Robertson v. Apuzzo

• Citation: 170 Conn. 367,365 A.2d 824
• Court: Supreme Court of Connecticut
• Decision Date: 16 March 1976
• Parties: Sharon Anne ROBERTSON v. Robert APUZZO.

Page 824

365 A.2d 824

170 Conn. 367

Sharon Anne ROBERTSON v. Robert APUZZO.

Supreme Court of Connecticut.

March 16, 1976.

Certiorari Denied Oct. 4, 1976. See 97 S.Ct. 142.

Francis X. Dineen, New Haven, with whom was Joanne S. Faulkner, New Haven, for appellant (defendant).

Michael A. Arcari, Asst. Atty. Gen., with whom, on the brief was Carl R. Ajello, Atty. Gen., Hartford, for appellee (plaintiff).

Before HOUSE, C.J., and LOISELLE, BOGDANSKI, LONGO and MacDONALD, JJ. HOUSE, Chief Justice.

This action was instituted by the plaintiff, Sharon Anne Robertson, an unmarried woman, by a verified petition dated March 17, 1970, and filed in the Circuit Court alleging that the defendant, Robert Apuzzo, was the father of her child. See 1967 Public Act No. 520, § 1: 'An Act Concerning Paternity Actions Commenced During Pregnancy.' The defendant, by way of answer, pleaded not guilty. He thereupon filed a claim for a jury of twelve, pursuant to the provisions of § 52-438 of the General Statutes as it then read. ¹ He also filed a motion that the court determine that there was no fee required for a jury in his case or in the alternative that the court waive payment of the $100 jury fee required to be paid by any party claiming a jury of twelve in any civil action by the provisions of § 52-258 of the General Statutes as then in effect (1967 Public Act No. 628, § 2). ² With his motion, he filed a financial affidavit which recited that he had no assets, that for the prior six weeks he had been employed with a band from which his income averaged $59 a week, that 'he has had to make numerous expenditures for food, clothing, and traveling expenses incident to said employment,' and that during this time he had been trying to save toward the $75 cost of blood grouping tests, which sum he had not as yet been able to raise. The motion was denied by the court (Levister, J.) on September 30, 1970, without memorandum of decision or any indication of reasons for the denial.

The issues on the merits were then tried to the court which found for the plaintiff, adjudged the defendant to be the father of the child and ordered him to pay to the plaintiff the sum of $13 per week for the current support of the child, plus $5 per week to be applied to the judgment sum of $1625.

The defendant appealed to the Appellate Division of the Circuit Court, including in his assignments of error the denial of his motion relative to the jury fee, the denial of his motion for a mistrial, and the denial of his motion that the court correct its findings to include the facts recited in the defendant's financial affidavit. The trial court made no finding disclosing the reasons for its denial of the defendant's motion relating to the jury fee; and, on the record, it was impossible to determine whether the motion was denied because the court found that the defendant had not proved his indigency or because the court was of the opinion that his indigency, if it existed, was irrelevant. The Appellate Division found no error in the decision of the trial court commenting that 'in the absence of a finding it may be presumed that the denial was based on what the trial court considered to be legal and sufficient reasons.' We granted the defendant's petition for certification for an appeal.

Following oral argument of the defendant's appeal, this court, pursuant to the provisions of § 692 of the Practice Book, ordered that the trial court file 'a supplemental finding as to the issue of indigency, such as circumstances permit, and also setting forth the basis for its ultimate conclusion, including any claims of law made together with the conclusions reached thereon, with respect to the denial of the defendant's motion entitled 'Motion to Waive Jury Fee." Such a supplemental finding, to determine the basis for the court's ruling on the defenant's motion for waiver of the jury fee, was deemed desirable in the interests of judicial ecomony and to determine if the question of whether an indigent defendant in a paternity proceeding is entitled to a jury trial without the payment of the statutory fee required decision or was in fact moot.

In accordance with the direction of this court, the trial court did file a supplemental finding containing, in addition to a statement of the claims of law found to have been made by the defendant, eight findings of fact and six conclusions including one that the defendant was not indigent. The defendant then filed assignments of error directed to this supplemental finding, and the parties filed supplemental briefs and argued their respective positions. It is unnecessary to discuss fully the merits of the defendant's assignments of error addressed to the supplemental finding. It suffices to state our conclusion that the trial court erred in imposing on the defendant an excessive burden of proof and in taking judicial notice of and considering a financial affidavit filed earlier in the proceedings, without notice to the defendant that its contents would be used against him and without affording him an opportunity to explain it or show any intervening change in circumstances.

