State v. Barr, No. FA92-0039347 (CT 9/7/2004)
| Decision Date | 07 September 2004 |
| Docket Number | No. FA92-0039347,FA92-0039347 |
| Court | Supreme Court of Connecticut |
| Parties | State of Connecticut (Russo) v. Robert Barr |
McCARTHY, FAMILY SUPPORTING MAGISTRATE.
The State of Connecticut commenced this paternity petition against the defendant pursuant to General Statutes §46b-162. The named plaintiff Debra Russo is the mother of a son Robert John Barr Jr..
The matter came to the court for trial on December 3, 1996. Both parties were present. The transcript indicates that a general advisement of rights was given by the court.[fn1] The plaintiff testified under oath naming the defendant as the baby's father. The defendant Sherman was canvassed by the Assistant Attorney General regarding his right to counsel, his right to genetic tests and his right to trial. He specifically waived these rights and admitted under oath to paternity. Thereafter, the court entered judgment that the defendant Sherman was the boy's father. [fn1]
Although the parties maintained a friendship for a period of time, they no longer maintained a family unit. Ms. Russo eventually began a relationship with another person.
The next court activity was the filing of the present motion to open the paternity judgment, plaintiff by a State Marshal. Both parties appeared and a full contested hearing was held.
Respondent testified that the plaintiff told him he may not be the father. The plaintiff states that "it may be possible that someone else may be the father."
The main thrust of the defendant's motion is to obtain a court order for a paternity test. General Statutes §46b-168 provides for court-ordered DNA testing when "the question of paternity is at issue. [fn5] However, our Appellate court has held that where a paternity judgment exists the court lacks the authority to order genetic tests unless the judgment is first opened. Cardona v. Negron, 53 Conn.App. 152, 157, 728 A.2d 1150 (1999); Anderson v. Bailey, 15 S.M.D. (Burt, F.S.M., Feb. 14, 2001).
There is no specific statute relating to opening of an adjudicated paternity judgment. McNealy v. Dancy, 13 S.M.D. 113, 122, 1999 Ct.Sup. 12793 (1999). A movant must rely on provisions for opening any civil judgment, General Statutes §52-212a and Practice Book §17-4. [fn6] "These provisions allow a four month window from the date of judgment within which such a motion may be brought." In re Jonathan M., 255 Conn. 208, 237, 764 A.2d 739 (2001); Drakefford v. Ward, 15 S.M.D. (Lifshitz, F.S.M., Nov. 7, 2001).
Earlier cases held that courts lacked subject matter jurisdiction to open a judgment unless the motion was filed within four months. Van Mecklenberg v. Pan American World Airways, Inc., 196 Conn. 517, 5118, 494 A.2d 549 (1985); Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 465, 440 A.2d 159 (1981); Misinonile v. Misinonile, 190 Conn. 132, 134, 459 A.2d 518 (1983); Handy v. Minwax Co., Inc., 46 Conn.App. 54, 56, 698 A.2d 339 (1997); Ziruk v. Bedard, 45 Conn.App. 137, 139, 695 A.2d 4 (1997); Connecticut National Bank v. Oxenhandler, 30 Conn.App. 541, 546-47, 621 A.2d 300, cert. denied, 225 Conn. 924, 625 A.2d 822 (1993). More recent law characterizes the statutory bar as "a limitation on the trial court's general authority to grant relief from a judgment." Yeong Gil Kim v. Magnotta, 249 Conn. 94, 103, 733 A.2d 809 (1999).
This motion to open was filed more than nine years after the date of the original judgment. This is well beyond the time bar in the statute. "Therefore the court does not have the authority to grant the motion absent proof by the moving party of an extraordinary factor such as fraud, mistake, or duress." Drakeford v. Ward, 15 S.M.D. (Lifshitz, F.S.M., Nov. 7, 2001).
Even if the defendant successfully proves that at least one of the above factors applies, he must overcome countervailing factors such as laches, estoppel and unclean hands. "[O]ne of the essential conditions for granting of such a motion is that the evidence which the party seeks to offer could not have been known and with reasonable diligence produced at trial." Stocking v. Ives, 156 Conn. 70, 73, 238 A.2d 421 (1968); Fedele v. Romero, 37 Conn.Sup. 885, 888, 441 A.2d 867 (1982).
Our courts favor finality in judicial decisions. Meinket v. Levinson, 193 Conn. 110, 113, 414 A.2d 454 (1984); Vogel v. Vogel, 178 Conn. 358, 422 A.2d 271 (1979); Perkins v. Perkins, 3 Conn.App. 322, 328, 487 A.2d 1117 (1985); Tirade v. Rivera, 13 S.M.D. 212, 221, 1999 Ct.Sup. 15638 (1999); Joseph v. Lilburn, 14 S.M.D. (2000); Yade v. Nagy, 4 S.M.D. 237 (1990); State of Florida v. Backlund, 2 S.M.D. 61, 71 (1988). "Public policy requires that a term be put to litigation and the judgments, as solemn records upon which valuable rights rest, should not lightly be disturbed or overthrown . . ." Lampson Lumber Co. v. Hoer, 139 Conn. 294, 297, 93 A.2d 143 (1952); White v. Cordier, 14 S.M.D. 27 Conn. L. Rptr. 365 (2000); Pullen v. Cox, 9 S.M.D. 134, 137 (1995).
