Cono Babbino et al. v. Charles Buonauto et al. (2010)

ORDER RE MOTION TO DISMISS # 111

The issue in this case is whether the maternal grandparents of two minor children, who were placed in their care by the Department of Children and Families (DCF), have standing to bring an action for child support against the defendant father.   A collateral issue is whether the child support order (# 104) entered by the court, Bozzuto, J., against the defendant father is void for lack of subject matter jurisdiction because the grandparents lacked standing to obtain the order in the first place.

The issues were presented to the court in a Motion to Dismiss (# 111) filed by the defendant Charles Buonauto (father).

The court finds that the grandparents had standing to bring this action pursuant to General Statutes § 46b-215.   Therefore, the court had subject matter jurisdiction to enter the order and the motion to dismiss is denied.

FACTS

On July 20, 2009, the grandparents commenced this action by service of the summons, a document entitled “Motion for Child Support, Daycare Reimbursement and Medical Insurance/Reimbursement” (complaint) and a document entitled “Motion for Attorney Fees” upon the father.   They also similarly served the defendant Melanie Lynn Babbino (mother), who has not appeared in the action and who is not a party to the present motion to dismiss.

The undisputed facts, as presented in the complaint, are as follows:  in March or April of 2009, the Department of Children and Families removed Autumn Buonauto and Amber Buonauto (children), then four years old and approximately four or five months old, respectively, from the custody of the father and the mother, their parents;  the children were placed in the custody of the maternal grandparents;  the mother and father failed to provide adequate financial support for the children, despite having significant assets;  furthermore, the father was the beneficiary of a trust containing significant assets;  the grandparents had requested that the mother and father provide support consistent with the Connecticut Child Support Guidelines and the mother and father failed to comply;  and the grandparents prayed that the court require the mother and father (1) to provide support to their children consistent with the Connecticut Child Support Guidelines, (2) to pay all daycare costs incurred on behalf of the children, and (3) to provide medical insurance for the children and pay any un-reimbursed medical expenses incurred on the children's behalf.

The father had not appeared by the second day after the return date of August 18, 2009.   On September 14, 2009, the court continued the matter for one week and ordered the father to appear with an attorney.   On September 21, 2009, the grandparents filed a proposed order (# 103) requiring the father (a) to pay $250 per week to the grandparents for the care of the children, retroactive to August 31, 2009;  (b) to pay all out of pocket expenses for the children's daycare incurred by the grandparents;  (c) to put into escrow any proceeds from the sale of his 1989 Ferrari Testarossa and Lamborghini, which are not to be disbursed absent a court order or written agreement of the parties;  and (d) to put into escrow any proceeds payable to the father from the estate of Charles Buonauto, Sr., which are not to be disbursed absent a court order or written agreement of the parties.   Because the father had still not appeared in the action, Judge Bozzuto accepted the proposed order and entered it “by default” on the same day.¹

On October 22, 2009, after the grandparents filed two motions for contempt, the father filed an appearance through counsel.   On November 25, 2009, the father filed the present motion to dismiss, along with a memorandum of law.   The grandparents filed an objection on December 4, 2009.   None of the parties attached any supporting evidence.   The court heard oral argument on the motion to dismiss on December 7, 2009.

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.)  Fennelly v. Norton, 103 Conn.App. 125, 150, 931 A.2d 269, cert. denied, 284 Conn. 918, 931 A.2d 936 (2007).  “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).

“[I]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time ․ Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ․ [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ․” (Internal quotation marks omitted.)  Ferguson Mechanical Co. v. Dept. of Public Works, 282 Conn. 764, 770-71, 924 A.2d 846 (2007).   Any order entered by a court without subject matter jurisdiction is void ab initio.  Broaca v. Broaca, 181 Conn. 463, 467-68, 435 A.2d 1016 (1980).

“The motion to dismiss ․ invokes the existing record and must be decided upon that alone ․ Where, however the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue ․” (Internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).

The father argues in essence that a court order of legal custody or guardianship is required for a party to be able to bring a cause of action for child support against non custodial biological parents on behalf of a child.²  He cites no statute or case in support of his contention.³  The grandparents dispute that legal custody or guardianship is required in order for the court to enforce a parent's duty to support his or her child under General Statutes § 46b-215.   They point out, for example, that foster parents have standing to act on behalf of children in certain situations.   The grandparents conclude that they, as caretakers, have a real interest in the welfare of the children similar to that of natural parents, which gives them standing.⁴

“Standing is the legal right to set judicial machinery in motion ․ When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue ․” (Internal quotation marks omitted.)  Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 393, 941 A.2d 868 (2008).   Standing is not “a test of substantive rights.”  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 486, 815 A.2d 1188 (2003).