Rather than further delaying a decision on this appeal in order to obtain from the trial court an error-free supplemental finding on the issue of indigency, we have decided to consider the basic question of whether an indigent defendant in a paternity action is entitled to a waiver of the statutory fee for a jury trial. The parties have fully briefed and argued this question and we will decide it as presented.

It is the contention of the defendant, briefly stated, that a paternity action in Connecticut 'is a quasi-criminal proceeding to which the constitutionally-protected right to jury trial must apply' and, accordingly, the 'defendant was denied his constitutional rights of due process and equal protection when he was denied a jury trial in this paternity action because he was unable to pay the $100 fee.'

These contentions must be approached with a clear understanding that the requirements of due process are not fixed but depend on the nature of the case under consideration and the relative interests, both governmental and private, involved. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 262, 263, 90 S.Ct. 1011, 25 L.Ed.2d 287; Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230; Hart Twin Volvo Corporation v. Commissioner of Motor Vehicles, 165 Conn. 42, 47 n.2, 237 A.2d 588.

It is well settled that in Connecticut paternity actions are civil and not criminal proceedings and the general rules governing civil actions apply. Kuser v. Orkis, Conn., 362 A.2d 943; Pelak v. Karpa, 146 Conn. 370, 372, 151 A.2d 333; Ferguson v. Smazer, 151 Conn. 226, 227 n.1, 196 A.2d 432; Copes v. Malacarne, 118 Conn. 304, 305, 172 A. 89; Pierzanowski v. Jezewski, 116 Conn. 704, 705, 164 A. 207; Hamden v. Collins, 85 Conn. 327, 330, 82 A. 636. This is in accord with the view accepted by most jurisdictions. See 10 Am.Jur.2d 901, Bastards, § 75.

Over 150 years ago, in Hinman v. Taylor, 2 Conn. 357, 360, Chief Justice Zephaniah Swift observed: 'A suit for the maintenance of a bastard child is a statutory process sui generis, parking altogether of the nature of a civil, and not of a criminal suit. The general rules respecting civil cases are applicable to it. The plaintiff can withdraw, and is liable to cost if unsuccessful; the defendant may plead a discharge, appear by attorney, and be defaulted. Though the process is forthwith as in criminal cases, yet it resembles a criminal proceeding in nothing else. It can be prosecuted by an individual, without joining the state; and no punishment whatever can be inflicted. . . . To constitute a criminal suit, some punishment must be inflicted in behalf of the state.' In a concurring opinion, Justice Hosmer observed (pp. 361-62): 'It has been contended, that the action on the statute of bastardy, is not a civil, but a criminal suit; and of consequence, that the state is prosecutor. In my opinion this proposition is without the shadow of foundation. The process under the act is not criminal process; the end of the law is the redress of a civil injury; and if the proceedings to enforce the plaintiff's right were precisely analogous to a public prosecution for a criminal offence, she could not prosecute in her own proper person. The process in this case, under the act of bastardy is not criminal process. It is a complaint subscribed by Nancy Taylor. This is not the mode of prosecuting for a criminal offence; but is in precise conformity to a bill in equity. . . . The end of the law concerning bastardy, is the redress of a civil injury. This, with the preventive remedy for the protection of towns, constitutes the whole of it. The law provides for the maintenance of the bastard in aid of the mother. It requires security, by bond, to shield the town where the child is born, from its support. Here is no public wrong to be redressed; no offender to be punished; but a sum of money for the infant's maintenance is all which the statute contemplates. An action for money had and received, is no more the redress of a civil injury, than a suit to obtain the benefit of this law. To this remark it may be superadded, that the manner of obtaining the object, is definitely pointed out. It is by suit in behalf of the mother; or, if she omit to sue, or prosecute, in behalf of the town.'

The common law did not afford a remedy to compel a putative father to contribute to the support of his illegitimate child. Annot., 94 A.L.R.2d 1129, 'Bastardy Proceedings-Jury Trial'; 10 Am.Jur.2d 895, Bastards, § 68; annot., 30 A.L.R. 1069, 'Non-statutory Duty of Father to Support Illegitimate Child.' In Connecticut, however, since the early days of the colony, maintenance of a bastard child has been provided for by statute and it has ever since been the policy of this state to require a father to support his illegitimate...