Commissioner of Social Services et al. v. Aaron Lewis (2013)

MEMORANDUM OF DECISION ON APPEAL FROM FAMILY SUPPORT MAGISTRATE

Before the court is defendant's appeal (103.40) filed August 20, 2012 and a Motion to Correct the Petition in Appeal (108) filed October 19, 2012 from an August 6, 2012 decision of the Family Support Magistrate (Lifshitz, Family Support Magistrate Referee).   In the petition on appeal, the defendant asserts the Magistrate abused his discretion in ordering the respondent, who is blind and an “SSD recipient” to pay support, plus reasonable and necessary employment-related child care expenses and unreimbursed medical expenses, without any basis in fact, law or evidence, because the magistrate (i) failed to credit and allow in evidence of all receipts produced in response to subpoena;  (ii) failed to understand testimony to the effect that the defendant was able only to produce receipts because he had no profit and loss statement for his non-profit entities;  and (iii) awarded a high support award despite no evidence produced by the plaintiff of defendant's alleged earnings of $1,705 per week.

The motion to correct the petition was filed to reflect the amount of the defendant's alleged earnings as being $470 a week in lieu of $1,705 a week.

The defendant filed an Amended Statement of Issues (115) submitting additional issues to be considered on appeal, to wit:  (1) if the magistrate abused his discretion and improperly applied the law in entering the child support order by failing to consider and apply the terms of the parties' May 16, 2008 separation agreement;  (2) if the magistrate abused his discretion and improperly applied the law in entering the support order by failing to acknowledge the “nationwide body of law regarding disposition of frozen embryos”;  (3) if the magistrate violated the defendant's State and Federal constitutional rights in entering a support order.

The defendant filed a memorandum of law in support of his appeal (116).   The plaintiff filed a brief requesting the denial of the defendant's appeal (which was filed under docket number HHD–FA07–4032572–S as document 143).   The defendant filed a motion to strike which was granted by agreement and the plaintiff filed a corrected brief on October 11, 2013.

I

AUTHORITY ON APPEAL

General Statutes § 46b–231(n)(1) provides that a person who is aggrieved by a final decision of a family support magistrate may obtain judicial review by way of appeal.   Any such appeal must be filed not later than fourteen days following the date of the decision.   The appeal has been timely filed and the defendant has standing to bring this appeal.

Subsection (5) of § 46b–231(n) permits a party to apply for leave to introduce additional evidence, but no such application was made.   Accordingly, this court decides this appeal on the strengths of the parties' briefs and their arguments on October 3, 2013 and the court's review of the entire record, including a transcript of the hearing in question.

Subsection (7) of § 46b–231(n) provides that the court may reverse or modify the decision of the magistrate if substantial rights of the appellant have been prejudiced because the decision of the 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.

Since the magistrate's actions were based on conclusions of law alleged to be in error, the Superior Court has plenary review of the matter to decide if such conclusion was supported by the record and correct as a matter of law.   See, e.g., Cottman Transmission Systems, Inc. v. Hocap Corp., 71 Conn.App. 632, 635–37 (2002).

As a preliminary matter, motion 108 is granted and the petition for appeal amended thereby.

II

PROCEDURAL HISTORY

The marriage of the plaintiff [mother] and the defendant [father] was dissolved by the Superior Court, Brennan, J.T.R., on May 16, 2008.   The judgment of dissolution incorporated by reference an agreement of the parties (the agreement) which included a provision that the parties agreed to destroy embryos created and stored during the marriage.   The plaintiff caused herself to be implanted with an embryo after the dissolution and a child was born on March 30, 2009.   An acknowledgement of paternity was signed by both parties at the Superior Court for Juvenile Matters on May 29, 2009.

The State of Connecticut on behalf of the plaintiff commenced a support action by filing a support petition dated April 29, 2011 seeking an order for child support against the defendant.

On March 5, 2012, a motion for contempt was filed by the defendant (as the plaintiff) in the Superior Court, pursuant to which the defendant father claims the plaintiff mother is in contempt of the dissolution judgment by virtue of the implantation of an embryo which led to the birth of the child.

After several continuances, and without the motion for contempt having been resolved, the support case came before Magistrate Lifshitz on March 29, 2012.

