Newman v. Newman

• Decision Date: 15 August 1995
• Docket Number: No. 15069,15069
• Citation: 663 A.2d 980,235 Conn. 82
• Court: Connecticut Supreme Court
• Parties: Johanna C. NEWMAN v. Fred M. NEWMAN.

Page 980

663 A.2d 980

235 Conn. 82

Johanna C. NEWMAN v. Fred M. NEWMAN.

No. 15069.

Supreme Court of Connecticut.

Argued April 25, 1995.

Decided Aug. 15, 1995.

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

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

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and KATZ, JJ.

BORDEN, Associate Justice.

The sole issue in this certified appeal is whether, in a marriage dissolution case, minor children who are represented by an attorney appointed by the trial court pursuant to General Statutes § 46b-54, ¹ but not by a guardian ad litem or next friend, may appeal from a judgment of the trial court concerning the support obligations of the children's parents. ² The minor children appeal, following our grant of certification, ³ from the judgment of the Appellate Court dismissing their appeal from the judgment of the trial court, which had modified the support obligation of the defendant, who is the father of the minor children, to zero dollars. The Appellate Court dismissed the appeal because it concluded that the attorney for the minor children could not prosecute the appeal on behalf of the children. We conclude that, under certain limited circumstances outlined herein, minor children may appeal from such a trial court judgment. Accordingly, we reverse the judgment of the Appellate Court, and remand the case for further proceedings for the trial court to determine whether those circumstances are present in this case.

The prior procedural history and facts are undisputed. The plaintiff, Johanna C. Newman, ⁴ and the defendant, Fred M. Newman, who were married in 1981, have two minor children, a daughter born on August 16, 1983, and a son born on May 20, 1987.

In September, 1991, the plaintiff brought this dissolution action, and the defendant filed a cross complaint, both claiming custody of the children, support, alimony and a property distribution. In March, 1992, attorney Sharon Wicks Dornfeld was appointed by the court pursuant to § 46b-54; see footnote 1; to represent the minor children. In March, 1993, the trial court, Hon. T. Clark Hull, state trial referee, after what it described as an "almost incredibly bitter battle between the parties," rendered a judgment dissolving their marriage. In addition to orders of property distribution and nominal alimony to be paid by the defendant to the plaintiff, the court awarded custody of the minor children to the plaintiff, with certain visitation rights in the defendant. The plaintiff was permitted to move with the children to North Carolina. The court also ordered the defendant to pay child support for the two children in the amount of $300 per week.

Thereafter, in September, 1993, the defendant filed a motion to modify the judgment by reducing the amount of child support "in accordance with the child support guidelines presently in effect, and in accordance with his income." ⁵ The basis of the motion was that, on or about July 31, 1993, he had lost his only source of income, a consulting position, and that, although he had applied for unemployment benefits, he had not received confirmation that he would be awarded any such benefits.

The defendant's motion for modification was heard by the trial court, Mihalakos, J., on November 15, 1993. The plaintiff's counsel represented to the court that the plaintiff was residing in North Carolina, that he had explained to her by telephone the previous week that the matter would proceed, that the plaintiff was "without funds ... to come to Connecticut to defend" against the motion, and that "apparently we are going to have to proceed in her absence." Moreover, the plaintiff's counsel informed the court that he did not have a financial affidavit of the plaintiff, and that he did not know what she was earning because he had "not ask[ed] her." When the defendant's counsel represented to the court that the defendant was relying on the fact that, although he then was receiving unemployment compensation, he was "not working at all," and that the defendant did not rely at all for his motion on "any of [the plaintiff's] income," the trial court instructed the defendant to proceed.

The defendant testified that he had lost his last job at the end of July, and that he was receiving $325 per week as unemployment compensation from the state of New Jersey. He also testified that, because he had suffered a heart attack on October 17, 1993, on his physician's advice he had not sought employment since he had been released from the hospital approximately two weeks earlier. After cross-examination by the plaintiff's counsel, the trial court found, from the defendant's financial affidavit, that he had a net weekly income of approximately $150. ⁶ Applying the child support guidelines, the court granted the defendant's motion, reducing his support obligation to zero dollars.

