O'Toole v. Hernandez

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KATHRYN G. O’TOOLE v. ORLANDO HERNANDEZ
(AC 37317)
Alvord, Mullins and Schaller, Js.
Argued January 5—officially released March 8, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Frankel, J.)
Christopher Kylin, for the appellant (defendant).
Joseph P. Sargent, for the appellee (plaintiff).
Opinion
ALVORD, J. The defendant, Orlando Hernandez,
appeals from the judgment of the trial court affirming
the decision of the family support magistrate that
awarded the plaintiff, Kathryn G. O’Toole, $1154.47 in
attorney’s fees after finding the defendant in contempt
for failure to pay court ordered child support. On
appeal, the defendant claims that the court’s determina-
tion was erroneous because a family support magistrate
has no statutory authority to award attorney’s fees in
contempt proceedings.1 We affirm the judgment of the
trial court.
The following facts and procedural history are rele-
vant to the resolution of the defendant’s appeal. The
plaintiff and the defendant have never been married to
each other. On August 30, 2010, an assistant attorney
general filed a paternity petition on behalf of the state2
with the Family Support Magistrate Division of the
Superior Court, pursuant to General Statutes § 46b-162,3
naming the defendant as the father of the parties’ minor
son and seeking financial support for the minor child.
The action was commenced because the mother and
child had received state assistance as contemplated by
Title IV-D of the Social Security Act, 42 U.S.C. § 651 et
seq. (2012). See also General Statutes § 17b-179 (creat-
ing Bureau of Child Support Enforcement to implement
Title IV-D). Although the defendant was served in hand
with the paternity petition, summons, and order for
hearing, he did not appear at the scheduled hearing,
and, after the evidentiary hearing on October 13, 2010,
the family support magistrate, Anthony P. Fusco, issued
by default a determination of paternity and an order
of weekly child support premised on the state’s wage
exhibits relative to the defendant’s earnings. The defen-
dant obtained counsel and filed a motion to open the
judgment and a motion for genetic testing, which were
granted by the family support magistrate, William E.
Strada, Jr., on March 30, 2011, at which time the Octo-
ber 13, 2010 child support order was vacated.
On May 25, 2011, following a hearing at which the
defendant was present, Magistrate Strada found the
defendant to be the father of the minor child on the
basis of ‘‘[the] parties’ testimony and evidence in the
file including DNA testing results . . . .’’ Magistrate
Strada again entered support orders on June 22, 2011.
The plaintiff, with the assistance of her counsel, there-
after filed several postjudgment motions for contempt
against the defendant, claiming repeated noncompli-
ance with the court’s child support orders. On March
21, 2014, the plaintiff filed the postjudgment motion for
contempt that is the subject of the present appeal. She
claimed that the defendant ‘‘wilfully failed to pay child
support dating back to February, 2013.’’4 A hearing was
held on May 1, 2014. The parties were in attendance,
and the defendant received a ‘‘state appointed attorney
in the matter.’’ Magistrate Fusco found a child support
arrearage of $20,383, found the defendant in contempt
and ordered that he be incarcerated until he paid a
purge amount of $10,000. At that time, Magistrate Fusco
additionally ordered the defendant to pay the plaintiff
$1154.47 in attorney’s fees within ninety days of that
order.
The defendant appealed from the May 1, 2014 deci-
sion of Magistrate Fusco to the Superior Court pursuant
to General Statutes § 46b-231 (n).5 In his statement of
the issues, the defendant challenged the authority of a
family support magistrate to order a contemnor to pay
his opponent’s legal fees. He additionally claimed that
the plaintiff effectively had no right to hire an attorney
in a IV-D matter because she ‘‘already has access to
assistance by the IV-D agency in presenting the case.’’6
Following a hearing on September 9, 2014, the trial
court issued its memorandum of decision on September
17, 2014, in which it concluded that ‘‘the family support
magistrate was within his statutory authority, in a pater-
nity case, which this case is, to order attorney’s fees in
a motion for contempt to enforce the orders of support.
Therefore, the appeal by the defendant is denied.’’ In
reaching that determination, the court relied on the
language in General Statutes § 46b-1717 as the statutory
authority for the awarding of attorney’s fees by Magis-
trate Fusco. This appeal followed.