“[T]he plaintiff ․ bears the burden of establishing standing.”  Seymour v. Region One Board of Education, 274 Conn. 92, 104, 874 A.2d 742, cert. denied, 546 U.S. 1016, 126 S.Ct. 659, 163 L.Ed.2d 526 (2005).  “Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words, statutorily aggrieved, or is classically aggrieved.”  (Internal quotation marks omitted.)  Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, supra, 285 Conn. 393.

“Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case.   In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.”  (Internal quotation marks omitted.)  Gillon v. Bysiewicz, 105 Conn.App. 654, 660, 939 A.2d 605 (2008).  “Classical aggrievement requires a two part showing.   First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share ․ Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest.”  (Internal quotation marks omitted.)  Id., 659.

Section 46b-215(a)(1) provides in relevant part:  “The Superior Court ․ may make and enforce orders for payment of support against any person who neglects or refuses to furnish necessary support to such person's ․ child under the age of eighteen or as otherwise provided in this subsection, according to such person's ability to furnish such support ․” This section establishes the general statutory duty of a parent to provide support to his or her minor child.   See Mulholland v. Mulholland, 31 Conn.App. 214, 232, 624 A.2d 379 (1993) (Lavery, J., dissenting), aff'd, 229 Conn. 643, 643 A.2d 246 (1994).

Subdivision (3) of § 46b-215(a) provides:  “Proceedings to obtain orders of support under this section shall be commenced by the service on the liable person or persons of a verified petition, with summons and order, of the husband or wife, child or any relative or the conservator, guardian or support enforcement officer, town or state, or any selectmen or the public official charged with the administration of public assistance of the town, or in IV-D support cases ․ the Commissioner of Social Services ․” (Emphasis added.)   This subdivision bestows standing to bring petitions for child support on certain classes of persons, including “any relative” of the child.   See Perella v. DiMichele, Superior Court, judicial district of Waterbury, Docket No. FA 07 4012677 (July 23, 2009, Bozzuto, J.) (48 Conn. L. Rptr. 342) (holding that husband of biological mother of children lacked standing to bring petition for child support because he did not fit into any categories found in subdivision (3)).

The term “relative” is statutorily undefined and there is no case law construing the term in the context of standing under § 46b-215.  “If a statute ․ does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary.”  (Internal quotation marks omitted.)  Jim's Auto Body v. Commissioner of Motor Vehicles, 285 Conn. 794, 808, 942 A.2d 305 (2008).   Webster's Third New International Dictionary defines a “relative” as “a person connected with another by blood or affinity.”

According to the undisputed facts as stated in the complaint, the grandparents are the maternal grandparents of the children and thus are related to them by blood.   As such, they fall under the common understanding of the term “relative.”   Therefore, the grandparents, as relatives, had standing under § 46b-215 to bring this action for child support.

CONCLUSION

Because the grandparents had standing to initiate this action for child support, the court, Bozzuto, J., had subject matter jurisdiction to enter the order against the father.   Therefore, the order is not void and the motion to dismiss is hereby denied.

CUTSUMPAS, JTR

FOOTNOTES

FN1. No formal motion for default was filed in this case.   Instead, at the bottom of the proposed order, the court wrote “[father] ordered to appear but failed.   Approved and entered as an order by default.”.  FN1. No formal motion for default was filed in this case.   Instead, at the bottom of the proposed order, the court wrote “[father] ordered to appear but failed.   Approved and entered as an order by default.”