The magistrate in a ruling from the bench denied requests made by the defendant and the attorney/guardian ad litem for the child for a further continuance and denied permission for the State to withdraw the support petition.   The court further overruled the objection from the State that it had authority to withdraw a case;  see footnote 2 of the magistrate's well-reasoned decision General Statutes § 46b–170.

III

CLAIMS ON APPEAL

The court considers whether the magistrate's findings as to factual matters were reasonably supported by the evidence adduced at the hearing;  Perry v. Perry, 222 Conn. 799 (1992).  “․ [I]t is the duty of the family support magistrate, as the trier of fact, to consider all of the testimony and exhibits presented at hearing, and to determine what evidence he believed, and what evidence he did not believe.   This court cannot substitute its judgment for that of the family support magistrate concerning the credibility of the evidentiary offers made at the ․ hearing”;  Stone v. Stone, Judicial District of Tolland, FA 01–0075720S (2005) (Dyer, J.).

A. As to the Initial Claims on Appeal

This court cannot conclude that the magistrate's findings regarding defendant's earnings were clearly erroneous.   As the magistrate noted “all counsel were impeded in their efforts to get appropriate evidence of the defendant's alleged income” before the court.   Some of the difficulty was due to the nature of the defendant's disability—he is blind as a result of a gunshot wound suffered several years ago.   The court rightfully gave the defendant latitude in this regard.   The court further gave the defendant latitude based on the claim by the defendant that his “allegedly small non-profit company did not customarily keep formal and organized records.”   The court however found that “none of this excused the tardy, incomplete and self-serving disclosure that was finally afforded, nor to the cavalier brushing aside of lawful subpoenas.”

The court drew an adverse inference from the defendant's failure to disclose and produce requested documents, the violation of subpoenas and the failure of witnesses to appear after being served with lawfully issued subpoenas.

The court found the (i) defendant's testimony to be “self-serving, evasive and occasionally deceptive” and (ii) defendant to have the propensity to intermingle his personal finances with those of his non-profit organizations.

The court made an initial finding of the defendant's income to be $452 a week gross and $430 a week net on March 29, 2012.   The court provided the parties with an opportunity to challenge the preliminary findings on the continuation date of the hearing on April 26, 2012.   The defendant produced some additional documents, but continued his pattern of evasiveness and non-disclosure.

Upon the conclusion of the continued hearing, the magistrate, after careful consideration of the credible facts, found the defendant's net weekly earnings, including social security disability (SSD) and in-kind benefits, equaled $470 a week.   The magistrate confirmed his findings of the plaintiff's net income as being $1,116.

The magistrate, based on the child support guidelines (guidelines), found the presumptive child support payable by the defendant to equal $83.57 a week.   After deducting the weekly SSD dependency benefit (which is received by the child) of $63.23 a week, the net weekly child support payable by the defendant was determined to be $20.34.   The court found a monthly payment based thereon to be $88 and ordered the same without any deviation.

The defendant's allocable share of unreimbursed medical and dental expenses, in accordance with the guidelines was determined to be 23% and the magistrate ordered the defendant to pay the same, again without deviation.

The court finds that the factual findings as to the defendant's earnings and the determination of the child support payable by him were more than reasonably supported by the evidence and the reasonable inferences drawn by the magistrate and are not clearly erroneous in view of the reliable, probative and substantial evidence on the whole of the record nor were they arbitrary or capricious or characterized by an abuse of discretion.

B. As to the Amended Statement of Issues

1. The magistrate considered and rejected the claim raised by the defendant that a child support order should not be entered against the defendant by reason of the agreement of the parties to destroy the embryos.

The magistrate made the following findings:  “The dissolution stands on its own merits.” ¹  If mother's actions warrant a finding of contempt, the superior court will find it and impose what remedy it sees fit, “[b]ut that's got nothing to do with the rights of the child to support ․” ² “No matter ․ however heinous ․ the contempt may have been on the part of the plaintiff, there's a child here.” ³  The contempt has “nothing to do with the right of the child to support.” ⁴  He concluded that “any contumacious conduct by the plaintiff mother could not vitiate the child's independent right to support” and “[s]imply put, the fact that one of the parties allegedly violated the judgment has no bearing on the child's right to support.” ⁵

The magistrate properly determined that his decision to require the defendant father to pay support does not diminish any relief that may be afforded to the defendant if the plaintiff is found to be in contempt for willful violation of the terms of the judgment.