On appeal, the defendant claims that § 46b-171 does
not provide the requisite authority for the awarding
of attorney’s fees by a family support magistrate. The
defendant further claims that there are no other statutes
that do provide such authority. For that reason, the
defendant argues that his due process rights were vio-
lated when Magistrate Fusco ordered him to pay the
plaintiff $1154.47 in attorney’s fees. The plaintiff claims,
as an alternative ground for affirmance,8 that § 46b-231
provided Magistrate Fusco with the authority to order
the payment of attorney’s fees when enforcing child
support orders in a contempt proceeding. We agree
with the plaintiff and, accordingly, affirm the judgment
of the trial court on this alternative basis.9
The issue raised in this appeal, namely, whether a
family magistrate has the statutory authority to award
attorney’s fees in a contempt proceeding for failure to
pay child support as ordered in a child support matter,
is an issue of statutory construction. ‘‘Issues of statutory
construction raise questions of law, over which we exer-
cise plenary review. . . . The process of statutory
interpretation involves the determination of the mean-
ing of the statutory language as applied to the facts of
the case, including the question of whether the language
does so apply. . . .
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to
determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case
. . . . In seeking to determine that meaning, General
Statutes § 1-2z directs us first to consider the text of
the statute itself and its relationship to other statutes.
If, after examining such text and considering such rela-
tionship, the meaning of such text is plain and unambig-
uous and does not yield absurd or unworkable results,
extratextual evidence of the meaning of the statute shall
not be considered. . . . The test to determine ambigu-
ity is whether the statute, when read in context, is
susceptible to more than one reasonable interpreta-
tion.’’ (Citations omitted; internal quotation marks omit-
ted.) Commissioner of Transportation v. ISIS Realty
Associates Ltd. Partnership, 121 Conn. App. 13, 18–19,
993 A.2d 491 (2010).
In the present case, the state initiated this action
by filing a paternity petition with the Family Support
Magistrate Division of the Superior Court seeking a
determination of paternity and the establishment of
support orders for the parties’ minor son. The family
support magistrate found that the defendant was the
father of the minor child and entered child support
orders. When the defendant failed to comply with the
magistrate court’s orders, the plaintiff filed the motion
for contempt. After an evidentiary hearing, the defen-
dant was found in contempt and, at that time, was
ordered to pay a portion of the child support arrearage
as a purge and further ordered to pay the plaintiff
$1154.47 in attorney’s fees. We therefore look to the
statutes governing the Family Support Magistrate Divi-
sion of the Superior Court.
‘‘The Connecticut Family Support Magistrate’s Act
[act], General Statutes §§ 46b-231 through 46b-23[6],
was first enacted in 1986 in response to federal legisla-
tion providing federal funds for states that complied
with federal requirements for the expeditious enforce-
ment of child support orders in cases arising under Title
IV-D. See Public Acts 1986, No. 86-359; Child Support
Enforcement Amendments of 1984, Pub. L. No. 98-378,
98 Stat. 1305 (1984), now codified in various sections
of 42 U.S.C. §§ 651 through 675.’’ (Internal quotation
marks omitted.) Perry v. Perry, 222 Conn. 799, 806, 611
A.2d 400 (1992), overruled in part on other grounds,
Bryant v. Bryant, 228 Conn. 630, 636 n.4, 637 A.2d 1111
(1994). ‘‘In compliance with the processes mandated
by the federal act, the legislature, by the passage of
§ 46b-231 (d) created the family support magistrate divi-
sion of the superior court for the purpose of the impar-
tial administration of child and spousal support.’’
(Internal quotation marks omitted.) Id., 807.
‘‘The authority of family support magistrates is
defined and limited by statute. Although judges of the
Superior Court exercise general jurisdiction, the court
must act, in this area of the law, in a manner consistent
with the statutory scheme governing the family support
magistrate division of the Superior Court.’’ Pritchard
v. Pritchard, 103 Conn. App. 276, 277, 928 A.2d 566
(2007). ‘‘As a creature of statute, the family support
magistrate division has only that power that has been
expressly conferred on it.’’ Id., 284. ‘‘[T]he primary role
of the family support magistrate division is the enforce-
ment of support orders . . . .’’ Id., 285.
In determining the powers available to the family
support magistrates, we begin with the definitions pro-
vided in the act. Section 46b-231 (b) (7) defines a
‘‘ ‘[f]amily support magistrate’ ’’ as ‘‘a person appointed
as provided in subsection (f) of this section to establish
and enforce child and spousal support orders . . . .’’
