IN RE: Yadirah F.-S. (2011)

MEMORANDUM OF DECISION

This case is an appeal on behalf of the State of Connecticut, by and through the Commissioner of the Department of Social Services (the state) from the October 7, 2010 decision of the Court of Probate, District of Hartford (Killian, J.), granting a claim for paternity filed by appellee Antonio F. to have himself determined the father of a minor child, Yadirah F–S.,¹ pursuant to General Statutes § 46b–172a.   The state is a party to the case because the state provided the child with various forms of state assistance for brief periods of time in 2002 and 2010.²

When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate ․ In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common-law jurisdiction, but of a Probate Court.  Kerin v. Stangle, 209 Conn. 260, 263–64, 550 A.2d 1069 (1988).   Unless the Probate Court made a record of the probate proceeding, the function of the Superior Court in appeals from a Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo.   Baskin's Appeal from Probate, 194 Conn. 635, 641, 484 A.2d 934 (1984).   Thereafter, upon “consideration of all evidence presented on the appeal which would have been admissible in the probate court, the superior court should exercise the same power of judgment which the probate court possessed and decide the appeal as an original proposition unfettered by, and ignoring, the result reached in the probate court.”  Andrews v. Gorby, 237 Conn. 12, 16, 675 A.2d 449 (1996);  Prince v. Sheffield, 158 Conn. 286, 298, 259 A.2d 621 (1969).

However, the mere taking of an appeal from a probate decree does not in and of itself vacate or suspend the decree.   As noted in Livingston's Appeal from Probate, 63 Conn. 68, 75, 26 A. 470 (1893), “[i]f the appeal had been withdrawn or dismissed in the Superior Court ․ the [probate] decree would have remained valid ․” But once the appellate tribunal, i.e., the Superior Court, otherwise determines and either modifies or sets aside the decree of the Probate Court, the probate decree is superseded.  Kerin v. Stangle, supra, 209 Conn. 265;  Satti v. Rago, 186 Conn. 36a, 365, 44 A.2d 615 (1982).

Without a withdrawal or a dismissal of the appeal, logic requires that the Superior Court determination on the probate appeal supersede the decree of the Probate Court.  “Otherwise, there would arise the incongruous situation of the simultaneous existence of two valid judgments on the same issue ․” Kerin v. Stengle, supra, 209 Conn. 266.

The existence of two valid judgments on the same issue, the paternity of Yadirah S–F., is what led to the state's filing of this appeal.

The court finds that there is no material dispute as to the operative facts presented by the parties to this appeal.   For the purpose of this decision, those facts are restated below.

Antonio F. filed his paternity claim on or about June 25, 2010 in the Hartford Probate Court.   In response to that claim, the state appeared and filed a written objection to the application on August 11, 2010, informing the Probate Court that it lacked subject matter jurisdiction and authority to act as a consequence of a pre-existing judgment of paternity as to the child, achieved as the result of the execution of an acknowledgment of paternity.   Margarita S. and Jorge Luis D. signed an acknowledgment of paternity on March 22, 1996, which complied with all provisions of General Statutes § 46b–172(a) (formerly § 52–442a), and was duly executed, signed and recorded in the Superior Court at Windham under Docket Number WWM–FA96–005299–S on March 23, 1996.³  Jorge Luis D., however, was never subject to any court order to pay any child support to Margarita S. or the state.   Notwithstanding the state's objection that the court lacked subject matter jurisdiction and authority to act,⁴ the Probate Court, on August 12, 2010, ordered DNA testing, which it found established with medical certainty that Antonio F. was the father of Yadirah.   On October 7, 2010, the Probate Court declared Antonio F. to be the father, with rights and responsibilities equivalent to the mother.   In addition, the probate court ordered that “[t]he Department of Health Services, Vital Records Section, conform the birth certificate in accordance with the findings of this Court by removing Jorge Luis D. as the father and adding Antonio F., in place, and change the minor's name to Yadirah Marline F.-S.”