The enforcement of the terms of the judgment was not before the magistrate.

The magistrate further considered the fact that the defendant signed an acknowledgment of paternity and thereby assumed the obligation to support the child.   The defendant did not raise before the magistrate any claim that the acknowledgment was signed under duress.

The court does not accept the argument of the defendant that signing the acknowledgement is a “red herring.”   The defendant freely acknowledges that he is the biological father of the child and avers that, if he had declined to sign the acknowledgement, a DNA test would establish his biological paternity and the end result would have been a judgment of paternity and a finding of an obligation to support.

Perhaps. Perhaps not.

The defendant did not refuse to sign the form.   He was represented by counsel at the juvenile court proceeding and his counsel took his acknowledgement on the form.   There is no evidence that he took any steps to disavow his obligation to support the child—until he was served with the support petition.

A person may challenge an acknowledgment of paternity if that person has not received the proper notice of the legal consequences and financial obligations of signing it.⁶

General Statutes § 46b–172(a)(2), in relevant part, provides the mother and acknowledged father of a child the right to rescind an acknowledgment of paternity within the earlier of (A) sixty days or (B) the date of an agreement to support such child approved under § 46b–172(b) or an order of support for such child entered in a proceeding conducted under § 46b–172(c).

“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 punctuation and 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).

By signing the acknowledgment of paternity, and failing to endeavor to rescind the same in accordance with the procedures available to him, he consented to an order of support.   And the magistrate so found.

2. The magistrate's research concluded that there are no Connecticut cases that deal with the failure of a parent to dispose of frozen embryos and a subsequent order of support being entered against a “non-consenting” biological parent.   The parties agree.

In Connecticut there is a specific statutory provision that excludes a sperm donor from an obligation of support, however, at this time there are no statutes that relieve a parent of a child conceived through in vitro fertilization (IVF) from the duty to support.⁷

The magistrate found and relied upon a body of law recognizing that in the absence of statutory authority it is in the best interest of the child to be supported by both parents.

The magistrate further found that the trend in sister states suggests a disinclination to disqualify an eligible parent from a duty to support.   He specifically noted that a number of jurisdictions have held that in the absence of statutorily required written consent, the best interest of children and society are served by recognizing that parental responsibility may be imposed based on conduct evincing actual consent to the artificial insemination procedure.⁸

The defendant's brief includes references to several cases from sister states that address the enforceability of an order to destroy embryos.   That may be.   That issue, however, was not before the magistrate.

The defendant further states that the American Bar Association Model Act Governing Assisted Reproductive Technology February 2008, 42 Family L.Q. 171 Section 501(3)(b)(2008) (the Model Act), provides that “[i]n the event that a transfer [of an embryo] occurs after receipt of notice in a record of that individual's intent to avoid gestation ․ that intended parent will not be the parent of a resulting child.”

The defendant properly points out that Connecticut has, in other instances, enacted legislation in substantial conformity with other model acts.   The legislature has not done so, at least not yet, in this regard.

The defendant and the plaintiff did agree in their dissolution agreement that the parties would destroy the embryos (emphasis added).   They did not.

Further, the magistrate found that although the dissolution judgment required the destruction of the embryos, the defendant signed a prior consent for the IVF and then after the child was born, volitionally signed the acknowledgment of paternity and therefore the defendant “essentially sandwiched the dissolution order with both prior and subsequent consent recognizing the subject child.” ⁹

The magistrate found that by his actions, the defendant consented to the procreation of a child and that the case law recognizes that children have a right to be supported by their progenitors.

The court finds the magistrate thoroughly and properly analyzed the issue raised on appeal and rejected the same.   In making his orders he did not abuse his discretion or improperly apply the law.

