Ragin v. Lee, (AC 21809).

• Decision Date: 19 August 2003
• Docket Number: (AC 21809).
• Citation: 829 A.2d 93,78 Conn. App. 848
• Court: Connecticut Court of Appeals
• Parties: BRIDGET RAGIN v. DOUGLAS LEE

78 Conn. App. 848

829 A.2d 93

BRIDGET RAGIN v. DOUGLAS LEE

(AC 21809).

Appellate Court of Connecticut.

Argued March 18, 2003.

Officially released August 19, 2003.

Lavery, C. J., and Schaller and Peters, Js. Sean K. Crowshaw, for the appellant (minor child).

Ronald Blanchette, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Donald M. Longley, assistant attorney general, for the appellee (state).

Leonard I. Shankman, guardian ad litem for the minor child.

Opinion

LAVERY, C. J.

This appeal concerns the finality of an appeal from a decision of a family support magistrate and the standing of a child to file a motion to open a paternity judgment. On June 24, 1999, the commissioner of social services (commissioner) filed the underlying paternity action on behalf of the state, pursuant to General Statutes § 46b-162, seeking support for T, a minor child of Bridget Ragin.¹ The child was born out of wedlock. The commissioner brought this action because the mother and child receive state assistance. Service of the paternity action on the putative father, the defendant, Douglas Lee, was made by leaving the paternity petition, summons and order for hearing at the residence of the defendant's mother on June 19, 1999. The defendant did not appear at a hearing on August 17, 1999, but Family Support Magistrate Harris T. Lifshitz appointed an attorney as guardian ad litem and counsel for the minor child at that hearing and continued the matter to October 12, 1999. On October 12, 1999, the defendant did not appear. Magistrate Lifshitz found that there was valid abode service on the defendant and rendered a default judgment of paternity. At a hearing on November 30, 1999, the defendant appeared. He denied that he is the child's father and orally requested genetic testing to determine paternity. He also indicated that he did not live at his mother's residence. On November 30, 1999, counsel was appointed to represent the defendant, but counsel did not become aware of the appointment until June, 2000. Although counsel was appointed, the defendant has been essentially unrepresented during the underlying proceedings.

On December 10, 1999, within two months of the entry of the default judgment, counsel for the minor child as attorney and guardian ad litem, filed a motion to open the default judgment of paternity. The motion alleged that the defendant had not received actual notice of the paternity proceedings, that he was incarcerated on October 12, 1999, and that the judgment should be opened, in the best interest of the child, to eliminate any doubt as to the child's paternity.² Counsel also filed a motion for genetic testing, pursuant to General Statutes § 46b-168, arguing that it is in the best interest of the minor child to eliminate any doubt as to the child's paternity while the child is still very young and to minimize the possibility of any future dispute regarding the parentage of the child.³ The state objected to the motions, arguing that there was no final judgment from which to file a motion to open and that the child's counsel had no standing to raise the claim that there was insufficient service of process on the defendant. The state also contended that the child's counsel was present at the October 12, 1999 hearing and waived the claim by failing to object to the entry of the default. The state further argued that a claim regarding lack of notice must be raised by way of a timely motion to dismiss, which had not been filed.

On February 17, 2000, a hearing was held on the child's motion to open before Family Support Magistrate Christine Burt. Testimony by an identification records specialist from the state indicated that the defendant had been incarcerated since October 13, 1999, but there was no indication that he was incarcerated on October 12, 1999. At the hearing, there also was some discussion regarding the appointment of counsel for the defendant. Magistrate Burt found that the defendant had had a right to counsel in the paternity matter, but that at the time the request for counsel was made, the paternity determination already had been made. The magistrate assumed that the defendant was proceeding pro se at the hearing. Although the state requested that the appointment of counsel be vacated, Magistrate Burt did not specifically do so.

The child's counsel filed a request to revise the motion to open on April 19, 2000. The revised motion alleged that the defendant had not had actual notice of the hearing, and that it was in the child's best interest that the judgment be opened and genetic tests performed.

