Sadrika Brown v. Tylon Starks (2011)

MEMORANDUM OF DECISION PETITION FOR APPEAL OF FAMILY SUPPORT MAGISTRATE DECISION DATED MARCH 17, 2011

The attorney for the minor child filed a petition in the Superior Court to review the magistrate's decision rendered by Magistrate Lifshitz dated March 3, 2011.   The decision of the magistrate was issued in two parts:  on February 3, 2011 Magistrate Lifshitz granted, in part, the defendant's motion to open and continued the hearing to March 3, 2011 for a final determination of the issues and final judgment and on March 3, 2011 Magistrate Lifshitz found the defendant not to be the father of the minor child and entered a judgment of non-paternity.

PROCEDURAL HISTORY

The following is the procedural history relevant to the appeal.

On July 18, 2008 a paternity petition was filed by the Commissioner of Social Services against the defendant as he was alleged to be the father of the minor child, Marques, born out of wedlock to Sadrika Brown, the plaintiff.

At a hearing on December 9, 2008, before Mulcahy, J.T.R., the defendant acknowledged being the father of the minor child.   During the hearing, the defendant repeatedly was asked by the court if he wanted to have the benefit of a court ordered paternity test and/or an attorney appointed for him in connection with the pending petition and the defendant repeatedly declined the same.   The court on the evidence presented found the defendant to be the father of the minor child.   The matter was continued for the defendant to perform a job search.

On February 24, 2009, a support order was entered.

On January 5, 2010, the defendant filed a motion to open judgment (104).

An attorney for the defendant was appointed and an appearance filed by the same on February 24, 2010.   On March 2, 2010, the defendant's motion to open judgment was withdrawn by the defendant.   The magistrate did not preclude the filing of another motion as the merits of the motion to open had not been reached.

On May 10, 2010, the defendant filed a motion to open judgment of paternity. (108.)  The defendant's motion set forth three grounds for opening the judgment:  fraud, mistake and the best interest of the child.

A hearing was held on the defendant's motion to open on May 27, 2010, July 22, 2010 and August 19, 2010.   On August 30, 2010, the defendant, the state and the attorney for the minor child filed a motion to re-open the evidentiary hearing due to newly discovered evidence. (122.)  The court granted the motion and a further hearing was held on September 16, 2010.

On February 3, 2011, Magistrate Lifshitz issued a Memorandum of Decision re:  Motion to Open Judgment dated January 31, 2011. (137.)  In such memorandum the court granted the motion to open.   The case was then continued to March 3, 2010 for a de novo hearing on the initial paternity petition.   On March 3, 2011 a judgment of non-paternity was issued.

On March 18, 2011, the minor child filed the appeal from the decision of the magistrate.   On April 12, 2011 the defendant filed an objection to the appeal. (139.)

FACTUAL FINDINGS

The defendant claims he acknowledged being the father of Marques before the court because he believed the plaintiff as she had consistently told him he was the father.   During the hearing, the plaintiff testified the defendant was the father and that she had no doubt of such fact.   As it turns out, that is not correct.

The defendant upon being advised that another male could have fathered the child filed the initial motion to open.   After discussions ensued between the defendant's counsel and the attorney for the minor child, the motion was withdrawn.   The defendant then obtained genetic testing from the laboratory generally used to perform court ordered genetic tests (LabCorp).   The test excluded the defendant.   The subsequent motion to open judgment was filed.   At a contested hearing telephonic testimony from an expert at LabCorp was admitted over the objection of the minor child.¹

The plaintiff, the state and the attorney for the minor child opposed the defendant's motion to open arguing the defendant fully participated in the paternity trial and knowingly and repeatedly waived his right to genetic testing and for an attorney.   They also argue the defendant has formed a bond, albeit a weak bond, with the child and it would therefore be in the child's best interest to deny the motion.

The plaintiff had subsequently determined another male could be the father of the minor child and she named Jerome Harris as a potential biological progenitor.   She testified she was intimate with him only one time.

The defendant's attorney and the attorney of the minor child being quite familiar with Harris joined with the state and filed the motion to re-open evidence.   As Harris has additional files in magistrate court, counsel was aware of the existence of DNA testing for Harris in such other files.   With the court's permission, such DNA information was sent to LabCorp and tested against the DNA of the minor child.   Lo and behold, Harris was determined to be the father.

At the hearing on September 16, 2010 Harris testified he had sex with the plaintiff on more than one occasion during the operative period and he admitted to being the father of Marques.

