Colbert v. Carr

Decision Date15 January 2013
Docket NumberNo. 33817.,33817.
Citation57 A.3d 878,140 Conn.App. 229
CourtConnecticut Court of Appeals
PartiesColleen COLBERT v. Charles N. CARR.

OPINION TEXT STARTS HERE

Richard C. Stewart, New Canaan, for the appellant (plaintiff).

Charles N. Carr, pro se, the appellee (defendant).

ALVORD, BEAR and MIHALAKOS, Js.

ALVORD, J.

The plaintiff, Colleen Colbert, appeals from the judgment rendered by the trial court in this paternity action that she brought against the defendant, Charles N. Carr. The plaintiff claims that the court improperly (1) denied her request for attorney's fees, (2) failed to award three years of child support retroactive from the date of the filing of her petition to establish paternity and (3) refused to deviate from the mandatory child support guidelines. We affirm the judgment of the trial court.

The record discloses the following facts and procedural history, either as found by the trial court or undisputed by the parties. The parties, who were never married, conceived their son in 1997, when the plaintiff was thirty-six years old and the defendant was twenty-five years old. At that time, the plaintiff was employed by a “turnaround management company.” Subsequently, from 2001 until 2010, she was employed by various pharmaceutical companies. She has three college degrees. The defendant has been a police officer since 2000. Prior to that time, he was in the military service and then was involved in the operation of an indoor shooting range in the state of Washington. 1

The parties were not living together when the plaintiff became pregnant. When she advised him of the pregnancy, he told her that he was not emotionally willing or capable of being a father at that time. She told him that she could manage on her own. Their son was born in February, 1998. The defendant saw his son a few days after his birth but chose not to establish a relationship with him.2 Nevertheless, the birth certificate lists the defendant as the father of the parties' son, and the plaintiff's verified petition for paternity alleged that the defendant “acknowledged paternity orally and in writing.” 3

A few months after the child's birth, the plaintiff contacted the defendant and indicated that she would need his financial support to raise their child. She told him the amount that she needed, and he paid her the amount requested. The defendant voluntarily continued to pay the plaintiff monthly child support in agreed upon amounts for thirteen years, i.e., continuing throughout the trial. In 2001, he procured a life insurance policy for the benefit of his son when the plaintiff voiced concerns that the defendant could be killed in the line of duty. In 2010, at the plaintiff's request, the defendant placed their son on his health insurance policy. Also in 2010, the defendant cooperated with the plaintiff in effecting a change to their son's birth certificate to correct an error in the defendant's first name. It was uncontested that the defendant never disputed nor denied that he was the father of the parties' son, that he had acknowledged paternity on multiple occasions and that he had contributed to the child's support from the time of their son's birth throughout the child's life.

On February 20, 2010, at the plaintiff's request, the defendant met with their son. Shortly after that meeting, the defendant told the plaintiff that he did not wish to maintain contact with their child. According to the plaintiff, this refusal to be a part of the child's life adversely affected their child. Approximately four months later, the plaintiff contacted an attorney. By letter dated June 28, 2010, the plaintiff's counsel advised the defendant that the plaintiff had retained his services to protect the child's “financial security by putting into place in the Connecticut court system a finding of paternity, and an order of child support.” Enclosed with the letter was a copy of the verified complaint prepared by the plaintiff's counsel, which the plaintiff's counsel stated would not be served until he had heard from the defendant or the defendant's counsel.4 The defendant contacted an attorney, who corresponded with the plaintiff's counsel.

The plaintiff commenced this action on October 26, 2010. In a one count complaint, the plaintiff alleged that (1) she gave birth to a son in February, 1998, (2) the child was conceived in May, 1997, (3) the defendant is the father of the child, (4) the defendant is named in the birth certificate and has acknowledged paternity orally and in writing, (5) the action was brought prior to the child's eighteenth birthday and (6) the case did not involve recipients of public assistance. The defendant filed his answer on October 28, 2010, two days after he had been served with process, admitting the allegations in all six paragraphs. The trial commenced on March 4, 2011, and was continued to and concluded on August 8, 2011. After the parties rested, the court rendered its judgment orally, without argument by counsel or additional briefing of the issues.

The court noted that the plaintiff brought the action pursuant to the paternity statute. See General Statutes § 46b–160. The court stated, however, that it had not been necessary to proceed under that statutory scheme: “In this case, paternity of the child is already established in that [the defendant] had acknowledged paternity at the time of, or very close to, the birth of the child [and] has continuously acknowledged that paternity.... This is the kind of action that usually commences in a [family support] magistrate's court; 5 usually a petitioner goes to the support enforcement bureau and asks that another party be required to pay child support.6 ... Based on the evidence that I've heard, I've heard no suggestion that [the defendant] was unwilling or unable to sign an acknowledgment of paternity [in accordance with General Statutes § 46b–172], making this entire proceeding unnecessary except to establish support, and there was another avenue available to do that, namely, the [family support] magistrate's court as I've indicated.”

