Testa v. Geressy

• Decision Date: 01 April 2008
• Docket Number: No. 17970.,17970.
• Citation: 286 Conn. 291,943 A.2d 1075
• Court: Connecticut Supreme Court
• Parties: Steven TESTA v. Vickie GERESSY.

943 A.2d 1075

286 Conn. 291

Steven TESTA v. Vickie GERESSY.

No. 17970.

Supreme Court of Connecticut.

Argued November 19, 2007.

Decided April 1, 2008.

Melissa Testa, with whom was AnnMarie Alexander, for the appellant (plaintiff).

Jane R. Rosenberg, assistant attorney general, with whom were Ronald Blanchette, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, for the appellee (state support enforcement services).

ROGERS, C.J., and NORCOTT, VERTEFEUILLE, ZARELLA and SCHALLER, Js.

NORCOTT, J.

This appeal requires us to consider the statutory authority of the office of the attorney general (state) to appear and plead in proceedings before a family support magistrate to enforce a child support order. The plaintiff, Steven Testa, appeals¹ from the judgment of the trial court, Hon. John R. Caruso, judge trial referee, denying the plaintiff's appeal from the decision of the family support magistrate, Harris T. Lifshitz, which denied the plaintiff's motion to vacate the Connecticut registration of a child support order that originally had been issued in the state of Illinois in 1990 (1990 order), as well as his motion to terminate further proceedings in this action. On appeal, the plaintiff claims that Judge Caruso improperly denied the plaintiff's appeal because: (1) Magistrate Lifshitz lacked authority because exclusive jurisdiction over this matter lay with the trial court until a final determination was made on the merits of the state's² appeal from the prior decision of the family support magistrate, John E. Colella; and (2) Judge Caruso should have overruled the prior conclusion of the trial court, Prestley, J., that the state and support enforcement services have statutory standing to appear and plead in this matter. The plaintiff further contends that Judge Caruso's failure to reach the plaintiff's other claims on appeal from the decision of Magistrate Lifshitz violated the plaintiff's right to remedy by due course of law under article first, § 10, of the constitution of Connecticut.³ We conclude that Judge Caruso properly declined to disturb Judge Prestley's ruling that: (1) the state has clear statutory authority, pursuant to General Statutes §§ 46b-212t (a)⁴ and 46b-231(t)(2),⁵ to provide legal services to support enforcement services in this matter; and (2) support enforcement services has statutory authority, pursuant to General Statutes §§ 46b-212a (21)⁶ and 51-1e,⁷ to assist the defendant in seeking to enforce the 1990 order. Moreover, although Judge Caruso improperly declined to review the remainder of the plaintiff's claims in his appeal from the decision of Magistrate Lifshitz, we have reviewed those claims in the interest of judicial economy and conclude that they lack merit. Accordingly, we affirm the judgment of the trial court.

The record reveals the following relevant facts and the complicated procedural history of this case. On December 13, 1990, the family division of the Circuit Court for the sixteenth judicial circuit in Kane County, Illinois (Illinois court), obtained a signed admission of paternity, wherein the plaintiff acknowledged being "the father of child Sarah Jean Geressy born to [the defendant] on April 28, 1985." The Illinois court also issued the 1990 order, accompanied by a withholding order, on December 13, 1990. The 1990 order acknowledged that both the plaintiff and the defendant were present in open court, and decreed that the plaintiff: (1) is the father of Sarah Jean Geressy, based on his signed admission of paternity; (2) pay the defendant $62.36 per week for support;⁸ (3) is granted visitation privileges; (4) obtain health insurance for the child, through his employer; and (5) send a copy of the health insurance policy and card to the defendant. The 1990 order also acknowledged that the plaintiff "waive[d] service of summons and accept[ed] service of the [p]etition to est[ablish] [p]aternity this date."

The plaintiff was a Connecticut resident at the time the Illinois court issued the 1990 order, and he currently remains a resident of Connecticut. The defendant was a resident of Illinois when the 1990 order was issued, but she subsequently moved to Indiana. The 1990 order, however, was never registered in Indiana. On December 2, 1993, Judge Larsen of the Illinois court issued an order (1993 order) stating: "Both parties out of state. Clerk relieved of all record keeping and disbursement. Clerk to delete." The 1993 order further decreed that, as of November 30, 1993, the plaintiff owed an arrearage in the amount of $685.96.

