Hayes v. Smith

Decision Date24 July 1984
CourtConnecticut Supreme Court
PartiesJune M. HAYES et al. v. Lillian M. SMITH, Administratrix (Estate of Gary Ernest Smith).

Irving Spiro, Norwich, for appellants (plaintiffs).

Peter W. Rotella, New London, with whom, on the brief, was A.A. Washton, New London, for appellee (defendant).

Before SPEZIALE, C.J., and PETERS, ARTHUR H. HEALEY, PARSKEY and SHEA, JJ.

ARTHUR H. HEALEY, Justice.

This action to determine paternity was brought by verified petition dated February 26, 1982, pursuant to General Statutes § 46b-160. 1 The plaintiff, June M. Hayes, alleged that she had been a single woman for more than one year prior to the action; that on January 28, 1982, she had given birth to a child, Perry Allyn Hayes, who was conceived on or about April 17, 1981, fathered by Gary Ernest Smith, who has since died; and that on December 15, 1981, Lillian M. Smith qualified as administratrix of his estate in the Probate Court for the district of New London.

The administratrix filed a motion to dismiss the action pursuant to Practice Book §§ 142 and 143(1), maintaining that the Superior Court lacked jurisdiction because the paternity action was brought against the defendant as the administratrix of the alleged father's estate and, since a paternity action does not survive the death of the alleged father, it cannot lie against the personal representative of his estate. Shortly thereafter, the plaintiff sought to amend her prayers for relief to seek only an establishment of paternity and the issuance of "such orders as will charge the Estate with the legal rights of [the] child...." The court granted the motion to dismiss and this appeal followed. 2

In its decision on the motion to dismiss, the trial court described the issues to be whether Connecticut statutes require a determination of paternity during the lifetime of the putative father, and if such a determination is required, whether that requirement passes constitutional muster. In concluding affirmatively in each instance, it found the language of § 46b-160 plain and unambiguous in providing that a summons be issued to the "putative father" to appear in court to show cause why the prayer of the plaintiff's petition should not be granted. The court decided that because this statute was in derogation of the common law, it was therefore required to be strictly construed. It also noted that § 46b-160 contained no express provision for survival of the action after the death of the putative father. The trial court pointed out that courts in other jurisdictions have held that where the putative father dies before a paternity action is brought, the action does not survive even where there is a general statute providing for the survival of actions. In that regard, it observed that our general survival of actions statute; General Statutes § 52-599; 3 contained no clause that could arguably "save" this action. The trial court stated that some other courts have held that a general statute for survival of actions does not affect a statutory right of action because the saving clause that permits survival must be contained in the statute itself. Eschewing what it regarded as the plaintiff's invitation to legislate judicially, it found that under Connecticut law, "an action to determine paternity does not survive the death of the putative father and that such an action may not be maintained against his estate."

The plaintiff claimed below that it was necessary to construe § 46b-160 to allow commencement of the paternity suit against the putative father's estate in order for her to establish paternity under § 45-274(b) 4 and that to construe the statute otherwise denied her child equal protection of the laws. In rejecting this claim, the trial court referred to the recent United States Supreme Court cases of Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978), and Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), and concluded that the Connecticut statutory requirement that paternity actions be commenced before the death of the putative father passed constitutional muster because the statutory classification was substantially related to legitimate state interests. The court determined that such state purposes included "its interest in the reliability of the fact-finding process, in preventing spurious claims and in preventing the decedents' estates from being placed at an unreasonable disadvantage in defending paternity claims." We find no error.

On appeal, the plaintiff claims that the "only method" of establishing paternity by a court of competent jurisdiction is that "mandated" by § 46b-160. 5 The plaintiff seems to argue that while the first part of § 46b-160, which requires that a paternity action must be instituted by verified petition, is substantive, the balance of that statute is procedural and will not bar the action in this case. She maintains that by virtue of the 1978 amendment to § 45-274 6 "the means of establishing paternity have been enlarged to include proceedings in the Estate of the deceased [alleged] father that are now IN REM ..." and not in personam proceedings. She asserts that her paternity claim in this case "impinge[d] upon [a] 'court of competent jurisdiction' " under § 45-274(b). Additionally, she claims that the issue of paternity survives the putative father's death and does not come within the exception in the survival statute, i.e., § 52-599. To hold that the death of the putative father bars the paternity action would, she asserts, deprive the child of the right of establishing paternity through this mother, thus contravening the child's right to equal protection of the laws and due process of law under both the United States and Connecticut constitutions.

