DiBerardino v. DiBerardino, 13717

• Citation: 568 A.2d 431,213 Conn. 373
• Decision Date: 02 January 1990
• Docket Number: No. 13717,13717
• Court: Connecticut Supreme Court
• Parties: Linda DiBERARDINO v. Mario DiBERARDINO.

Page 431

568 A.2d 431

213 Conn. 373

Linda DiBERARDINO v. Mario DiBERARDINO.

No. 13717.

Supreme Court of Connecticut.

Argued Nov. 7, 1989.

Decided Jan. 2, 1990.

Jeffrey D. Mickelson, East Hartford, for appellant (defendant).

Patricia Pac, Asst. Atty. Gen., with whom were Joseph X. Dumond, Jr., assistant attorney general, and, on the brief, Clarine Nardi Riddle, Atty. Gen., and Robert Statchen, Asst. Atty. Gen., for appellee (state).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and SANTANIELLO, JJ.

SHEA, Justice.

The marriage between the plaintiff, Linda DiBerardino, and the defendant, Mario DiBerardino, was dissolved on April 14, 1983, by the judgment of a state trial referee, Hon. Simon S. Cohen, exercising the powers of the Superior Court. Pursuant to the dissolution, the plaintiff was awarded custody of the couple's two children and the defendant was ordered to make periodic payments toward the children's support. On March 30, 1988, the state, on behalf of the plaintiff, filed a motion to modify support, alleging that the plaintiff was a recipient of "IV-D" ¹ services and requesting an increase in the amount of the support payments being made by the defendant. The defendant subsequently filed his own motion to modify support, seeking a reduction in the amount of his required payments. After these motions had been referred by the court, Freed, J., evidence in support of both motions was heard by Katherine Y. Hutchinson, a family support magistrate, whose findings of fact and recommendation for an increase in the amount of the defendant's support payments were approved by the court, Kline, J., on January 12, 1989. The defendant appealed to the Appellate Court and we transferred the case to our docket pursuant to Practice Book § 4023.

In his appeal, the defendant makes a wholesale constitutional attack on the validity of General Statutes § 46b-231(m)(4), a portion of the Family Support Magistrate's Act, General Statutes § 46b-231 et seq., and also takes issue with the legal and factual basis of the order increasing the amount of his support payments. We find no error.

I

The defendant makes three separate constitutional arguments challenging the validity of the Family Support Magistrate's Act. The defendant asserts that § 46b-231(m)(4): (1) violates the equal protection guarantees contained in article first, § 20 of the Connecticut constitution and the fourteenth amendment to the United States constitution, ² by making an irrational distinction between the child support modification procedures followed in IV-D and non IV-D cases; (2) violates the judicial selection provisions of article fifth, § 2 of the Connecticut constitution, ³ since motions for modification of child support orders in IV-D cases are "decided" by a family support magistrate; and (3) for the same reason, constitutes an infringement upon the power of the judiciary, in violation of article second and article fifth, § 1 of the Connecticut constitution and article III, § 1 of the United States constitution. ⁴ We decline to review the defendant's equal protection claim and conclude that the statutory procedure followed in this case did not violate any provision of our state constitution. ⁵ There is no valid federal constitutional claim raised, however, since article III, § 1 is inapplicable to state courts.

The defendant's constitutional claims were neither presented to nor considered by either the family support magistrate or the trial court. "The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial." Practice Book § 4185. We would ordinarily, therefore, decline to address any of the defendant's various constitutional arguments. Sands v. Sands, 188 Conn. 98, 106, 448 A.2d 822 (1982), cert. denied, 459 U.S. 1148, 103 S.Ct. 792, 74 L.Ed.2d 997 (1983); Burritt Mutual Savings Bank of New Britain v. Tucker, 183 Conn. 369, 377, 439 A.2d 396 (1981). "A recognized exception to this rule[, however,] is that a challenge to the jurisdiction of a court to render a judgment may be raised at any time, because the lack of subject matter jurisdiction cannot be waived. LaBow v. LaBow, 171 Conn. 433, 440, 370 A.2d 990 (1976); Connecticut Steel Co. v. National Amusements, Inc., 166 Conn. 255, 262-63, 348 A.2d 658 (1974)." Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 499, 508 A.2d 415 (1986).