"The finality of judgment in family matters is crucial to our community's stability." Berry v. Berry, Superior Court, judicial district of Hartford/New Britain at Hartford, doc. no. FA91-0391459, 1993 Ct.Sup. 22 (Steinberg, J. January 5, 1993); Valentin v. Olivero, 15 S.M.D. (Alvord, F.S.M., June 11, 2001); Joseph v. Lilburn, 14 S.M.D. (2000). "The need for finality of judgment must apply as much or more to cases where a young child for whom the passage of time which may seem short for an adult or teenager, can be almost an eternity to an infant, and work changes with substantial and irreversible effect." In re Kelly S., Superior Court, juvenile matters, judicial district of Windham at Willimantic, doc. no. N90-159, 1991 Ct.Sup. 10450, 10464 (Teller, J. Dec. 5, 1991); In re Nathan and Michael G., Superior Court, juvenile matters, judicial district of Windham at Willimantic, 1993 Ct.Sup. 9953, 9967 (Brenneman, J. Nov. 17, 1993); In re Mark and Amy C., Superior Court, juvenile matters, judicial district of New London at Montville, 1991 Ct.Sup. 7960, 10464 (R. Walsh, J. Sept. 24, 1991); In re Jesus Lugo, Superior court, juvenile matters, judicial district of Hartford/New Britain at Plainville, 1990 Ct.Sup. 878, 887 (Brenneman, J. Aug. 24, 1990); Valentin v. Olivero, 13 S.M.D. (Alvord, F.S.M., June 11, 2001).
The importance of the principle of finality of judgment is amplified when the parties had full opportunity originally to contest the issues. Meinket v. Levinson, 193 Conn. 110, 114 (1984); Monroe v. Monroe, 177 Conn. 173, 178, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979); Mauriello v. Mauriello, 1992 Ct.Sup. 4774, Superior Court, judicial district of Waterbury, doc. no. 84337 (Harrigan, J., May 29, 1992). The principle of finality of judgment must be balanced against other interests, such as assuring that no party will be deprived of constitutional rights, or achieving a factually accurate as well as a fair result. Asherman v. State, 202 Conn. 429, 521 A.2d 578 (1987).
A judgment obtained by fraud may be attacked even after the time limitation for opening the judgment. Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980); Gatling v. Gatling, Superior Court, judicial district of Waterbury, doc. no. 52272, 1990 Ct.Sup. 801 (Harrigan, J., Aug. 9, 1990); White v. Cordier, 14 S.M.D. 98, 27 Conn. L. Rptr. 365, 2000 Ct.Sup. 6486 (2000); McNealy v. Dancy, 13 S.M.D. 113, 119, 1999 Ct.Sup. 12793 (1999).
The moving party bears a heavy burden of proof. "Fraud must be proven by `clear and satisfactory evidence,' a standard more exacting than a fair preponderance of the evidence." Gatling, supra; Dawkins v. Nash, 15 S.M.D. 7 Conn.Ops. 1302 (Colella, F.S.M., Oct. 29, 2001); see also Alaimo v. Royer, 188 Conn. 36, 39, 448 A.2d 207 (1982). The standard is also phrased "clear, precise and unequivocal evidence." Weisman v. Kaspar, 233 Conn. 531, 540, 661 A.2d 530 (1995); Connell v. Colwell, 214 Conn. 242, 571 A.2d 116 (1990); Alaimo, supra, 39; Lopinto v. Haines, 185 Conn. 527, 534, 441 A.2d 151 (1981); DeLuca v. C.W. Blakeslee & Sons, Inc., 174 Conn. 535, 546, 391 A.2d 170 (1978); T.O. Richardson Co. v. Brockbank, Superior Court, judicial district of Hartford/New Britain at Hartford, doc. no. 703826 (Sheldon, J., March 23, 1995); Pullen v. Cox, 9 S.M.D. 134, 138 (1995).
In order to establish fraud, the moving party must prove that: "(1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act on it; and (4) the other party did so act upon that false representation to his injury." Weisman v. Kaspar, 233 Conn. 531, 539, 661 A.2d 530 (1995); Billington v. Billington, 220 Conn. 212, 217, 595 A.2d 1377 (1991); Miller v. Appleby, 183 Conn. 51, 54-55, 438 A.2d 811 (1981); Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 515, 271 A.2d 69 (1970); Barnes v. Starr, 64 Conn. 136, 1250, 28 A. 980 (1894); Gatling, supra; Hemingway v. Jones, 15 S.M.D. (Burt, F.S.M. Feb. 16, 2001); Anderson v. Bailey, 15 S.M.D. (Burt, F.S.M., Feb. 14, 2001); Tirado v. Rivera, 13 S.M.D. 212, 221, 1999 Ct.Sup. 15638 (1999); Pullen v. Cox, supra, 9 S.M.D. 138.
Additionally, the judgment may be opened only if the moving party is not barred by any of the following restrictions: ...
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