The court then entered child support orders pursuant to the guidelines, reserved jurisdiction for the purpose of postmajority educational support, denied the plaintiff's request for three years of retroactive child support and denied the plaintiff's request for an award of attorney's fees pursuant to General Statutes § 46b–171 (a). This appeal followed.

I

The plaintiff's first claim is that the trial court improperly denied her request for an award of attorney's fees. Because she commenced this action pursuant to § 46b–160, she argues that an award of attorney's fees was mandatory rather than discretionary. It is the plaintiff's position that the defendant's acknowledgment of paternity was insufficient to preclude such an award under § 46b–171 (a) because he failed to comply with the formal requirements for acknowledgment set forth in § 46b–172.7

Section 46b–160 appears in chapter 815y of the General Statutes, which is entitled “Paternity Matters.” Chapter 815y sets forth classifications of persons and entities that may bring a statutory cause of action for paternity. Section 46b–160 (a) allows the mother of the child to bring such an action. General Statutes § 46b–162 provides in relevant part that [t]he state or any town interested in the support of a child born out of wedlock may, if the mother neglects to bring such petition, institute such proceedings against the person accused of begetting the child....” This statutory scheme pertaining to paternity actions is not, however, the exclusive way to establish paternity.8

A paternity action brought pursuant to § 46b–160 must be instituted by service of a verified petition, summons and order upon the putative father himself. “Proceedings to establish paternity of a child born or conceived out of lawful wedlock ... shall be commenced by the service on the putative father of a verified petition of the mother or expectant mother. Such petition may be brought at any time prior to the child's eighteenth birthday, provided liability for past support shall be limited to the three years next preceding the date of the filing of any such petition.” (Emphasis added.) General Statutes § 46b–160 (a)(1)(A). [B]ecause § 46b–160 is in derogation of the common law, it is to be strictly construed.” Hayes v. Smith, 194 Conn. 52, 61, 480 A.2d 425 (1984).

Section 46b–171 (a)(1)(A), which also is part of chapter 815y, provides in relevant part: “If the defendant is found to be the father of the child, the court or family support magistrate shall order the defendant to stand charged with the support and maintenance of such child, with the assistance of the mother if such mother is financially able ... and to pay a certain sum periodically until the child attains the age of eighteen years or as otherwise provided in this subsection....” Section 46b–171 (a)(1)(B) provides in relevant part: “ The court or family support magistrate shall order the defendant to pay such sum to the complainant, or, if a town or the state has paid such expense, to the town or state, as the case may be, and shall grant execution for the same and costs of suit taxed as in other civil actions, together with a reasonable attorney's fee,

and may require the defendant to become bound with sufficient surety to perform such orders for support and maintenance....” (Emphasis added.)

The plaintiff claims that the wording of 46b–171 (a) clearly required that the trial court award her reasonable attorney's fees because she commenced the action pursuant to § 46b–160 and the defendant was found to be the father of her child. She does not dispute the fact that an award of attorney's fees by the trial court would not be mandatory if she had commenced her action pursuant to General Statutes § 46b–61.9

At the time of trial, the plaintiff testified that she owed her attorney $20,994. Her attorney's affidavit, which contained an itemization...

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9 cases
  • Renstrup v. Renstrup
    • United States
    • Connecticut Court of Appeals
    • January 17, 2023
    ...been somewhat limited by the factors set forth in the child support guidelines." (Internal quotation marks omitted.) Colbert v. Carr , 140 Conn. App. 229, 240, 57 A.3d 878, cert. denied, 308 Conn. 926, 64 A.3d 333 (2013).IOn appeal, the defendant claims that the court erred in crafting its ......
  • Battistotti v. Suzanne A.
    • United States
    • Connecticut Court of Appeals
    • May 15, 2018
    ...been somewhat limited by the factors set forth in the child support guidelines." (Internal quotation marks omitted.) Colbert v. Carr , 140 Conn. App. 229, 240, 57 A.3d 878, cert. denied, 308 Conn. 926, 64 A.3d 333 (2013).IWe first address the plaintiff's claim that the court erred in failin......
  • Dowling v. Szymczak
    • United States
    • Connecticut Supreme Court
    • July 23, 2013
    ...review the propriety of an order awarding child support retroactively under an abuse of discretion standard. See Colbert v. Carr, 140 Conn.App. 229, 239, 57 A.3d 878 (2013). Whether retroactive payments must be predicated on actual costs incurred by the custodial parent is a question of law......
  • Moran v. Morneau
    • United States
    • Connecticut Court of Appeals
    • January 15, 2013
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