3. The constitutional right to privacy includes the right of a person to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person such as “whether to bear or beget a child.”  Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).   The Supreme Court of Tennessee used a “balancing of the parties' interests” test in a dispute over custody of frozen embryos and concluded that the party who did not want the embryos to be used in any way had a more significant interest than the party who wanted to donate the embryos to another person.  Davis v. Davis, 842 S.W.2d 588, 603–4 (Tenn., 1992).

The court agrees that a person who is forced to be a parent would have the ability to raise a question of the constitutionality of a subsequent order of child support against such person.   That is not the case here—as found by the magistrate.

The magistrate, as found above, determined the defendant manifested his consent by his actual conduct.   There was no credible evidence before the magistrate that the defendant was forced to be a parent.   There is therefore no violation of the defendant's federal or state constitutional rights.

It is not the provenance of this court to engage in an academic or theoretical discussion of an interesting issue.  “[C]ourts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law ․” State v. T.D., 286 Conn. 353, 366–67 (2008).

IV

CONCLUSION AND ORDER

This court is charged with a plenary review of the magistrate's decision and finds that the magistrate did not abuse his discretion, or act arbitrarily or in an unreasonable manner.   The analysis of the applicable law by the magistrate was well reasoned and the record is adequate to support his findings and rulings under the circumstances of this case.   The magistrate did not improperly apply the law by entering a child support order payable by the defendant for the benefit of his child.

The magistrate's orders are affirmed in all respects.

This appeal by the respondent is hereby dismissed.

SO ORDERED.

BY THE COURT,

Olear, J.

FOOTNOTES

FN1. Transcript of hearing March 29, 2012, p. 2 lines 19–20..  FN1. Transcript of hearing March 29, 2012, p. 2 lines 19–20.

FN2. Id., page 2 lines 25–27..  FN2. Id., page 2 lines 25–27.

FN3. Id., page 11, lines 10–13..  FN3. Id., page 11, lines 10–13.

FN4. Id., page 11, lines 7–8..  FN4. Id., page 11, lines 7–8.

FN5. Memorandum of decision, unnumbered page 3..  FN5. Memorandum of decision, unnumbered page 3.

FN6. Opplet v. Opplet, Superior Court, judicial district of Hartford, docket No. FA09–4047137–S (Sep. 21, 2011) (2011 Ct.Sup. 20082) (Olear, J.)..  FN6. Opplet v. Opplet, Superior Court, judicial district of Hartford, docket No. FA09–4047137–S (Sep. 21, 2011) (2011 Ct.Sup. 20082) (Olear, J.).

FN7. See General Statute Sec. 45a–775 which provides that “[a]n identified or anonymous donor of sperm or eggs used in A.I.D., or any person claiming by or through such donor, shall not have any right or interest in any child born as a result of A.I.D. [artificial insemination with donor sperm or eggs].”.  FN7. See General Statute Sec. 45a–775 which provides that “[a]n identified or anonymous donor of sperm or eggs used in A.I.D., or any person claiming by or through such donor, shall not have any right or interest in any child born as a result of A.I.D. [artificial insemination with donor sperm or eggs].”

FN8. Memorandum of Decision, unnumbered page 4, wherein Magistrate Lifshitz cites a string of cases that are set forth in Laura WW. v. Peter WW., 51 A.D.3d 211, 216, 856 N.Y.S.2d 258 (3d Dept.2008).   In the Laura WW. case, the parties had separated, while the wife was pregnant with a child conceived through artificial insemination, pursuant to an agreement which provided that the husband would not be financially responsible for the child.   The court held the provision in the separation was void as against public policy and imposed a support order against the husband.   The trial court was affirmed on appeal..  FN8. Memorandum of Decision, unnumbered page 4, wherein Magistrate Lifshitz cites a string of cases that are set forth in Laura WW. v. Peter WW., 51 A.D.3d 211, 216, 856 N.Y.S.2d 258 (3d Dept.2008).   In the Laura WW. case, the parties had separated, while the wife was pregnant with a child conceived through artificial insemination, pursuant to an agreement which provided that the husband would not be financially responsible for the child.   The court held the provision in the separation was void as against public policy and imposed a support order against the husband.   The trial court was affirmed on appeal.

FN9. Memorandum of Decision, unnumbered page 5..  FN9. Memorandum of Decision, unnumbered page 5.

Olear, Leslie I., J.