Alison Vagnone v. Don L. Vagnone (2011)

MEMORANDUM OF DECISION

This matter arises from a dissolution action filed on August 31, 2005.   On June 15, 2011, the plaintiff, Alison Vagnone ¹ , pursuant to General Statutes §§ 46b–84(c) and 46b–86(a), moved for a modification of the Separation Agreement entered into between her and the defendant, Don Vagnone, as a consequence of their divorce.   At the time the motion was filed, the plaintiff had primary physical custody of the couple's child, Natalie, and the defendant was required to pay child support in the amount of $133 per week.

The plaintiff asked the court to modify and extend the current child support order for Natalie until she turns twenty-one.   The minor child, Natalie, is intellectually disabled.   She is eighteen and is a recent high school graduate.   According to her most recent psycho-educational evaluation, Natalie's intellectual ability is below the standard score of fifty-one.

In response to the plaintiff's request, the defendant files this motion to dismiss, arguing that this court “does not have jurisdiction” to modify the plaintiff's motion.   The plaintiff objects.

The existence of subject matter jurisdiction is strongly presumed.   Williams v. Commission on Human Rights and Opportunities, 257 Conn. 258, 266, 777 A.2d 645 (2001).   Whether or not subject matter exists rests on the “authority of a court to adjudicate the type of controversy presented by the action before it.”  (Emphasis in original.)  Olympus Healthcare Group, Inc. v. Muller, 88 Conn.App. 296, 300, 870 A.2d 1091 (2005).

There is a distinction between statutory jurisdiction and subject matter jurisdiction, and our Supreme Court has rejected any equivalence between the two.   See Amodio v. Amodio, 247 Conn. 724, 728, 724 A.2d 1084 (1999).   “Although related, the court's authority to act pursuant to a statute is different from its subject matter jurisdiction.   The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute.”  (Internal quotation marks omitted.)  In re Matthew F., 297 Conn. 673, 689, 4 A.3d 248 (2010), quoting Bailey v. Mars, 138 Conn. 593, 601, 87 A.2d 388 (1952).  “Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action.”  Craig v. Benson, 202 Conn. 93, 101, 520 A.2d 155 (1987).

This court has the statutory authority to hear the plaintiff's motion for modification of child support payments concerning Natalie, an intellectually disabled child.   Pursuant to General Statutes § 46b–1, a trial court has subject matter jurisdiction over all family law matters.  Section 46b–1(12) states that this jurisdiction extends to “all rights and remedies provided for in chapter 815j.”   Specifically to this case, Section 46b–84(c) states that a trial court can hear child support issues involving children who are mentally retarded or mentally or physically disabled and who reside with a parent and are principally dependent on them.²  Furthermore, § 46b–86(a) states that a trial court can hear motions for modifications of child support where there has been a “substantial change” in the circumstances of the parties.³

Sections 46b–84(c) and 46b–86(a) fall within the ambit of chapter 815j of the General Statutes and confer authority on this court to hear the type of case that the plaintiff presents.   Therefore, the court has the requisite jurisdiction to hear the plaintiff's motion.   See Amodio v. Amodio, supra, 247 Conn. 731 (“the trial court unquestionably has the power to hear and determine any modification issue”).

The court rejects the defendant's claim and finds that the current child support order shall remain in effect at least until Natalie attains the age of twenty-one.   The defendant's motion to dismiss is denied.   Counsel fees in the amount of $500 are awarded to the plaintiff.

So ordered,

OWENS, J.T.R.

FOOTNOTES

FN1. The plaintiff remarried and is now Alison Henry..  FN1. The plaintiff remarried and is now Alison Henry.

FN2. In full, § 46b–84(c) states that, “[t]he court may make appropriate orders of child support of any child with mental retardation, as defined in section 1–1g, or a mental disability, as defined in subdivision (15) of section 46a–51, who resides with a parent and is principally dependent upon such parent for maintenance until such child attains the age of twenty-one.   The child support guidelines established pursuant to section 46b–215a shall not apply to orders entered under this subsection.   The provisions of this subsection shall apply only in cases where the decree of dissolution of marriage, legal separation or annulment is entered on or after October 1, 1997, or where the initial support orders in actions not claiming any such decree are entered on or after October 1, 1997.”.  FN2. In full, § 46b–84(c) states that, “[t]he court may make appropriate orders of child support of any child with mental retardation, as defined in section 1–1g, or a mental disability, as defined in subdivision (15) of section 46a–51, who resides with a parent and is principally dependent upon such parent for maintenance until such child attains the age of twenty-one.   The child support guidelines established pursuant to section 46b–215a shall not apply to orders entered under this subsection.   The provisions of this subsection shall apply only in cases where the decree of dissolution of marriage, legal separation or annulment is entered on or after October 1, 1997, or where the initial support orders in actions not claiming any such decree are entered on or after October 1, 1997.”

FN3. In relevant part, § 46b–86(a) states that “[u]nless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support, an order for alimony or support pendente lite or an order requiring either party to maintain life insurance for the other party or a minor child of the parties may, at any time thereafter, be continued, set aside, altered or modified by the court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to Section 46b–215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate ․”.  FN3. In relevant part, § 46b–86(a) states that “[u]nless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support, an order for alimony or support pendente lite or an order requiring either party to maintain life insurance for the other party or a minor child of the parties may, at any time thereafter, be continued, set aside, altered or modified by the court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to Section 46b–215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate ․”

Owens, Howard T., J.T.R.