W. v. W.

• Decision Date: 27 April 1999
• Docket Number: (SC 15956)
• Citation: 248 Conn. 487,728 A.2d 1076
• Court: Connecticut Supreme Court
• Parties: W. v. W.

248 Conn. 487

728 A.2d 1076

W. v. W.¹

(SC 15956)

Supreme Court of Connecticut.

Argued January 19, 1999.

Officially released April 27, 1999.

Borden, Berdon, Norcott, Katz and Palmer, JS.

James H. Lee, for the appellant (defendant).

Stephen T. Kulig, for the appellee (plaintiff).

Opinion

KATZ, J.

This appeal involves a pendente lite child support dispute concerning a minor child, who was born to the plaintiff prior to her marriage to the defendant. Although the defendant is not the child's biological father, the trial court estopped him from denying paternity and issued temporary child support orders against him. The issues to be decided in this appeal are whether: (1) the trial court, pursuant to General Statutes § 46b-56,² had jurisdiction to order temporary child support for a child when the defendant in the dissolution action is not the biological father of the child; (2) the trial court acted improperly when it equitably estopped the defendant from denying paternity of the child; and (3) the trial court, pursuant to General Statutes § 46b-84,³ acted improperly in failing to modify an earlier temporary child support order despite its finding of no substantial change in the defendant's financial circumstances. We affirm the judgment of the trial court.

The trial court set forth the following relevant facts and underlying procedural history. Soon after the plaintiff and the defendant had begun to have sexual relations, the plaintiff informed the defendant that she might be pregnant. After the pregnancy was confirmed, but before the birth of the child, both parties recognized that the defendant might not be the child's biological father. Following the child's birth on June 15, 1986, the parties agreed that the child should bear the defendant's last name.

Soon thereafter, the plaintiff moved to Rhode Island to live with the defendant. Following her arrival, the plaintiff applied for public assistance, naming her former boyfriend, D, as the father of the child. Before the plaintiff could complete the documents necessary to institute paternity proceedings, however, the defendant destroyed the documents. The trial court found that the defendant had persuaded the plaintiff not to seek blood tests to determine paternity, and, consequently, to forgo public assistance and child support from D. The trial court found further that the defendant had taken such actions because he did not want D to play any role in the life of the child.

The parties continued to live together for approximately the next three years. On March 11, 1989, they married after the plaintiff had become pregnant with the defendant's child. Their child, whose paternity the defendant does not challenge, was born on July 28, 1989.

On January 21, 1997, the plaintiff commenced the dissolution action underlying the present appeal. The trial court, by agreement of the parties, issued a temporary child support order, which obligated the defendant to pay the plaintiff a total of $175 per week for both children. According to the defendant's financial affidavit, in March, 1997, the defendant was earning $724 per week in gross income, with a net income of $493 per week.

One month later the defendant moved to modify the child support order. On May 5, 1997, the trial court granted a downward modification, ordering the defendant to pay $150 per week for both children. At that time, the defendant's affidavit reflected a gross income of $507 per week, with a net income of $349 per week.

Subsequently, the plaintiff moved for an upward modification of the child support order. On September 29, 1997, the court granted the motion, increased the order to $201 per week and $40 per week against the $800 arrearage.⁴ The defendant's financial affidavit indicated a net income of $403 per week at that time.

On November 17, 1997, the defendant moved for a blood test to establish the paternity of the older child, and for a downward modification of the child support order based on an alleged substantial decrease in his income. Prior to filing this motion the plaintiff had, on occasion, suggested paternity testing to establish conclusively the paternity of the older child, but the defendant had consistently refused to submit to such testing because, according to the trial court, he feared it would reveal that he was not the father of the child. Until the time of the motion for the blood test, the defendant consistently had treated the older child as his own daughter, despite her uncertain parentage. On November 17, 1997, the trial court granted the defendant's motion for paternity testing. The test results excluded the defendant as the father of the child.⁵

Despite the paternity test results, the trial court, relying on the doctrine of equitable estoppel, barred the defendant from disclaiming that he is the father of the older child. The court found that the defendant had acted consistently as the father of the older child, providing emotional and financial support throughout her entire life. The court found further that the parties had raised the child to believe that the defendant is her father, and that indeed, they had never told the child otherwise. Consequently, according to the court, discovering that the defendant is not her biological father as a consequence of this action would have an extremely deleterious emotional effect on her.