Despite a biological father being identified, the plaintiff, the state and the minor child continued to object to the opening of the judgment of paternity of the defendant.   They argue that Harris has several paternity judgments and support orders against him which would limit his ability to support Marques.   Further, they continue to argue that it is in the best interest of the child to maintain the defendant as the legal father of the child.   Lastly, they, justifiably, express a concern about the precedent that may be set by allowing the defendant to open the judgment after he voluntarily acknowledged paternity.

ANALYSIS AND FURTHER FACTUAL FINDINGS

“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)(1).   The court will first determine whether the magistrate's decision in this case presents a judgment or decision from which an appeal can be taken.  “The two part test for aggrievement by a particular decision is well established.   First, the person claiming to be aggrieved must have a specific, personal and legal interest in the subject matter of the decision, as distinguished from the general interest of the community as a whole.   Second, the person must establish that his or her interest has been specially and injuriously affected by the decision.”   Newman v. Newman, 235 Conn. 82, 103, 663 A.2d 980 (1995).   The court finds the decision of the magistrate is such that an appeal may be taken therefrom and further finds the minor child is aggrieved for the purposes of this appeal.

General Statutes § 46b–231(n)(7) provides that “[t]he Superior Court may affirm the decision of the family support magistrate or remand it for further proceedings.   The Superior Court may reverse or modify a 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 minor child appeals the decision of the family support magistrate on the ground that the magistrate's erred in admitting DNA evidence to be introduced after the defendant knowingly waived a genetic test before the court.   The minor child further claims the defendant's motion should be barred by laches.   Lastly the claim is the magistrate superseded the authority of the court by not recognizing the finality of judgments.   The court does not agree.

The court may open a judgment notwithstanding the untimely filing of a motion in accordance with common-law principles.  “It is a well established general rule that even a judgment rendered by the court ․ can subsequently be opened [after the four month limitation] ․ if it is shown that the judgment, was obtained by fraud ․ or because of mutual mistake.”  (Internal quotation marks omitted;  citation omitted.)  In re Jonathan M., 255 Conn. 208, 238 (2001).  “Courts have intrinsic powers, independent of statutory provisions authorizing the opening of judgments, to vacate any judgment obtained by fraud, duress or mutual mistake.”  (Citations omitted.)  In re Baby Girl B., 224 Conn. 263, 283 (1992).

Connecticut statutory laws and case law generally limit the ability of a respondent to open a judgment of paternity if judgment was entered by default or through a voluntary acknowledgment.   Pursuant to Connecticut General Statutes § 46b–172 an acknowledgment of paternity may be challenged in court or before a family support magistrate after the statutory sixty-day rescission period only on the basis of fraud, duress or material mistake of fact.   Although the judgment was not entered by default and defendant did not execute an acknowledgment of paternity, the language of General Statute § 46b–172 may be instructive and assist in determining what constitutes a mistake for purposes of opening a judgment.   The statute includes a provision that evidence the acknowledged father is not biological father may be considered in determining if there has been a material mistake of fact.

As to the claim the court erred in admitting the DNA evidence, the court questions the claim being made by the attorney for the minor child at all—since he, and the state, joined in the hunt for the DNA evidence of Harris.   In any event, the court finds the magistrate did not err in admitting the DNA evidence of the defendant as the magistrate found, after reviewing the transcript of the December 9, 2008 hearing, that the defendant waived a “court ordered” DNA test.   The DNA test was admitted, after a proper foundation was laid, and given appropriate weight, as determined by the magistrate in his sole discretion.   The magistrate admitted the DNA results for the defendant and for Harris in connection with the defendant's claim that a mistake occurred sufficient to permit the opening of the judgment of paternity.

The magistrate considered the evidence presented over the several days of hearing and determined the defendant met his burden and found the paternity judgment was infected by mistake.²

The attorney for the minor child argues that even if a mistake of fact existed, laches should bar the opening of the paternity judgment because the delay was inexcusable and the child's legal interests have been prejudiced.   “Laches consists of an inexcusable delay which prejudices the defendant ․ First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant.”  (Internal quotation marks omitted.)  Kalinowski v. Kropelnicki, 92 Conn.App. 344, 352, 885 A.2d 194 (2005).   The magistrate, in a footnote, found the motion was not barred by laches.   Once the defendant learned another male was possibly the father, he obtained genetic tests.   Once the tests showed he was not the father, he timely filed this motion to open the judgment of paternity.   Further, as found by the magistrate, the child's legal interests have not been prejudiced.   Consequently, laches does not bar the opening of this judgment.

