Summary
In Sullivan v. State, 38 Conn. Sup. 534, 453 A.2d 91 (1982), the Appellate Session of the Superior Court, Covello, J., reviewed a claim similar to the one at hand.
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FILE No. 1124
The plaintiff, having acknowledged paternity of a minor child, and having been ordered to pay support for that child and to reimburse the state for payments it had made on behalf of the child under the aid to families with dependent children program, sought a new trial on the issue of paternity. On the state's appeal to this court from the trial court's judgment ordering a new trial, held that, the claim of the state that the plaintiff was barred by the statute of limitations from obtaining a new trial notwithstanding, the trial court did not err in ordering the new trial since the statute ( 46b-172), which at the time of the original support order had prevented the defendant from contesting his acknowledged paternity, had been declared unconstitutional.
Argued February 23, 1982 —
Decided October 15, 1982
Petition for a new trial, brought to the Superior Court in the sixth geographical area and tried to the court, Falsey, J.; judgment for the plaintiff awarding a new trial from which defendant State of Connecticut has appealed. No error.
Stephen J. McGovern, assistant attorney general, for the appellant (state).
LeRoy Jones, for the appellee (plaintiff).
The plaintiff instituted this action seeking a new trial on the issue of paternity which initially arose in connection with support proceedings initiated by the state.
The procedural facts are as follows: On August 19, 1976, the defendant, Pamela Rubino, executed an affirmation of paternity in which she acknowledged that the plaintiff, John Sullivan, was the father of her child, born April 2, 1974. On August 26, 1976, the plaintiff also executed an acknowledgment of paternity wherein he acknowledged that he was the father of the child. On September 12, 1976, the defendant's acknowledgment was filed in the Court of Common Pleas for the sixth geographical area.
On March 22, 1979, the state of Connecticut instituted an action seeking an order of support against the plaintiff to obtain reimbursement of state assistance paid in behalf of the minor under the aid to families with dependent children program. On April 23, 1979, the court rendered judgment ordering the plaintiff to pay $68 per week current support and $10 per week on account of an arrearage of $18,928.65 owed to the state of Connecticut.
On January 31, 1980, the plaintiff brought this action for a new trial pursuant to General Statutes 52-270, claiming that he was not the father of the child. The state interposed a special defense that this action was not brought within three years of the entry of the plaintiff's acknowledgment of paternity and was therefore barred by the provisions of General Statutes 52-582. On March 16, 1981, the court filed a supplemental memorandum of decision rejecting the statute of limitations claim, and ordered a new trial. The state has appealed.
General Statutes 52-270 provides in relevant part: "The superior court may grant a new trial of any cause that may come before it . . . for . . . reasonable cause, according to the usual rules in such cases."
General Statutes 52-582 provides: "No petition for a new trial in any civil or criminal proceeding shall be brought but within three years next after the rendition of the judgment or decree complained of."
The gravamen of the state's claim is that acknowledgments of paternity executed and filed in accordance with the provisions of General Statutes 46b-172 (a) have "the same force and effect as a judgment" of the court. The state argues, therefore, that the three-year limitation period described in General Statutes 52-582 should have run from September 12, 1976, the date the acknowledgment was filed in court. This being the case, the plaintiff's petition of January 31, 1980, came four and one half months after the three year period had expired. We do not agree.
General Statutes 46b-172 (a) provides in relevant part: "[T]he written acknowledgment of paternity executed by the putative father of the child when accompanied by a written affirmation of paternity executed and sworn to by the mother of the child and filed with the superior court . . . shall have the same force and effect as a judgment of that court . . . ." (Emphasis added.)
Stone v. Maher, 527 F. Sup. 10 (D. Conn. 1980) held unconstitutional those provisions of General Statutes 46b-172 which prevent a putative father who has signed an acknowledgment of paternity form from litigating that issue thereafter in a judicial proceeding held for the purpose of determining his support obligations. In Johnson v. Bessette, 37 Conn. Sup. 891, 442 A.2d 70 (1981), we held that although the defendant's acknowledgment of paternity was filed in 1975, almost five years prior to the Stone decision, as a member of the plaintiff class in Stone, he had the right to litigate the issue of paternity in a judicial proceeding.
The present plaintiff is also a member of the named class in Stone. At the time of the prior proceedings in this case and before Stone, a petition for new trial was not available to him. We do not believe that the plaintiff can thus "be deprived of the opportunity to contest the paternity issue which he won in the federal court." Johnson v. Bessette, supra, 896; see State v. Bashura, 37 Conn. Sup. 745, 436 A.2d 785 (1981).
Public Acts 1981, No 81-274 repealed and republished General Statutes 46b-172 (b)to make it clear that a paternity proceeding is res adjudicata as to the paternity issue unless a petition for a new trial is filed under the provisions of General Statutes 52-270.