Additionally, on a financial level, the court found that the defendant had frustrated the plaintiffs earlier attempts to discern medically who was the child's biological father as well as her efforts to collect public assistance from Rhode Island, and child support from the child's natural father. The court found that, as a result, the plaintiff had failed to collect child support from D for nearly twelve years. According to the court's findings, at the time of the hearing, the whereabouts and wherewithal of D were unknown. Therefore, the plaintiffs current ability to obtain child support from D is uncertain.

Finally, the trial court concluded that the defendant had failed to demonstrate, by a preponderance of the evidence, that his financial circumstances had changed substantially since the issuance of the most recent child support order of September 29, 1997. The trial court, therefore, denied the defendant's motion for modification. The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

On appeal, the defendant argues that the trial court: (1) did not have jurisdiction, pursuant to § 46b-56,⁶ to order temporary child support for the child in question; (2) improperly estopped the defendant from denying paternity of the child; and (3) acted improperly when it refused to modify the child support order pursuant to § 46b-84.⁷ We disagree.

I

As a general matter of jurisprudence, we resolve issues concerning a court's subject matter jurisdiction before turning to the merits of the parties' claims. See, e.g., Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 289, 695 A.2d 1051 (1997). In the present case, the defendant claims that the child is not a "child of the marriage" because he is not the child's biological father. On that basis, the defendant contends that the trial court lacked subject matter jurisdiction to order temporary child support. We disagree.

Although it is well settled that trial courts have broad equitable remedial powers regarding marital dissolutions; Doe v. Doe, 244 Conn. 403, 423, 710 A.2d 1297 (1998); it is also undisputed that the trial court's power to dissolve a marriage and to order custody, care and education of any minor children of the parties, incidental to the dissolution action, is statutorily based. Morrow v. Morrow, 165 Conn. 665, 668, 345 A.2d 561 (1974); Dunham v. Dunham, 97 Conn. 440, 443-44, 117 A. 504 (1922); Steele v. Steele, 35 Conn. 48, 54 (1868). Consequently, the issue of the trial court's jurisdiction is one of statutory construction, over which our review is plenary. Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 53, 607 A.2d 424 (1992); see Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980).

An extensive analysis of the pertinent statutes is unnecessary, however, in light of our recent decision in Doe v. Doe, supra, 244 Conn. 422, wherein we held that although the concept of a "child of the marriage" continues to define who is considered legally to be a parent, it no longer creates jurisdictional limitations.⁸ In Doe, this court verified a dissolution court's jurisdiction, pursuant to § 46b-56, over the issue of the custody and support of a minor child who did not fit the statutory definition of a "child of the marriage." Id., 439. Specifically, based upon the statutory scheme governing domestic disputes, this court concluded that, although "the concept of `child of the marriage,' and its corresponding definition of parentage, [once] imposed jurisdictional limitations on the trial court's power to enter custody [and support] orders in dissolution cases," the definition of parenthood no longer imposes a jurisdictional limitation on a dissolution court with regard to custody and support determinations.⁹ Id.; see generally Kennedy v. Kennedy, 177 Conn. 47, 50, 411 A.2d 25 (1979) (jurisdiction to make and enforce orders for care, custody, and education of minor children is derived from court's statutory jurisdiction over dissolution of marriage). Therefore, we conclude that, regardless of whether the child at issue in the present case is considered a "child of the marriage," the trial court had subject matter jurisdiction to order pendente lite child support.

II

The second issue on appeal is whether the trial court acted improperly when it equitably estopped the defendant from denying that he is the father of the plaintiffs older child. We conclude that the trial court's action was proper.

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