly presented to it. Ramin v Ramin, 281 Conn. 324, 915 A.2d 790 (2007). The State proffered no compelling or extreme circumstance that would justify its argument that the court failed to exercise its authority to render findings, orders and judgment relative to the financial support of the minor children. In fact to do so would have been contrary to the efficient administration of justice, and would foster improper re-litigation to establish support orders.
Presumably, the dissolution court relied upon a guidelines calculation in determining the State's arrearage finding. Connecticut General Statutes and Regulations set forth the mechanism to determine the presumptive support for minor children. In any proceeding for the establishment or modification of a child support award, the child support guidelines shall be considered in addition to, and not in lieu of, the criteria for such awards established pursuant to Connecticut General Statutes. Connecticut law clearly requires a dissolution court to make findings as to the presumptive support obligations of divorcing parents. Kiniry v. Kiniry, 299 Conn. 308 (2010). In Kiniry, the Connecticut Supreme Court held that the trial court erred in ordering "that neither party shall pay child support," because it failed to set forth the presumptive child support obligation of the parents pursuant to a guidelines calculation and set forth any deviation basis there from. Id., 298 Conn. At 319-21. See also, Maturo v Maturo, 296 Conn. 80 (2010); Fitsimons v. Fitsimons, 116 Conn.App. 449 (2009); Unklebach v. McNary, 244 Conn. 350, 367 (2009); Wallbeoff v. Wallbeoff, 113 Conn.App. 107 (2009); Golden v. Mandel, 110 Conn.App. 376 (2008) (requiring the court to consider and apply the child support and arrearage guidelines to all determinations of presumptive child support payments and health insurance contributions); See also Practice Book § 25-30(e).
Accordingly, private agreements between parents not in accordance with the financial dictates of the guidelines are not enforceable unless one of the guidelines deviation criteria is present, such as when the terms of the agreement are in the best interest of the child. Brent v. Lebowitz, 67 Conn.App. 527, 532, 787 A.2d 621, cert. granted, 260 Conn. 902 (2002).
The amount calculated for the mother, as the custodial parent, is inferred to be retained by the custodial parent, presumed to be spent on the child. Kissell v. Kissell, Superior Court, judicial district of Tolland at Rockville, Docket No. FA02 0078339 (December 1, 2010, Frazzini, J.). These two amounts together constitute the current support obligation of both parents. Id.
A final judgment determines a child's independent right to receive financial support from her parents relative to the "rights and duties of the parents toward each other. 2 Nelson, Divorce and Annulment (2d Ed. 1961) 14.98." Guille v. Guille, supra, 263. The subsequent change of custody in the present matter constituted a change in circumstances. It created no new obligation on the parents; rather, it warranted a modification of the dissolution orders.
The State argues that the paternal grandparent was not and may not have been allowed party status in the dissolution because she had had no legal standing or right to participate in the dissolution to establish or modify her right to receive child support. This position is without legal or factual merit. Kennedy v. Kennedy, 177 Conn. 47, 50, 411 A.2d 25 (1979). The position fails to recognize that it is not the right of the grandparent to receive child support that is the disputed and litigated issue. Rather, it is the child's independent right to receive financial support from her parents and the parents' duty to support the child that is the litigated and justiciable issue.
Case law supports the right of a custodian to seek support of a minor child pursuant in a dissolution action. Fish v. Fish, 285 Conn. 24 (2008); Parella v Dimichele, Superior Court, judicial district of Waterbury, Docket No. FA07-4012677 (July 23, 2009, Bozzuto, J.) [ 48 Conn. L. Rptr. 342]. The child's right to receive financial support from his parents, the legally liable parties, was fully and fairly litigated in the dissolution action and was properly the subject of any subsequent modification.
Factually, the paternal grandmother has assigned all right to receive the support to the State of Connecticut as she is a recipient of state cash assistance for this child. She has not appeared in the support action and has made no claim to current or past support. The only interest asserted is the State's interest in recovering cash assistance it has provided to this child. The State may recover against both parents through its collection authority independent of its assignment of child support payments.