Of the three separate claims set forth in the defendant's statement of the issues, only two, those addressing the appointment of judges and the power of the judiciary, bring into question "the authority of the adjudicative agency whose action was essential to rendition of the judgment." Id. For this reason, we decline to address the equal protection portion of the defendant's constitutional claims of error and turn our attention to the defendant's arguments regarding judicial power and selection. Those claims are predicated upon the defendant's assertion that the plaintiff's motion for modification was heard and ruled upon in accordance with General Statutes § 46b-231(m)(4). ⁶ Our review of the record, however, leads us to conclude that the motion in question was heard and ruled upon pursuant to General Statutes § 46b-86(c), ⁷ since the matter was "referred to the family support magistrate division for a finding of fact and report to the court." With the record in this posture we leave for another time a determination of the constitutionality of § 46b-231(m)(4) when a family support magistrate exercises greater authority, and conclude, primarily on the basis of our prior holdings in Seal Audio, Inc. v. Bozak, Inc., supra, and Monroe v. Monroe, 177 Conn. 173, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979), that § 46b-86(c) is not violative of our state constitution.

Before we address the merits of the defendant's claims, it is appropriate for us to detail both the statutory scheme under consideration, as well as the specific proceedings before the family support magistrate and the trial court. The record and transcript in this case reveal that both the parties and the trial court were somewhat daunted by the intertwining nature of § 46b-231(m)(4) of the Family Support Magistrate's Act, and § 46b-86, entitled "Modification of alimony or support orders and judgments." A thorough dissection of the various statutory provisions regarding modification of child support orders reveals that there existed, at the time the parties' motions were considered, three distinct procedures for hearing such motions. The particular procedure to be followed was dependent upon the status of the parties and the nature of the original support order.

First, § 46b-86(a) ⁸ provides that, unless modification is otherwise precluded, any final order for the payment of child support may be "altered or modified by said court upon a showing of a substantial change in the circumstances of either party." (Emphasis added.) Second, § 46b-86(c) provides that when one of the parties is receiving or has received aid from the state, as provided in title IV-A or IV-E of the Social Security Act, or has "applied" for IV-D services, a motion for modification of support payments "shall be referred to the family support magistrate division for a finding of fact and report to the court." (Emphasis added.) Finally, § 46b-231(m)(4) provides that motions for modification of support orders "entered by the superior court in IV-D cases ⁹ shall be brought in the family support magistrate division and decided by a family support magistrate." (Emphasis added.) Thus, in order to determine which procedure should be utilized in a particular case, the following relevant inquiries must be made: (1) whether the original support order was entered by the Superior Court in a IV-D case; and (2) whether either of the parties to the original order has received or applied for services as provided in § 46b-86(c). ¹⁰

The record shows that the original support order in this case was entered on April 14, 1983, and was modified on June 23, 1983, by the Superior Court, Daly, J., to allow a reduction in the defendant's support payments while the children stayed with him during the summer. From these facts, we conclude that the original support order was certainly not entered in a IV-D case, since the family support magistrate's act did not come into existence until the enactment of No. 86-359 of the 1986 Public Acts. In answer to the second question posed above, it is undisputed that the plaintiff applied for and subsequently received services provided by the Connecticut child support enforcement bureau. See General Statutes § 17-31i(h). Thus, because § 46b-86(c) is applicable and § 46b-231(m)(4) is not, the motions of both parties for modification should have been brought in the Superior Court and referred to a family support magistrate "for a finding of fact and report to the court." General Statutes § 46b-86(c). Our task now is to determine whether this procedure was indeed followed in this case.

The record reveals that the plaintiff's motion was originally directed to the family support magistrate session of the judicial district of Hartford-New Britain, and, in accordance with Practice Book § 479A, ¹¹ was captioned as a family support magistrate matter. On April 26, 1988, a hearing was held by the Superior Court, Freed, J., because of a potential conflict between the defendant's counsel and the family support magistrate who was to have conducted the hearing on the plaintiff's motion. At this hearing, the plaintiff received a copy of the defendant's motion for modification and requested that her motion for modification be referred to a different magistrate, pursuant to § 46b-231(m)(4). The transcript of this hearing reveals, however, that the referral to the magistrate was intended to be for factfinding and a report to the court, the procedure set forth in § 46b-86(c). ¹² The defendant's motion for...