The attorney for the minor child argues that it is not in the child's best interest to open this paternity judgment.  “[A] child's interest in establishing paternity is a fundamental state and federal constitutional liberty interest.   The common law recognizes this right and the judicial system must afford the child an opportunity to exercise and protect her interest ․” (Internal quotation marks omitted.)   Andrews–White v. Mitchell, Superior Court, judicial district of Hartford–New Britain, No. FA 95 0710468S (November 13, 1995) (15 Conn. L. Rptr. 629, 630).  “Any determination that a particular individual is a child's biological father may have profound sociological and psychological ramifications ․ It is in the child's interest not only to have it adjudicated that some man is his or her father and thus liable for support, but to have some assurance that the correct person has been so identified.”   (Emphasis in original;  internal quotation marks omitted.)  Ragin v. Lee, 78 Conn.App. 848, 861–62, 829 A.2d 93 (2003).

In a Superior Court case, the court upheld a decision of the magistrate court opening a voluntary judgment of paternity based on the child's independent right to know.   Commissioner of Social Services (Breault) v. Mercure, Superior Court, Judicial District of Windham at Putnam, Docket No., FA 92–0043326, Driscoll, J. (October 29, 2004).   A judgment of paternity that had been entered eleven years earlier was opened by a Superior Court to allow the father to contest paternity.   Johnston v. Domina, Judicial District of Hartford at Hartford, Docket No. FA 88–0340848, Dranginis, J. (September 24, 1998).

It is essential that any court consider the effect on a child of the granting of a motion to open, the ordering of a paternity test and/or reaching a finding that there is not a biological relationship between an adjudged parent and a child.   Transcripts of the testimony before the magistrate and his resulting decision reflect his consideration of the relationship between the defendant and the minor child.   The magistrate was not convinced the defendant is “the better father candidate.”  (Memorandum of Decision filed February 3, 2011, page 14.)   Harris, despite having substantial support obligations was employed at the time of the hearing and noted to have earning capacity to equal or exceed the defendant's.   Further, the magistrate was not convinced the defendant would act as an “adequate psychological father” after learning he is not the father.

The magistrate found the opening of the judgment of paternity not to be clearly detrimental to the child's best interests.   The court is a reviewing court and will not retry the facts found by the magistrate;  the decision is adequately supported by the record.

The judgments of our courts must make sense.   The attorney for the minor child asks the court to respect the finality of judgments yet apparently offered no objection to the motion for paternity testing of Harris, which had the potential of disrupting the judgment of paternity entered in the magistrate court in 2008 for the defendant.

The trier of fact, the magistrate, has discretion in evaluating the testimony of witnesses and in giving weight to the evidence produced at the hearing.   Evidence of non paternity can be determinative in deciding whether to open a judgment, (e.g. pursuant to General Statute § 46b–172(a)(2)), and, as such, opening the judgment based on conclusive proof of nonpaternity was not beyond the magistrate's discretion.   The magistrate found that the evidence before the court was sufficient to conclude that a material mistake of fact occurred when the court entered the paternity judgment against the defendant.   Given the circumstances of this case, overturning the magistrate's decision would cause the court to indulge in a legal fiction that serves no purpose other than to continue the financial obligations of the defendant.

Upon review, this Court finds that the magistrate has not abused his discretion nor has acted in an arbitrary or unreasonable manner.   The analysis of the applicable law by the magistrate was well reasoned and the record is adequate to support his findings and ruling under the circumstances of this case.

This appeal by the minor child is hereby dismissed.

SO ORDERED.

BY THE COURT,

Olear, J.

FOOTNOTES

FN1. Oddly the attorney for the minor child in questioning the exclusion of the defendant on the basis of his DNA discussed with the expert from the lab the existence of chimeras and the resultant effect on DNA testing—there was no evidence offered the defendant is a chimera..  FN1. Oddly the attorney for the minor child in questioning the exclusion of the defendant on the basis of his DNA discussed with the expert from the lab the existence of chimeras and the resultant effect on DNA testing—there was no evidence offered the defendant is a chimera.

FN2. The magistrate also determined the defendant did not meet his burden of proving fraud as a basis to open the judgment..  FN2. The magistrate also determined the defendant did not meet his burden of proving fraud as a basis to open the judgment.

Olear, Leslie I., J.