Section 46b-231 (b) (9) defines ‘‘ ‘[l]aw’ ’’ as ‘‘both statu-
tory and common law . . . .’’ Section 46b-231 (b) (14)
defines ‘‘ ‘[s]upport order’ ’’ as ‘‘a judgment, decree or
order, whether temporary, final or subject to modifica-
tion, issued by a court of competent jurisdiction or
another state’s administrative agency of competent
jurisdiction, for the support and maintenance of a child,
including a child who has attained the age of majority
under the law of the issuing state, or of the parent with
whom the child is living, which provides for monetary
support, health care, arrearages or reimbursement, and
which may include related costs and fees, interest and
penalties, income withholding, attorneys’ fees and
other relief.’’
Other significant sections of the act include the fol-
lowing provisions. Section 46b-231 (c) provides: ‘‘Reme-
dies. The remedies herein provided are in addition to
and not in substitution for any other remedy.’’ Section
46b-231 (m) lists the magistrates’ ‘‘powers and duties.’’
Section 46b-231 (m) (2) (A) provides in relevant part
that ‘‘[f]amily support magistrates shall hear and deter-
mine matters involving child and spousal support in IV-
D support cases . . . .’’ Section 46b-231 (m) (5) pro-
vides that ‘‘[p]roceedings to establish paternity in IV-
D support cases shall be filed in the family support
magistrate division for the judicial district where the
mother or putative father resides. The matter shall be
heard and determined by a family support magistrate
in accordance with the provisions of chapter 815y.’’
Section 46b-231 (m) (7) provides in relevant part: ‘‘Fam-
ily support magistrates shall enforce orders for child
and spousal support entered by such family support
magistrate and by the Superior Court in IV-D support
cases by citing an obligor for contempt. . . . A family
support magistrate may determine whether or not an
obligor is in contempt of the order of the Superior Court
or of a family support magistrate and may make such
orders as are provided by law to enforce a support
obligation . . . .’’ (Emphasis added.)
Reading together the relevant provisions of the act,
it is clearly expressed that a family support magistrate
may make and enforce child support orders, that he or
she may find a person in contempt for failure to comply
with such support orders, and that he or she may enter
such orders as are provided by law necessary to enforce
a support obligation. As previously defined in the act,
‘‘law’’ includes both statutory and common law. General
Statutes § 46b-231 (b) (9). It is significant that the lan-
guage of the statute does not confine the magistrate’s
enforcement powers to only the law as set forth in
the act.
It is also instructive to look at case law that sets
forth the public policy considerations in enforcing child
support obligations and the remedy of contempt as a
court’s tool of enforcement. ‘‘The common-law duty of
parents to provide for their children preceded recogni-
tion and enforcement of that duty in our statutory
scheme. . . . The [parent’s] duty to support . . . is a
continuing obligation, which ordinarily exists even
apart from any judgment or decree of support. . . . A
parent has both a statutory and common law duty to
support his minor children within the reasonable limits
of his ability. . . . See, e.g., General Statutes § 46b-37
(b) (it shall be the joint duty of each spouse to support
his or her family); General Statutes § 46b-84 (a) ([u]pon
or subsequent to the . . . dissolution of any marriage
or the entry of a decree of legal separation or divorce,
the parents of a minor child of the marriage, shall main-
tain the child according to their respective abilities, if
the child is in need of maintenance . . .); General Stat-
utes § 46b-215 (a) (1) ([t]he Superior Court . . . may
make and enforce orders for payment of support against
any person who neglects or refuses to furnish necessary
support to such person’s . . . child under the age of
eighteen . . . according to such person’s ability to fur-
nish such support . . .). These statutes embody the
strong public policy interest of the state pertaining to
matters of needed or necessary child support. It is . . .
in the interest of society that the child be supported
by those obligated to support the child and that the
child not be required to seek public assistance to satisfy
those needs unless otherwise necessary.’’ (Emphasis
omitted; internal quotation marks omitted.) Rostad v.
Hirsch, 148 Conn. App. 441, 464–65 n.9, 85 A.3d 1212
(2014), appeal dismissed, 317 Conn. 290, 116 A.3d 307
(2015) (cert. improvidently granted).
Further, as stated by our Supreme Court, ‘‘[b]oth state
and national policy has been, and continues to be, to
ensure that all parents support their children and that
children who do not live with their parents benefit from
adequate and enforceable orders of child support. . . .
Child support is now widely recognized as an essential
component of an effective and comprehensive family
income security strategy. . . . As with any income
source, the effectiveness of child support in meeting
the needs of children is, of necessity, increased when
payments are made regularly and without interruption.’’
(Citations omitted; internal quotation marks omitted.)