The state filed this appeal and alleges it is aggrieved by the orders and decree of the Probate Court in that the Probate Court acted beyond its jurisdiction and authority in adjudicating paternity of the child at a time when a valid judgment of paternity already existed.   The state further claims the decree incorrectly interprets General Statutes § 46b–172a, and improperly adds Antonio F. and removes Jorge D. from the birth certificate.   The right to appeal from a probate court decree is statutorily conferred by General Statutes § 45a–186.   The state was appropriately aggrieved by the decree of the probate court and has standing to appeal to this court by filing a complaint.   In filing its complaint, the state properly served and noticed Antonio F., Maria S., and Jorge Luis D. Antonio F. and Maria S. appeared and were appointed counsel in the interest of justice pursuant to General Statutes § 46b–136.   The court also appointed counsel for Yadirah D., who attained the age of majority during the pendency of this appeal.   Jorge Luis D. did not appear.

A properly executed acknowledgement of paternity in the format prescribed by General Statutes § 46b–172 has the same force and effect as a judgment of the superior court on the paternity issue.   At any later date it may only be challenged upon a showing of fraud, duress, or material mistake of fact by the filing of a motion to open the judgment.

In Bleidner v. Searles, 19 Conn.App. 76, 561 A.2d 954 (1989) the court discussed the predecessor to today's statute and discerned within it a clear legislative preference for the finality of judgment of paternity.   It noted:  “ ․ the acknowledgment procedure provides an alternative to a full scale judicial proceeding, and an agreement reached pursuant to it does not require court approval ․ Once a person signs a written acknowledgment form, that form has ‘the same force and effect as a judgment of the court ․’ [T]hat judgment is res judicata and is reviewable by the court only through a petition and hearing on that issue filed within three years of the entry of the judgment.”   Id., 81.   The decision upheld the trial court's denial of a petition for a new trial brought more than three years after the acknowledgment had been signed.

Later, in Cardona v. Negron, 53 Conn.App. 152, 728 A.2d 150 (1999), the court followed that precedent and deemed it to be error for a family support magistrate to order genetic testing to determine paternity when a properly executed and filed acknowledgment existed in the absence of proof that fraud, duress or mutual mistake had led to its original determination.  “These cases have been so consistently followed by trial judges and family support magistrates that the matter may be described now as axiomatic and requiring no further discussion.”   Worthy v. Wyatt, Superior Court, judicial district of New London at Norwich, Docket No. KNO FA–04 0129531 S (December 6, 2005, Boland, J.) [40 Conn. L. Rptr. 379].

However, in reviewing the above cases prohibiting a reconsideration of the issue of paternity absent the opening of the judgment created by the filing of a paternity acknowledgment, the court notes that the party seeking to void the original judgment, in all of these cases, is an original signatory to the acknowledgment.   Essentially, one of the signatories is seeking to be reheard on the issue of paternity.   The doctrine of res judicata, although required to be recognized in General Statutes § 46b–172, does not apply to Antonio F. as it would apply to Jorge Luis D. if the latter were the person seeking to void the 1996 judgment created by the acknowledgment.   The doctrine of res judicata provides that “a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action [between the same parties ] on the same claim ․ To determine whether two claims are the same for purposes of res judicata, we compare the pleadings and judgment in the first action with the complaint in the subsequent action ․ The judicial [doctrine] of res judicata ․ [is] based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate.”   (Citations omitted;  internal quotation marks omitted;  emphasis added.)   Barton v. City of Norwalk, 131 Conn.App. 719, 727, 27 A.3d 513 (2011).   If the state wishes to contest a similar Probate Court action in the future, it should perhaps consider the applicability of a doctrine other than res judicata.   See, e.g. Mancuso v. Dorsey, Superior Court, judicial district of New Haven at Meriden, Docket No. CV89–023398 (March 5, 1990, McWeeny, J.) (denying third party's request for paternity testing of a 22–month–old child on equitable estoppel grounds after another man acknowledged paternity);  Aetna Casualty and Surety Company v. Jones, 220 Conn. 285, 596 A.2d 414 (1991) (doctrine of non-mutual collateral estoppel barred defendant from relitigating whether insured's wife's death was intentionally caused by insured since identical issue of insured's intent to cause wife's death was decided by his conviction of murder at his criminal trial);  State v. Satti, 38 Conn.Sup. 552, 560, 454 A.2d 280 (1982) (doctrine of stare decisis requires all tribunals exercising inferior jurisdiction to follow decisions of court's exercising superior jurisdiction).

