Debra L. Frazee v. Gerald E. Frazee (2011)

MEMORANDUM OF DECISION

This matter comes to the court as an appeal from the decision of a family support magistrate (FSM) pursuant to Connecticut General Statutes § 46b–231(n).  The respondent filed his appeal dated February 8, 2011 on the following day appealing the decision of FSM Lifshitz dated January 31, 2011.   That filing was quickly followed on March 8, 2011 by a pleading titled “Supplemental Appeal Petition.”   That second filing sought to also appeal the denial of the respondent's motion to reconsider or reopen the underlying decision in this matter entered on October 17, 2010.   There is no issue that the appeal was generally properly and timely filed by a party with standing to appeal although not all of the issues raised by the two appeals would fit within this definition as will be discussed below.

The facts of the case are not quite so straightforward.   This matter is a Uniform Interstate Family Support Act (UIFSA) case from California.   The UIFSA petition asked the Connecticut court to enforce orders arising from a divorce decree entered by the California court in 2003.   The petitioner is a California resident and the respondent now lives in Connecticut.   The respondent has been represented by counsel throughout the Connecticut proceedings which began in the early part of 2009.¹  The appeal is being made from the decision of the FSM holding the respondent in contempt on January 31, 2011.   He cites numerous reasons for his appeal and they shall be addressed in the order raised.

The first, and perhaps most important, basis for the appeal is that the Connecticut court lacks subject matter jurisdiction to hear the petition.   This is based on the respondent's position that because the California Department of Child Support Services issued a policy guideline limiting their willingness to pursue the claims before the Connecticut court, our court lacks the subject matter jurisdiction to proceed against the respondent.

This portion of the appeal is objected to by the State of Connecticut on the basis that the registration of the California decree was resolved in prior hearings and appeals.   The State argues that the current appeal is not timely and violates the judicial doctrine of res judicata as the respondent's prior appeals to the Superior Court were denied and no further appeals to the Appellate Court or the Supreme Court were filed.   The respondent argues that the issue of subject matter jurisdiction may always be raised.   The court agrees with the State's position, but nevertheless, will address the issue because a claim of subject matter jurisdiction goes to the essence of the court's ability to even consider the matter.

Counsel for the respondent argues that the family support magistrate courts are a creature of statute and as a UIFSA Tribunal it is a court of limited jurisdiction.   He claims that the California petition was based on an error because it was determined to include spousal support arrearages which was against the California policy guidelines, and therefore, cannot be enforced in Connecticut because the court lacks the subject matter jurisdiction to handle the claim.

Connecticut courts deal with UIFSA claims under CGS § 46b–212.   That statute is clear that spousal support orders are enforceable under its provisions.   Subsection (3) of CGS § 46b–212a defines the “Duty of support” to include “support for a child, spouse or former spouse, including an unsatisfied obligation to provide support.”  (Emphasis added).   Additionally, in subsection (24) of the same statute a “Support order” is defined as including an ․ order ․ issued by a tribunal for the benefit of a child, a spouse or a former spouse, which provides for monetary support, ․ [and] arrearages.”  (Emphasis added).   The fact that a policy guideline in another state may or may not restrict how that state deals with certain orders does not eliminate Connecticut's authority under our statute.   The California decree is valid in all respects and deserves enforcement in Connecticut.   Connecticut has subject matter jurisdiction.²

Since the claim that the court lacks subject matter jurisdiction has been denied, the State's position is that the respondent's appeal of February 8, 2011 is limited by statute to only the newer issues of the January 31, 2011 orders regarding the finding of contempt and the setting of the purge amount;  that all other issues raised in the appeal have been previously decided;  and that the supplemental appeal of March 8, 2011 is likewise limited by the same statute supporting the denial of the respondent's motion to reconsider.

Appeals, such as the instant matter, are taken to the Superior Court pursuant to CGS § 46b–231(n) and Connecticut Practice Book § 25a–29.³  The respondent must demonstrate that he has been aggrieved by a final decision of the FSM to be entitled to the judicial review.   Subsection 7 of the statute reads, in part:

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.   The respondent claims that he was denied due process.