At that point, the children's counsel sought to be heard regarding the support obligation. The court denied her request. ⁷ The children did not seek, through their counsel, the appointment of a guardian ad litem for purposes of taking an appeal, nor did their counsel take an appeal as their next friend. Instead, the minor children, represented by Dornfeld, appealed from the modification of the judgment to the Appellate Court, claiming that the trial court had improperly: (1) refused to permit the children's attorney to participate in the hearing; and (2) failed to consider certain statutory criteria regarding support for minor children.

The Appellate Court ultimately dismissed the minor children's appeal, on the ground that the "appeal, brought in the name of the minor children, without a next friend or the appointment of a guardian ad litem, is improper." ⁸ Newman v. Newman, 35 Conn.App. 449, 453, 646 A.2d 885 (1994). Reasoning that, although the lack of a guardian ad litem or next friend for purposes of a minor child's appeal is an amendable and waivable irregularity, the irregularity neither had been cured by amendment nor waived by the defendant in this case. Id., at 453-54, 646 A.2d 885. Thus, the court concluded that "this appeal has not been brought properly because court-appointed counsel cannot prosecute this appeal on behalf of the children." Id., at 455, 646 A.2d 885. Accordingly, the court dismissed the appeal. Id.

We granted the minor children's petition for certification, limited to the following issue: "Did the Appellate Court properly conclude that minor children, acting through counsel appointed pursuant to General Statutes § 46b-54 and not through a guardian ad litem or next friend, lack standing to appeal from a trial court's order regarding their support?" Newman v. Newman, 231 Conn. 928, 648 A.2d 879 (1994). This appeal followed.

We note, initially, that our phrasing of this certified question was improper. The Appellate Court did not conclude that the minor children lacked standing to appeal. ⁹ Although lack of standing, and thus lack of subject matter jurisdiction, had been one of the bases of the defendant's motion to dismiss, it was not the basis of the Appellate Court's dismissal. Because on certification our focus is generally on the judgment of the Appellate Court; see State v. Gilbert, 229 Conn. 228, 246, 640 A.2d 61 (1994); we rephrase the certified question as follows: "Did the Appellate Court properly conclude that an appeal by minor children, acting through counsel appointed pursuant to § 46b-54 and not through a guardian ad litem or next friend, is improper and is thus subject to dismissal?"

The minor children raise several closely related arguments in support of their right to appeal in their own name. First, they argue that "[t]here is ample precedent in Connecticut for considering children to be 'parties' in proceedings affecting their custody and care." They point to certain statutes, which provide for the protection of children's interests; see, e.g., General Statutes § 46b-56(b) (requiring court, in making or modifying any order with respect to custody or visitation, to consider wishes of child, if child is of sufficient age and capable of forming intelligent preference); General Statutes § 46b-57 (requiring court, in making any order granting custody to third party, to consider the wishes of child, if child is of sufficient age and capable of forming intelligent preference); General Statutes § 46b-55(b) (child, or his representative, born during marriage but not issue of marriage may bring paternity action); General Statutes § 46b-37 (joint duty of each spouse to support his or her family); General Statutes § 46b-84 (following annulment or dissolution of marriage, parents of minor child shall maintain child according to their respective abilities, if child is in need of maintenance); General Statutes § 46b-215(a) (child can bring petition for orders of support); General Statutes § 46b-54(a) (court may appoint counsel to represent minor children in dissolution action); and General Statutes § 46b-54(c), the statute pursuant to which Dornfeld was appointed in this case; and certain of our precedents; see, e.g., Nye v. Marcus, 198 Conn. 138, 502 A.2d 869 (1985); Guille v. Guille, 196 Conn. 260, 492 A.2d 175 (1985); Salvio v. Salvio, 186 Conn. 311, 441 A.2d 190 (1982); Yontef v. Yontef 185 Conn. 275, 440 A.2d 899 (1981); as evidence of legislative and judicial recognition "that children who are the subject of contested family relations matters have separate interests in the proceeding which are directly affected and to which injury may result."

Second, the minor children argue that they are aggrieved by the trial court's decision in two ways. They are statutorily aggrieved, they assert, because they have a statutory right to be supported by both parents pursuant to §§ 46b-37 ¹⁰ and 46b-84, ¹¹ and the trial court's decision deprives them of their right to be supported by the defendant,...