In 1996, the defendant, through the Indiana child support division (Indiana support division), unsuccessfully attempted to have Connecticut enforce the 1990 order against the plaintiff. In 1997, the Indiana support division also attempted, on behalf of the defendant, to have the 1990 order registered in Connecticut. On September 4, 1997, a family support magistrate effectively denied the petition for registration because of insufficient service on the plaintiff.

The 1990 order was successfully registered in Connecticut on October 11, 2001, under the Uniform Interstate Family Support Act, General Statutes § 46b-212 et seq. On November 16, 2001, a support services investigator served the plaintiff with the notice of registration⁹ at his abode, pursuant to General Statutes §§ 46b-213k (a)¹⁰ and 52-57(a).¹¹ The plaintiff's failure to contest the validity of the registration within twenty days of service confirmed the 1990 order by operation of law. See General Statutes § 46b-213l.¹²

On March 2, 2004, the plaintiff filed a pleading entitled, "[Plaintiff's] Motion to Vacate Registration of Foreign Support Order, Connecticut Wage Withholding/Enforcement Order for Support and Connecticut's Enforcement of Foreign State's Arrearage Order" (motion to vacate). On April 15, 2004, a hearing on the motion to vacate was held before Magistrate Colella. During the hearing, Magistrate Colella ordered the plaintiff and the state to file briefs, and he further ordered that the plaintiff's motion to vacate would be treated as a motion to open.

The plaintiff and the state filed briefs dated April 29, 2004, and May 13, 2004, respectively. On September 7, 2004, Magistrate Colella filed a memorandum requesting that both parties allow him to issue his decision beyond the 120 day limit provided by Practice Book § 11-19(a)¹³ because he was still awaiting information that he had requested from Illinois and Indiana, pursuant to General Statutes § 46b-213b.¹⁴ The state declined to waive the 120 day time limit, however, and on September 9, 2004, Magistrate Colella issued a memorandum of decision stating that the "primary question is whether the child support order was terminated at some point in Illinois or Indiana...." Magistrate Colella determined that the briefs submitted by the plaintiff and the state failed to answer this question conclusively, and stated that he still had not received the information that he had requested from Indiana and Illinois prior to the expiration of the 120 day period in which he was obligated to render a decision. Accordingly, Magistrate Colella determined that the evidence was "insufficient to allow the court to conclusively find that a current child support order existed during the entire period in question." He then granted the plaintiff's motion to open, vacated Connecticut's registration of the 1990 order, and terminated any further enforcement of the 1990 order.¹⁵ Magistrate Colella denied the state's subsequent motion for reconsideration.

On September 24, 2004, the state appealed from Magistrate Colella's decision to the trial court, pursuant to General Statutes § 46b-231 (n).¹⁶ The plaintiff filed a motion to dismiss the state's appeal on October 6, 2004, in which he argued, inter alia, that both the state and support enforcement services lacked standing to appear and plead in this action, and that the defendant had failed both to plead and appear.

On January 25, 2005, Judge Prestley issued her memorandum of decision on the plaintiff's motion to dismiss the appeal, and rejected the plaintiff's claim that the state and support enforcement services lacked standing. Judge Prestley concluded that the plaintiff's reliance on Blumenthal v. Barnes, 261 Conn. 434, 804 A.2d 152 (2002), was misplaced because the issue in that case concerned the attorney general's common-law standing to bring an action, while the present case involves his statutory authority to provide legal services. The trial court concluded that, since the state is providing necessary legal services to support enforcement services in seeking to enforce a child support order, pursuant to General Statutes §§ 46b-212a (21) and 46b-212t (a), both the state and support enforcement services have the statutory authority to appear and plead in this action. Judge Prestley further concluded that the state has the authority to plead on the defendant's behalf, and that, pursuant to General Statutes § 46b-213a (a),¹⁷ the defendant "is not required to attend any proceedings on these issues." On the basis of these conclusions, Judge Prestley denied the plaintiff's motion to dismiss.

After she denied the plaintiff's motion to dismiss the appeal, Judge Prestley further determined: "[I]t is clear ... [that Magistrate Colella] was placed in the untenable position of having to render a decision with an incomplete record. Therefore, this court orders that the cause be remanded for reassignment and that any information available through inquiry made by the family court magistrate or other means vis-a-vis the status of the Illinois and Indiana child support orders be provided to the reviewing magistrate." Thereafter, the case was remanded and reassigned to Magistrate Lifshitz.

On remand, the plaintiff filed a motion to terminate further proceedings (motion to terminate) on March 18, 2005, seeking to terminate the hearing scheduled before Magistrate...