The court cannot find any merit in the respondent's argument that the FSM abused his discretion in the finding of contempt or the setting of the purge amount.   There is no factual foundation to attack the contempt finding other than the argument already disposed of, namely that the California order is not enforceable because it is based on a spousal support alimony arrearage and not a child support arrearage.   Likewise, a review of the proceedings on January 31, 2011 reveals no lack of due process or arbitrary actions on the part of the FSM. The respondent was represented at all times and allowed to participate fully in the proceeding.   His counsel did not dispute the testimony regarding the respondent's payment of the court ordered amounts but did take advantage of his right to cross-examine the witness presenting the payment record.⁴  Additionally, the respondent called several other witnesses to testify at the hearing.   At the end of the presentation of evidence, the court recessed to review the file including the new exhibits.

There is absolutely no suggestion of a lack of due process in this matter other than the repeated claim that the respondent should have received a separate and distinct citation for each of the continued hearings.   That argument has no merit.   The constitutional protection afforded by due process requires that the respondent have the right to notice and an opportunity to be heard.   That opportunity must, of course, be a true opportunity including the right to present evidence and argument to the court.  “Parties whose rights are to be affected are entitled to be heard;  and in order that they may enjoy that right they must first be notified ․ It is equally fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner ․ Due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances ․ Instead, due process is a flexible principle that calls for such procedural protections as the particular situation demands.”  (Citations omitted;  internal quotation marks omitted.)  In re DeLeon J., 290 Conn. 371 (2009).   Clearly the respondent had a meaningful opportunity and he certainly was on notice of the specific issues to be heard and decided that day.   The respondent did not like the outcome, but he did have due process.⁵

Upon resuming, the court explained in great detail its findings as to the testimony and evidence produced during that day's hearing as well as the review of the other evidence in the matter.⁶  Magistrate Lifshitz's ruling was a logical extension of his findings.   The respondent's claim that the decision was arbitrary in light of the lengthy and complete review of the evidence is not persuasive.

Another claim made is that the FSM inappropriately denied the respondent's motion for the FSM to recuse himself from hearing the instant matter.   This was based on the respondent's perception that the FSM was biased against him and had prejudged the matter.   Cited in the appeal are references to comments allegedly made by the FSM to the effect that the respondent “would ‘have to pay’ “ and that he would be given “ ‘a very short time’ to pay.”   These comments were allegedly made some eight (8) months prior to the January 31, 2011 decision and form the basis for the respondent's claim that the trier of fact was biased against him.   The Code of Judicial Conduct 7 Rule # 2.11 deals with the issue of “Disqualification.”   There is nothing in that rule that would suggest that this particular FSM was obligated to recuse or disqualify himself from the hearing.   The only part of that rule that might apply to this case is found in Section (a)(4) which restricts judges—or family support magistrates from making public statements that “commits or appears to commit the judge to reach a particular result or rule in a particular way ․” That section does not apply because it specifically excludes any comments made in a court proceeding.   Additionally, a review of the transcript from the hearing in question on May 13, 2010 makes it very clear that the respondent has quoted the FSM out of context.   There is absolutely no convincing evidence that FSM Lifshitz in any way compromised his impartiality as the trier of fact in this matter.⁸

Regarding the respondent's Supplemental Appeal Petition which refers to the FSM's denial of a Motion to Reconsider or Reopen filed on December 9, 2010—that motion was denied by Magistrate Lifshitz in a written decision dated February 27, 2011.   In that decision, he sets forth very clearly and patiently the basis for his denial of the motion.   His review of the facts and the law are careful, accurate and reflective of considerable thought and effort on his part.⁹  The issues raised were the same issues discussed above and require no further analysis other than to say that no new evidence in support of the respondent's position was offered leaving the matter within the discretion of the FSM. Applying the review standards as set forth in CGS § 46b–231n(7) as detailed above, there is no basis for this court to challenge the soundness of the decision issued.

