163 Conn.App. 565
Conn. App. Ct.2016Background
- The state filed a paternity/IV-D petition; family support magistrates entered paternity and child support orders against Hernandez.
- After repeated alleged nonpayment, O’Toole filed a postjudgment contempt motion for child support arrears.
- At a hearing Magistrate Fusco found Hernandez in contempt, ordered incarceration until a purge payment, and ordered Hernandez to pay O’Toole $1,154.47 in attorney’s fees.
- Hernandez appealed to Superior Court arguing a family support magistrate lacks statutory authority to award attorney’s fees in contempt proceedings and that IV-D procedures negate the mother’s right to hire counsel.
- The Superior Court affirmed, relying on statutory provisions; the Appellate Court affirms on the alternative ground that § 46b-231 authorizes magistrates to order fees when enforcing support by contempt.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a family support magistrate has statutory authority to award attorney’s fees in a contempt proceeding enforcing child support | O’Toole: § 46b-231 authorizes magistrates to enforce support and make orders "provided by law," including fee awards; magistrate may award fees in contempt | Hernandez: No express statutory authority in the Family Support Magistrate Act to award attorney’s fees in contempt; thus fee order exceeded magistrate’s power and violated due process | Court: Affirmed—§ 46b-231(m)(7) lets magistrates enforce orders by contempt and make orders as provided by law; awarding attorney’s fees is authorized (alternative statutory basis) |
| Whether IV-D involvement bars a private attorney fee award to the mother | O’Toole: A party in IV-D cases may still retain counsel and seek fees | Hernandez: Plaintiff effectively had no right to hire counsel because IV-D agency represents her interests | Court: Rejected defendant’s contention; no restriction on hiring counsel in IV-D matters (trial court finding unchallenged) |
Key Cases Cited
- Perry v. Perry, 222 Conn. 799 (Conn. 1992) (background on creation and purpose of Family Support Magistrate Division)
- Pritchard v. Pritchard, 103 Conn. App. 276 (Conn. App. 2007) (magistrates are creatures of statute; their powers are defined and limited by statute)
- Mulholland v. Mulholland, 229 Conn. 643 (Conn. 1994) (willful failure to pay child support constitutes civil contempt; contempt is proper enforcement tool)
- Walsh v. Jodoin, 283 Conn. 187 (Conn. 2007) (equally enforceable support rights for children born out of wedlock)
- Gina M. G. v. William C., 77 Conn. App. 582 (Conn. App. 2003) (trial court authority to award attorney’s fees in contempt proceedings under § 52-256b)