Newman v. Newman

• Decision Date: 04 October 1994
• Docket Number: No. 13088,13088
• Citation: 35 Conn.App. 449,646 A.2d 885
• Court: Connecticut Court of Appeals
• Parties: Johanna C. NEWMAN v. Fred M. NEWMAN.

Page 885

646 A.2d 885

35 Conn.App. 449

Johanna C. NEWMAN v. Fred M. NEWMAN.

No. 13088.

Appellate Court of Connecticut.

Argued June 2, 1994.

Decided Aug. 16, 1994.

Certification Granted Limited to the Following Issue Oct. 4, 1994.

Sharon Wicks Dornfeld, Danbury, for appellants (minor children).

William B. Barnes, with whom, on the brief, was Sheila K. Rosenstein, Fairfield, for appellee (defendant).

Before FOTI, LANDAU and SCHALLER, JJ.

FOTI, Judge.

This appeal arises out of a prolonged and acrimonious dissolution proceeding. During that proceeding, the plaintiff requested that counsel be appointed for the two minor children, one born in 1983, and the other born in 1987. Attorney Sharon Dornfeld was so appointed pursuant to General Statutes § 46b-54. On March 26, 1993, judgment was rendered dissolving the parties' marriage. The plaintiff was granted sole custody of the children and permission to relocate to North Carolina. The defendant was ordered to pay $300 per week in child support. Other financial and property orders were also entered by the trial court.

In September, 1993, the defendant, claiming to have lost his job on July 31, 1993, filed a motion seeking modification of the order of child support. No objection to this motion was filed. No motion was filed requesting that the minor children be permitted to intervene as parties either in the prior dissolution proceeding or in this postjudgment modification of support proceeding. On November 15, 1993, the trial court granted the defendant's motion, ordering that the child support be reduced to zero. The order was made retroactive to September 16, 1993.

Counsel for the children appealed on December 6, 1993, challenging the granting of the defendant's motion for modification of child support. The minor children, through counsel, claim that the trial court improperly (1) refused to permit their counsel to participate in the defendant's modification hearing, and (2) failed to consider the proper statutory criteria.

As a preliminary matter, we must determine whether this appeal is properly before us as brought by counsel for the minor children, acting only in that capacity and not as a guardian ad litem or a next friend. On January 26, 1994, the defendant moved to dismiss the appeal claiming that this court lacked subject matter jurisdiction. He contended that the minor children lacked standing to appeal, as they were not parties to the dissolution action and that, due to their status as minors, they could appeal only through a guardian or next friend. ¹ On February 15, 1994, counsel for the minor children filed an untimely objection to the motion to dismiss. The defendant's motion to dismiss was denied without prejudice to being raised at oral argument. The parties were ordered to file supplemental briefs and to be prepared to argue the question of standing.

Limitations and restrictions often may be imposed on the activities of minor children because of their lack of mature judgment. Children, like incompetents, ² do not have the legal capacity to bring actions in their own names, but may do so only through an authorized representative. "The law does not deprive a person adjudicated incompetent of access to the courts ... rather, provision is made to ensure that such interests are well represented." Cottrell v. Connecticut Bank & Trust Co., 175 Conn. 257, 261, 398 A.2d 307 (1978). "[T]he purpose of providing representation is to ensure that the legal disability imposed will not undermine adequate protection of a ward's interest." Id., at 264, 398 A.2d 307.

In the context of a dissolution proceeding, the interests of minor children may be protected pursuant to General Statutes § 46b-54(a), which states, "[t]he court may appoint counsel for any minor child or children of either or both parties at any time after the return day of a complaint under section 46b-45, if the court deems it to be in the best interests of the child or children." Once appointed, counsel for the child or children "shall be heard on all matters pertaining to the interests of any child, including the custody, care, support, education and visitation of the child, so long as the court deems such representation to be in the best interests of the child." General Statutes § 46b-54(c). It is not disputed that the interests of the children are represented by appointed counsel at the discretion of the trial court.

The minor children, while claiming an independent interest in the order granting child support, can point to no authority that would permit them to prosecute this action in their own names, without either the appointment of a guardian ad litem, or through a next friend or prochein ami. "It is well established that a child may bring a civil action only by a guardian or next friend...." Orsi v. Senatore, 230 Conn. 459, 466, 645 A.2d 986 (1994). Actions and appeals may be commenced by an infant only by a guardian ad litem or by a next friend. Williams v. Cleaveland, 76 Conn. 426, 432, 56 A. 850 (1904).

Counsel for the minor children concedes that she was never appointed as guardian ad litem for the children pursuant to General Statutes § 45a-132, ³ nor did she commence this appeal, or declare her intention to appear and prosecute this appeal as a next friend of the children. To serve as next friend, "no previous appointment by the court is required, and the prochein ami named in the writ is permitted to appear and prosecute in the infant's name, though if [the next friend] is not a proper person or fails to properly discharge his duties, the court may remove him and appoint another person in his place." McCarrick v. Kealy, 70 Conn. 642, 646, 40 A. 603 (1898). Without a clear expression of the capacity in which counsel for the minor children initiates the action, her fitness in that role cannot be properly determined. The role of counsel for the child, in some circumstances, may be incompatible with that of guardian ad litem or next friend. Counsel for the minor children admits that the best interests of the child may sometimes conflict with the expressed wishes of the child, which the child's attorney, as a zealous advocate, would probably be bound to pursue. ⁴ This appeal, brought in the name of the minor children, without a next friend or the appointment of a guardian ad litem, is improper.

We note that the bringing of an action for the minor child without the aid of a next friend or guardian ad litem is "an amendable irregularity which could be waived." Collins v. York, 159 Conn. 150, 154, 267 A.2d 668 (1970). The defendant in this case, however, has not waived his objection. In addition, "[a] litigant cannot wholly ignore established procedures for the protection of [its] rights ... and hope to receive on appeal the same treatment accorded to those who follow the rules of practice." (Internal quotation marks omitted.) Rostenberg-Doern Co. v. Weiner, 17 Conn.App. 294, 302, 552 A.2d 827 (1989). We will not "entirely disregard the established rules of procedure, adherence to which is necessary so that the parties may know their rights and the real issues in controversy may be presented and determined." (Emphasis added.) Cersosimo v. Cersosimo, 188 Conn. 385, 393, 449 A.2d 1026 (1982). The record does not suggest any consideration that would require us to disregard the procedural...