In turning to the plaintiff's claims on statutory construction, we recognize certain settled tenets of statutory construction. "A cardinal rule of statutory construction is to construe statutes in a manner which gives effect to the apparent intention of the legislature. Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 6, 434 A.2d 293 (1980)(citations omitted). 'It has often been said that the legislative intent is to be found not in what the legislature meant to say, but in the meaning of what it did say. Wiegand v. Heffernan, 170 Conn. 567, 581, 368 A.2d 103 (1976); Colli v. Real Estate Commission, 169 Conn. 445, 452, 364 A.2d 167 (1975); Sillman v. Sillman, 168 Conn. 144, 148, 358 A.2d 150 (1975).' Muha v. United Oil Co., 180 Conn. 720, 730, 433 A.2d 1009 (1980). Where the language used is clear and unambiguous, we will not speculate as to some supposed intention. Robinson v. Unemployment Security Board of Review, supra.... Further, in construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous. State v. Grant, 176 Conn. 17, 20, 404 A.2d 873 (1978); Catino v. Board of Education, 174 Conn. 414, 418, 389 A.2d 754 (1978)." Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., Inc., 193 Conn. 208, 231-32, 477 A.2d 988 (1984). "[I]n the absence of ambiguity, courts cannot read into statutes, by construction, provisions which are not clearly stated; Point O'Woods Assn., Inc. v. Zoning Board of Appeals, 178 Conn. 364, 366, 423 A.2d 90 (1979); but must ascribe plain and ordinary meaning to the language used. Mazur v. Blum, 184 Conn. 116, 118, 441 A.2d 65 (1981); Jones v. Civil Service Commission, 175 Conn. 504, 509, 400 A.2d 721 (1978). A legislative act must be read as a whole and 'construed to give effect and to harmonize all of its parts.' Eighth Utilities District v. Manchester, 176 Conn. 43, 50, 404 A.2d 898 (1978)." Finkenstein v. Administrator, 192 Conn. 104, 110, 470 A.2d 1196 (1984).

An examination of § 46b-160 demonstrates that the paternity action must be instituted by service of a verified petition, summons and order upon the putative father himself. This statute provides in part: "Proceedings to establish paternity of a child born or conceived out of lawful wedlock, including one born to, or conceived by, a married woman but begotten by a man other than her husband, shall be instituted by a verified petition of the mother or expectant mother, with summons and order, filed in the superior court for the geographical area in which either she or the putative father resides.... Upon the filing of such petition, said court or any judge assigned to said court shall cause a summons, signed by him or by the clerk or assistant clerk of said court, to be issued, requiring the putative father to appear in court at a time and place named therein to show cause, if any he has, why the prayer of such petition should not be granted." (Emphasis added.) The word "shall" refers not only to the method of instituting the action, but also to the summons to be served on the putative father concerning his required court appearance to answer the petition. That the ordinary mandatory meaning to be given to the term "shall" was intended is amply supported by the fact that the term "may," which is ordinarily directory, is also used several times in the same statute. The use of such terms, which "evidences [an] affirmative selectivity of terms with [the] specific intent to be distinctive in meaning ... must then be assumed to have been used with discrimination and a full awareness of the difference in their ordinary meanings." Jones v. Civil Service Commission, 175 Conn. 504, 509, 400 A.2d 721 (1978), and cases there cited.

Moreover, § 46b-160 provides that the verified petition which may be brought by either "the mother or expectant mother" shall be filed in the Superior Court for the geographical area in which either "she or the putative father resides." (Emphasis added.) The mandate that the putative father shall be summoned "to appear" to answer the petition further...

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