FN2. The father asserts that the grandparents have custody of the children as licensed foster parents, and that, as foster parents, the state pays them a stipend for the care of the children.   The court cannot consider these assertions in deciding the motion to dismiss because they are not supported by competent evidence, such as an affidavit.   The motion must be decided only on the existing record as well as any submitted affidavits.   Cogswell v. American Transit Ins. Co., supra, 282 Conn. 516.   No party has submitted any affidavits and the only existing record are the facts contained in the complaint, which were deemed admitted when Judge Bozzuto entered the order after the father failed to appear.   See Commissioner of Social Services v. Smith, 265 Conn. 723, 735-36, 830 A.2d 228 (2003)..  FN2. The father asserts that the grandparents have custody of the children as licensed foster parents, and that, as foster parents, the state pays them a stipend for the care of the children.   The court cannot consider these assertions in deciding the motion to dismiss because they are not supported by competent evidence, such as an affidavit.   The motion must be decided only on the existing record as well as any submitted affidavits.   Cogswell v. American Transit Ins. Co., supra, 282 Conn. 516.   No party has submitted any affidavits and the only existing record are the facts contained in the complaint, which were deemed admitted when Judge Bozzuto entered the order after the father failed to appear.   See Commissioner of Social Services v. Smith, 265 Conn. 723, 735-36, 830 A.2d 228 (2003).

FN3. The grandparents argue, as a preliminary matter, that the father has not adequately briefed his argument that the grandparents lack standing because he has not cited any legal support.   See Practice Book § 11-10.   It is true that “[the court is] not required to review issues that have been improperly presented ․ through an inadequate brief ․ Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ․ Where a claim is asserted ․ but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.”  (Internal quotation marks omitted.)   Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).   The father simply states that “[i]n the absence of a Court order of legal custody and guardianship there is no legal basis in the Connecticut General Statutes or Connecticut Case Law for state employed, licensed foster parents or anyone else for that matter to petition the Superior Court for child support from non custodial biological parents.”  (Father's Memorandum of Law, p.2.) Absent the citation of any legal support for this proposition, the father has not adequately briefed his motion.Nevertheless, because this motion questions the court's subject matter jurisdiction, the court will consider the merits of the claim.  “The objection of want of jurisdiction may be made at any time ․ [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention.”  (Emphasis added;  internal quotation marks omitted.)  Missionary Society of Connecticut v. Board of Pardons & Paroles, 278 Conn. 197, 201, 896 A.2d 809 (2006).   Furthermore, a defect in the court's subject matter jurisdiction “may not be waived by any party ․” Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).   The court should not allow an order that might be void ab initio because of the lack of jurisdiction to stand without question simply because of a procedural defect by the moving party..  FN3. The grandparents argue, as a preliminary matter, that the father has not adequately briefed his argument that the grandparents lack standing because he has not cited any legal support.   See Practice Book § 11-10.   It is true that “[the court is] not required to review issues that have been improperly presented ․ through an inadequate brief ․ Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ․ Where a claim is asserted ․ but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.”  (Internal quotation marks omitted.)   Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).   The father simply states that “[i]n the absence of a Court order of legal custody and guardianship there is no legal basis in the Connecticut General Statutes or Connecticut Case Law for state employed, licensed foster parents or anyone else for that matter to petition the Superior Court for child support from non custodial biological parents.”  (Father's Memorandum of Law, p.2.) Absent the citation of any legal support for this proposition, the father has not adequately briefed his motion.Nevertheless, because this motion questions the court's subject matter jurisdiction, the court will consider the merits of the claim.  “The objection of want of jurisdiction may be made at any time ․ [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention.”  (Emphasis added;  internal quotation marks omitted.)  Missionary Society of Connecticut v. Board of Pardons & Paroles, 278 Conn. 197, 201, 896 A.2d 809 (2006).   Furthermore, a defect in the court's subject matter jurisdiction “may not be waived by any party ․” Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).   The court should not allow an order that might be void ab initio because of the lack of jurisdiction to stand without question simply because of a procedural defect by the moving party.

FN4. The grandparents imply in their objection that they care for the children as foster parents and that the department of children and families pays them a stipend for support of the children.   Again, this is not substantiated by competent evidence and cannot be considered.   Furthermore, the grandparents contend that to treat them differently than natural parents by denying them standing to bring an action for child support would violate the equal protection clause of the state and federal constitutions.   The court need not address this argument in order to dispose of the motion to dismiss, however..  FN4. The grandparents imply in their objection that they care for the children as foster parents and that the department of children and families pays them a stipend for support of the children.   Again, this is not substantiated by competent evidence and cannot be considered.   Furthermore, the grandparents contend that to treat them differently than natural parents by denying them standing to bring an action for child support would violate the equal protection clause of the state and federal constitutions.   The court need not address this argument in order to dispose of the motion to dismiss, however.

Cutsumpas, Lloyd, J.T.R.