Further, the IV-D Agency has the capacity, if not the duty, to add the custodian as a party plaintiff to the original court action pursuant to the Regulations of Connecticut State Agencies. See, Regs., Conn. State Agencies § 17b-179(m)-9(a)(4); see also Practice Book § 25a-10 ("in Title IV-D child support matters, a motion to cite in or to admit new parties is limited to a parent, legal custodian and guardian"). Several additional statutes specifically allow for the redirection of the support order to the custodial party. See, General Statutes § 46b-215(c); General Statutes § 46b-172(b)(3); General Statutes § 46b-171(a)(1)(B); and General Statutes § 17b-745(a)(6)(B).
The State's position that it may bring any number of actions against a legally liable relative as there may be custodians of the child is no less than an attempt to obfuscate the prohibitions against retroactive arrearages prohibited under federal and state law. Conn. Gen. Stat. §§ 46b-84, 46b-86, 46b-171(a)(5) and 46b-215(11). See Favrow v. Vargas, 231 Conn. 1 (1994).
This position is no less egregious than in the situation where a subsequent support petition is filed seeking a new arrearage, or impermissible retroactive arrearage, based on the claim that the original support order "expired." "The `expire[d] order' notion is a mutant hybrid of inconceivable jurisdictional interloping whereby the [requesting party] dissects an existing order and assumes jurisdiction over only a portion of the order while relegating jurisdiction of its balance to the original [order]." Spencer v. Spencer, 10 N.Y.3rd 60 (2008).
Prior Pending Action
The mother asserts that the judgment of dissolution constitutes her legally enforceable obligation because it is a prior pending action. The doctrine of prior pending action "permits the court to dismiss a second case that raises issues currently pending before the court." Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 216, 719 A.2d 469 (1998). "The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious." (Internal quotation marks omitted.) Id. Accordingly, "[t]he policy behind the prior pending action doctrine is to prevent unnecessary litigation that places a burden on our state's already crowded court dockets." (Internal quotation marks omitted.) Beaudoin v. Town Oil Co., 207 Conn. 575, 588, 542 A.2d 1124 (1988).
Case law suggests that there is a three-pronged test to determine whether a new action should be dismissed under this doctrine. The court should review the record and determine whether the actions "(1) arise from the same factual background, (2) include the same parties and (3) seek the same goals or objectives." Modzelewski v. William Raveis Real Estate, Inc., 65 Conn.App. 708, 714, 783 A.2d 1074, cert. denied, 258 Conn. 948, 788 A.2d 96 (2001).
The mother in the instant case may correctly assert that the prior dissolution case was of the same character and between the same parties, i.e. that it established the parents' legal obligation to support the three minor children based upon applicable law. However, it cannot be said that the dissolution action was pending at the time the support action was commenced. Therefore, her argument must fail. See Commissioner of Social Services v. Cauford Shippy, Superior Court, judicial district of Hartford, Docket No. FA10-4050416 (October 18, 2010, Adelman, J.).
It appears that the appeal file by the State may not have been opposed and it is unclear what, if any provision of support had entered in the earlier action. The practice of filing subsequent actions may vary by judicial district. For example, in Narayan v. Narayan, 122 Conn.App. 206, 208 (2010), the Appellate Court noted that it is the practice of the Stamford-Norwalk judicial court to file subsequent support petitions in the dissolution file and assign such the same docket number.
Orders
In light of the above, the mother's legally enforceable obligation to support the minor child Ismael, issue of marriage, was established by the dissolution court. The Superior Court retained exclusive continuing jurisdiction on the issue of the child support for this child and any change in circumstances would be the proper subject of a modification. The subsequent support petition awarding the state arrearages constituted an improper retroactive modification of the mother's support obligation. The court lacks subject matter jurisdiction to enforce an improper arrearage award established pursuant to the support petition. Therefore, the mother's motion to dismiss is granted in part in so far as the contempt citation seeks to enforce any prohibited retroactive arrearages. The mother is to be given a credit of the original retroactive arrearages established through the support petition action in the amount of $2,052. The parties may contact the clerk's office to schedule any further proceedings in accordance with this decision.