Mulholland v. Mulholland, 229 Conn. 643, 651–52, 643
A.2d 246 (1994). ‘‘Where the need for child support is
established and ordered by the court, it is of the utmost
importance for the welfare of the child that such pay-
ments be made in a timely fashion.’’ (Internal quotation
marks omitted.) Id., 652. Moreover, ‘‘[i]t is well settled
that a [s]tate may not invidiously discriminate against
illegitimate children by denying them substantial bene-
fits accorded children generally. . . . [O]nce a [s]tate
posits a judicially enforceable right on behalf of children
to needed support from their natural fathers there is
no constitutionally sufficient justification for denying
such an essential right to a child simply because its
natural father has not married its mother.’’ (Internal
quotation marks omitted.) Walsh v. Jodoin, 283 Conn.
187, 201, 925 A.2d 1086 (2007).
Given these strong public policies, this court has held
that ‘‘[c]ontempt proceedings are a proper means of
enforcing a court order of child support. A willful failure
to pay court ordered child support as it becomes due
constitutes indirect civil contempt.’’ Mulholland v. Mul-
holland, 31 Conn. App. 214, 220, 624 A.2d 379 (1993),
aff’d, Mulholland v. Mulholland, supra, 229 Conn. 654.
‘‘Contempt is a disobedience to the rules and orders of
a court . . . .’’ (Internal quotation marks omitted.) DPF
Financial Holdings, LLC v. Lyons, 129 Conn. App. 380,
385, 21 A.3d 834 (2011). ‘‘Sanctions for civil contempt
may be either a fine or imprisonment; the fine may be
remedial or it may be the means of coercing compliance
with the court’s order and compensating the complain-
ant for losses sustained.’’ (Internal quotation marks
omitted.) Id.
With respect to a request for attorney’s fees in a
contempt proceeding, ‘‘ordinarily, courts in this country
do not award attorney’s fees to the prevailing party
unless . . . the payment of such fees is provided for by
statute. . . . The authority of the trial court to award
attorney’s fees following a contempt proceeding is well
settled. Once a contempt has been found, [General Stat-
utes § 52-256b (a)]10 establishes a trial court’s power to
sanction a noncomplying party through the award of
attorney’s fees. . . . The award of attorney’s fees in
contempt proceedings is within the discretion of the
trial court.’’ (Footnote in original; internal quotation
marks omitted.) Gina M. G. v. William C., 77 Conn.
App. 582, 594–95, 823 A.2d 1274 (2003); see id., 584, 595
(mother found in contempt for violation of visitation
order for minor child born out of wedlock and trial
court’s award of attorney’s fees was reasonable to com-
pensate father for expenses incurred in enforcing visita-
tion order).
There are several statutes that provide authority for
a Superior Court judge or a family support magistrate
to award attorney’s fees in a domestic relations matter.
For example, General Statutes § 46b-62 (a) provides
that the court, in a dissolution action, may order either
spouse or parent, in applicable proceedings, to pay the
reasonable attorney’s fees of the other in accordance
with their respective financial abilities and the criteria
set forth in General Statutes § 46b-82. General Statutes
§ 46b-87 provides that the court may order a contemnor
to pay the reasonable attorney’s fees of the other party
for the violation of support orders entered in a dissolu-
tion action or modification proceeding. Section 46b-171
(a) (1) (B) provides authority for a Superior Court judge
or a family support magistrate to award reasonable
attorney’s fees in a paternity proceeding. Section 46b-
215 (a) (8) (C) provides that a Superior Court judge
or a family support magistrate may find a person in
contempt for violation of support orders for such per-
son’s minor child and may order the contemnor to pay
the reasonable attorney’s fees of the other party.
Nevertheless, the defendant urges this court to con-
clude that the act provides no authority to a family
support magistrate to award attorney’s fees in contempt
proceedings for the violation of child support orders.
We decline to do so. First, as previously discussed,
§ 46b-231 (m) (7) expressly authorizes a family support
magistrate to enforce child support orders entered in
that court by finding the obligor in contempt, and fur-
ther provides that the magistrate ‘‘may make such
orders as are provided by law to enforce a support
obligation . . . .’’ Second, it would violate the well
established public policy that requires parents to pro-
vide for the support of their minor children and prohib-
its discriminating against children born out of wedlock
to hold that support orders for children born out of
wedlock cannot be enforced with the same contempt
sanctions that are available tools to enforce support
orders for children born to married parents. There is
no justification for making such a distinction. See Walsh
v. Jodoin, supra, 283 Conn. 201.