On June 13, 2000, a hearing was held before Magistrate Lifshitz on the revised motion to open. Magistrate Lifshitz took the position that the appointment of counsel for the defendant had not been vacated in the prior proceeding and that the appointment was still pending. The magistrate also indicated that he would consider the merits of the state's argument that the child's counsel lacked standing to file a motion to open before considering the merits of the motion to open. Counsel were ordered to file briefs on or before June 30, 2000. A review of the transcript of the hearing indicates that Magistrate Lifshitz did not make any decision on the child's standing or on the merits of the motion to open on the date of the hearing.⁴ On June 21, 2000, pursuant to General Statutes § 46b-231 (n), the state appealed to the Superior Court, challenging Magistrate Lifshitz' authority to continue the appointment of counsel for the father and to consider the merits of the child's motion to open.⁵ Counsel for the minor child filed in the Superior Court a motion to dismiss the appeal, arguing that there was no appealable final judgment because Magistrate Lifshitz had not yet decided any issue, including whether the child had standing to file the motion to open.

The court did not specifically rule on the motion to dismiss filed by the child.⁶ The court ordered: "The decision[s] of the family support magistrate on June 13, 2000, as set forth in the appeal petition [filed by the state], are reversed." Counsel for the child, with the consent of the child's appointed guardian ad litem, appealed to this court from the Superior Court's decision.⁷ The child contends that Magistrate Lifshitz did not render an appealable decision under the provisions of § 46b-231 (n) and that the state's appeal to the Superior Court was premature. We agree.

As a threshold matter, we set forth our standard of review. "A determination regarding a trial court's subject matter jurisdiction is a question of law. When ... the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Doe v. Roe, 246 Conn. 652, 660, 717 A.2d 706 (1998); ABB Automation, Inc. v. Zaharna, 77 Conn. App. 260, 263, 823 A.2d 340 (2003).

Turning to the merits of the child's appeal, we find that Magistrate Lifshitz did not render any decision on the merits of the child's motion to open, left the matter open for the filing of briefs by the parties and indicated that he would consider the state's claim that the child lacked standing to file the motion prior to considering the merits of the motion to open. Magistrate Lifshitz made a determination that Magistrate Burt had not vacated the appointment of counsel for the defendant, but had indicated that it was unclear whether counsel would be paid for his services.

General Statutes § 46b-231 (n) (1) permits an appeal to the Superior Court by "[a] person who is aggrieved by a final decision of a family support magistrate...." In Harvey v. Wilcox, 67 Conn. App. 1, 5, 786 A.2d 533 (2001), we noted that to determine whether a seemingly interlocutory order of a family support magistrate is nonetheless final for purposes of appeal to the Superior Court, this court applies the finality test of State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983); see also Cardona v. Negron, 53 Conn. App. 152, 155-56 n.10, 728 A.2d 1150 (1999). Under Curcio, an otherwise interlocutory order is immediately appealable when it (1) terminates a separate and distinct proceeding or (2) so concludes the rights of the parties that further proceedings cannot affect them. State v. Curcio, supra, 31.

In its petition to appeal to the Superior Court, the state alleged that Magistrate Lifshitz improperly had refused to find that the defendant was not entitled to court-appointed counsel and also improperly decided to hear the child's motion to open the paternity judgment based on insufficient service on the defendant.

The state argues that it need not await Magistrate Lifshitz' final decision on the child's motion to open before appealing to the Superior Court. It claims that the magistrate's decision to consider the merits of the child's motion to open is immediately appealable under the second prong of the Curcio test because it would not have a further opportunity to raise its position that the claim of insufficient service of process had been waived.

"The second test for finality ... focuses not on the proceedings involved, but on the potential harm to the appellant's rights. [An interlocutory order] will be deemed final for purposes of appeal only if it involves a claimed right the legal and practical value of which would be destroyed if it were not vindicated before trial . . . . The second prong of Curcio requires, therefore, the [appellants] to prove that the trial court's order threatens the preservation of a right already secured to them and that that right will be irretrievably lost and the [appellants] irreparably harmed unless they may immediately appeal." (Internal quotation marks omitted.) Rustici v. Malloy, 60 Conn. App. 47, 54-55, 758 A.2d 424, cert. denied, 254 Conn. 952, 762 A.2d 903 (2000).

The state's...