Accordingly, both appeals are denied.

SO ORDERED.

BY THE COURT,

Adelman, J.

FOOTNOTES

FN1. The registration date in the Connecticut file is March 4, 2009.   The respondent was served with notice of the registration on March 10, 2009 and filed his objection to the registration.   The first court hearing in Connecticut was May 21, 2009..  FN1. The registration date in the Connecticut file is March 4, 2009.   The respondent was served with notice of the registration on March 10, 2009 and filed his objection to the registration.   The first court hearing in Connecticut was May 21, 2009.

FN2. It is noted that this issue was completely reviewed and examined by Magistrate Lifshitz in his October 17, 2010 Memorandum of Decision Re Objection to Registration;  regardless, the respondent continues to raise the issue.   Despite the fact that he has had more than one opportunity to be heard on his claim that Connecticut lacks subject matter jurisdiction, his arguments have not been persuasive at any of those times..  FN2. It is noted that this issue was completely reviewed and examined by Magistrate Lifshitz in his October 17, 2010 Memorandum of Decision Re Objection to Registration;  regardless, the respondent continues to raise the issue.   Despite the fact that he has had more than one opportunity to be heard on his claim that Connecticut lacks subject matter jurisdiction, his arguments have not been persuasive at any of those times.

FN3. This is the recently revised Practice Book section.   Until this year the applicable section was 25–66..  FN3. This is the recently revised Practice Book section.   Until this year the applicable section was 25–66.

FN4. The cross-examination consisted of one question relating to the respondent's position that he was not served with a separate citation for each and every continuance of the contempt proceeding..  FN4. The cross-examination consisted of one question relating to the respondent's position that he was not served with a separate citation for each and every continuance of the contempt proceeding.

FN5. In addition to the present appeal, the respondent has appealed other rulings in this matter.   He has never been denied his due process on any level or in any aspect of the case..  FN5. In addition to the present appeal, the respondent has appealed other rulings in this matter.   He has never been denied his due process on any level or in any aspect of the case.

FN6. The portion of the transcript covering the court's explanation of its findings and its rulings runs for almost fourteen pages..  FN6. The portion of the transcript covering the court's explanation of its findings and its rulings runs for almost fourteen pages.

FN7. The Code of Judicial Conduct was changed and the new rules became effective January 1, 2011.   The decision from which this appeal has been taken is covered by those new rules since the matter took place on January 31, 2011..  FN7. The Code of Judicial Conduct was changed and the new rules became effective January 1, 2011.   The decision from which this appeal has been taken is covered by those new rules since the matter took place on January 31, 2011.

FN8. One might also consider Rule 2.3 bias or prejudice in this fact pattern, but once again there is no evidence to support such a claim other than the type of chatter one often finds in magistrate court.   The prior rule requiring the avoidance of even the appearance of impropriety has been abandoned for a more definite factual finding.   This was truly a “does it stick to the wall” type of claim and it does not.   Further, the fact that the same assertions are repeated over and over again by the respondent does not lend any additional weight to his argument..  FN8. One might also consider Rule 2.3 bias or prejudice in this fact pattern, but once again there is no evidence to support such a claim other than the type of chatter one often finds in magistrate court.   The prior rule requiring the avoidance of even the appearance of impropriety has been abandoned for a more definite factual finding.   This was truly a “does it stick to the wall” type of claim and it does not.   Further, the fact that the same assertions are repeated over and over again by the respondent does not lend any additional weight to his argument.

FN9. Given the number of times the exact same arguments have been offered, Magistrate Lifshitz demonstrated considerable patience and appropriate judicial demeanor in his written decision..  FN9. Given the number of times the exact same arguments have been offered, Magistrate Lifshitz demonstrated considerable patience and appropriate judicial demeanor in his written decision.

Adelman, Gerard I., J.