The judgment is affirmed.
In this case the other judges concurred.
1
The defendant does not challenge the family support magistrate’s finding
of contempt or the reasonableness of the amount awarded as attorney’s fees.
2
The state is not a party to this appeal.
3
General Statutes § 46b-162 provides in relevant part: ‘‘The state or any
town interested in the support of a child born out of wedlock may, if the
mother neglects to bring such petition, institute such proceedings against
the person accused of begetting the child, and may take up and pursue any
petition commenced by the mother for the maintenance of the child, if she
fails to prosecute to final judgment. . . .’’
4
The defendant has an associate’s degree in architecture, graduated from
Bayonne University with a degree in construction science, and has a master’s
degree from the University of Connecticut.
5
General Statutes § 46b-231 (n) provides in relevant part: ‘‘(1) A person
who is aggrieved by a final decision of a family support magistrate is entitled
to judicial review by way of appeal under this section.
‘‘(2) Proceedings for such appeal shall be instituted by filing a petition
in superior court for the judicial district in which the decision of the family
support magistrate was rendered not later than fourteen days after filing of
the final decision with an assistant clerk assigned to the Family Support
Magistrate Division . . . . In a IV-D support case, such petitions shall be
accompanied by a certification that copies of the petition have been served
upon the IV-D agency as defined in subsection (b) of this section and all
parties of record. . . .
‘‘(6) The appeal shall be conducted by the Superior Court without a jury
and shall be confined to the record and such additional evidence as the
Superior Court has permitted to be introduced. The Superior Court, upon
request, shall hear oral argument and receive written briefs.
‘‘(7) The Superior Court may affirm the decision of the family support
magistrate or remand the case for further proceedings. The Superior Court
may reverse or modify the decision if substantial rights of the appellant
have been prejudiced because the decision of the family support magistrate
is: (A) In violation of constitutional or statutory provisions; (B) in excess
of the statutory authority of the family support magistrate; (C) made upon
unlawful procedure; (D) affected by other error of law; (E) clearly erroneous
in view of the reliable, probative, and substantial evidence on the whole
record; or (F) arbitrary or capricious or characterized by abuse of discretion
or clearly unwarranted exercise of discretion. . . .’’
6
The trial court concluded that ‘‘[t]here is no restriction on the representa-
tion of counsel by parties involved in IV-D matters. The plaintiff was well
within her rights to hire counsel to represent her in these proceedings.’’
The defendant has not challenged the court’s determination on that issue
in this appeal.
7
General Statutes § 46b-171 (a) provides in relevant part: ‘‘(1) (A) If the
defendant is found to be the father of the child, the court or family support
magistrate shall order the defendant to stand charged with the support and
maintenance of such child, with the assistance of the mother if such mother
is financially able . . . .
‘‘(B) The court or family support magistrate shall order the defendant to
pay such sum to the complainant, or, if a town or the state has paid such
expense, to the town or the state, as the case may be, and shall grant
execution for the same and costs of suit taxed as in other civil actions,
together with a reasonable attorney’s fee . . . .
‘‘(6) Failure of the defendant to obey any order for support made under
this section may be punished as for contempt of court and the costs of
commitment of any person imprisoned therefor shall be paid by the state
as in criminal cases.’’
8
Pursuant to Practice Book § 63-4 (a) (1), the plaintiff filed a preliminary
statement of the issues that indicated that she wished to present for review
the following alternative ground upon which the judgment could be affirmed:
‘‘Whether General Statutes § 46b-231 (b) provides authority for a Family
Support Magistrate to order the payment of attorney’s fees and costs when
enforcing child support orders in a contempt proceeding?’’ The statement
was filed prior to the filing of the defendant’s appellate brief. The plaintiff
briefed this alternative ground in her appellate brief. The defendant’s counsel
declined to file a reply brief.
9
‘‘[I]t is axiomatic that [w]e may affirm a proper result of the trial court
for a different reason.’’ (Internal quotation marks omitted.) Rafalko v. Uni-
versity of New Haven, 129 Conn. App. 44, 51 n.3, 19 A.3d 215 (2011).
10
General Statutes § 52-256b (a) provides: ‘‘When any person is found in
contempt of any order or judgment of the Superior Court, the court may
award to the petitioner a reasonable attorney’s fee and the fees of the officer
serving the contempt citation, such sums to be paid by the person found
in contempt.’’ See Gina M. G. v. William C., 77 Conn. App. 582, 594 n.9,
823 A.2d 1274 (2003).