Jennifer Mathis v. Anthony Thomas (2011)

MEMORANDUM OF DECISION

This matter comes before the court as an appeal from a family support magistrate matter heard on January 21, 2011.   The defendant has filed a motion to modify child support on October 13, 2010 (docket item # 123.00).   That matter was heard on November 5, 2010 (Oliveira, FSM).  The defendant did not have a completed financial affidavit and reported that he was having difficulty obtaining supporting documentation.   He requested a continuance and the request was honored allowing the defendant to pick one out of three possible dates in January.   He selected January 21, 2011.

On that date he appeared in court (Dee, FSM).  The court noted that the matter had been continued to the present at the request of the defendant to obtain tax records or other proof on income.   The defendant requested another continuance representing to the court that he was a self-employed electrician who worked exclusively for one contractor and he was still having a problem getting the correct information from that individual.   The court denied that request noting that the defendant had been given two months at his request to gather the appropriate information to proceed on his motion.   The motion was marked off.   The magistrate indicated that the defendant could re-file the motion when the necessary documentation was available to him.   The defendant filed the present appeal on February 4, 2011.

Review of a magistrate's orders by the Superior Court is available to any party who is “aggrieved by a final decision of a family support magistrate” and who files an appeal within fourteen days after said decision is entered.   Section 46b–231(n)(1) and (2).   The first question for the court to consider is whether or not the defendant has been so aggrieved.

The court can reasonably assume that the defendant might argue that he was aggrieved by his motion being marked off because he was not able to obtain the remedy he was seeking, i.e., a lower child support order.¹  Such an argument would not be persuasive as it was the defendant who was not prepared to proceed and asked for a continuance.

Perhaps the defendant was aggrieved because if he had to re-file the motion, his ability to obtain retroactive relief would be limited to the new filing date and not be retroactive back to the October 13, 2010 original filing date.   This would also not be persuasive.   The magistrate ordered the motion to modify “marked off”;  the motion was not denied.   He does refer to the motion being re-filed “[w]hen you have your paperwork together ․” and under the provisions of the Connecticut Practice Book § 25a–13 the defendant certainly had the right to reclaim his motion.   Even in the event that a future magistrate might consider the original motion to modify to be stale and require a new motion to be filed, it is clear from the record that the defendant was not prepared to go forward that day and wanted the matter to be continued yet again.

The defendant was not “aggrieved by a final decision” based on the proceedings which took place on January 21, 2011 because there was no “final decision” issued on that date.

The defendant's appeal is dismissed for lack of subject matter jurisdiction under the provisions of § 46b–231(n)(1) of the Connecticut General Statutes, as amended.

SO ORDERED.

BY THE COURT,

Adelman, J.

FOOTNOTES

FN1. No specific explanation as to why the appeal was taken was made by the defendant other than what is written on the appeal form.   At the short calendar appearance on June 23, 2011, the defendant simply stated that the magistrate had refused to review his tax information even though an earlier magistrate had directed him to obtain that information.   This defendant's recitation of the events of the January 21, 2011 hearing before the magistrate is not consistent with the proceedings as reported in the transcript.   The court is giving the defendant, who is representing himself, the benefit of the doubt by supposing possible rationales for the appeal..  FN1. No specific explanation as to why the appeal was taken was made by the defendant other than what is written on the appeal form.   At the short calendar appearance on June 23, 2011, the defendant simply stated that the magistrate had refused to review his tax information even though an earlier magistrate had directed him to obtain that information.   This defendant's recitation of the events of the January 21, 2011 hearing before the magistrate is not consistent with the proceedings as reported in the transcript.   The court is giving the defendant, who is representing himself, the benefit of the doubt by supposing possible rationales for the appeal.

Adelman, Gerard I., J.