Fortunately, in this case, a solution was found that will avoid the necessity of addressing the issue of whether the Probate Court acted lawfully in proceeding on Antonio F.'s paternity claim when it knew of the existence of the prior judgment.

On April 8, 2011, Antonio F., mother, Margarita S., the child's attorney and the assistant attorney general appeared and agreed that if the judgment created by the execution and filing of the acknowledgement in 1996 could be opened and vacated, and the acknowledgment rescinded, the probate decree determining “indisputably” that Antonio F. is Yadirah's biological father could stand.⁵  Counsel for mother thereafter filed a motion to open the 1996 paternity judgment pursuant to Practice Book 24A–11 to challenge the legitimacy of the acknowledgment, and thereafter filed a motion for consolidation and transfer of venue for her motion to open the judgment from the judicial district of Windham to this court, which this court granted on May 5, 2011.   Subsequently, Jorge Luis D. was duly served with the motion to open by publication ordered by this court, as receipt for certified mail notice of the motion to open, sent to his last known address, was never acknowledged.

On September 30, 2011, this court heard and granted mother's motion to open the judgment created by the filed paternity acknowledgment on the stipulated ground of mutual mistake by Margarita S. and Jorge Luis D. at the time said acknowledgment was signed since DNA testing has unequivocally established that Antonio F. is Yadirah's biological father.  “A judgment rendered may be opened after the four month limitation if it is shown that the judgment was obtained by fraud, in the absence of actual consent, or because of mutual mistake.”   Richards v. Richards, 78 Conn.App. 734, 739, 829 A.2d 60 (2003).   Consequently, the court vacated the judgment of paternity and rescinded the acknowledgment.

Accordingly, the decision of the probate court stands as the issue of the Probate Court's failure to defer to the prior judgment of paternity has been resolved on the basis of this court's granting mother's motion to open and rescinding the paternity acknowledgment she executed with Jorge Luis D. The appeal is dismissed by agreement.   Fortunately, the parties to the appeal were reasonable in their approach to the resolution of the problem of conflicting judgments which gave a child two legal fathers.

KELLER, J.

FOOTNOTES

FN1. The Probate Court also granted a request to change the minor child's name from Yadirah D. to Yadirah F–S., the latter surname being a combination of the mother and Antonio F.'s surnames.   See General Statutes § 45a–99..  FN1. The Probate Court also granted a request to change the minor child's name from Yadirah D. to Yadirah F–S., the latter surname being a combination of the mother and Antonio F.'s surnames.   See General Statutes § 45a–99.

FN2. Yadirah S.-F. turned eighteen on March 6, 2011..  FN2. Yadirah S.-F. turned eighteen on March 6, 2011.

FN3. Prior to the establishment of the paternity registry in the Department of Public Health, executed paternity acknowledgments were filed in court..  FN3. Prior to the establishment of the paternity registry in the Department of Public Health, executed paternity acknowledgments were filed in court.

FN4. Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it.   A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it.  Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979).  “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.”  (Citations omitted;  internal quotation marks omitted.)  Ragin v. Lee, 78 Conn.App. 848, 863–64, 829 A.2d 93 (2003).   See Eubanks v. Moss, Superior Court, family support magistrate division, judicial district of Fairfield at Bridgeport, Docket No. FBTFA880246900 (February 28, 2010, Lfshitz, F.S.M.)..  FN4. Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it.   A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it.  Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979).  “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.”  (Citations omitted;  internal quotation marks omitted.)  Ragin v. Lee, 78 Conn.App. 848, 863–64, 829 A.2d 93 (2003).   See Eubanks v. Moss, Superior Court, family support magistrate division, judicial district of Fairfield at Bridgeport, Docket No. FBTFA880246900 (February 28, 2010, Lfshitz, F.S.M.).

FN5. This agreement was also premised on the fact that Antonio F. had developed a relationship with Yadirah, and mother and Yadirah supported his efforts to legally be declared her father..  FN5. This agreement was also premised on the fact that Antonio F. had developed a relationship with Yadirah, and mother and Yadirah supported his efforts to legally be declared her father.

Keller, Christine E., J.