19 Conn. App. 76 | Conn. App. Ct. | 1989
The petitioner appeals from the trial court’s judgment dismissing his petition for a new trial pursuant to General Statutes § 52-270.
On November 9, 1987, the petitioner initiated the present action for a new trial pursuant to General Stat
A petition for a new trial is a statutory remedy that is essentially equitable in nature. State v. Grimes, 154 Conn. 314, 325, 228 A.2d 141 (1966). General Statutes § 52-270 sets forth the limited circumstances in which a new trial will be granted. The petitioner has the burden of proving by a preponderance of the evidence that he is entitled to a new trial on the grounds claimed. Johnson v. Henry, 38 Conn. Sup. 718, 719-20, 461 A.2d 1001, cert. denied, 464 U.S. 1011, 104 S. Ct. 533, 78 L. Ed. 2d 714 (1983). The petition is addressed to the sound discretion of the trial court. Rizzo v. Pack, 15 Conn. App. 312, 315, 544 A.2d 252 (1988).
“A petition will never be granted except upon substantial grounds. It does not furnish a substitute for, or an alternative to, an ordinary appeal but applies only when no other remedy is adequate and when in equity and good conscience relief against a judgment should be granted.” State v. Grimes, supra; Rizzo v. Pack, supra. “In considering a petition, trial judges must give first consideration to the proposition that there must be an end to litigation. Krooner v. State, 137 Conn. 58, 68, 75 A.2d 51 (1950).” Johnson v. Henry, supra, 720.
Although General Statutes § 52-270 permits the court to grant a new trial upon proof of “reasonable cause,” the circumstances in which reasonable cause may be found are limited. Wetzel v. Thorne, 202 Conn. 561, 565, 522 A.2d 288 (1987). “The basic test of ‘reasonable cause’ is whether a litigant, despite the exercise of due diligence, has been deprived of a fair opportunity to have a case heard on appeal. ... ‘A new trial may
The plaintiff claims that the trial court erred in failing to find that General Statutes § 46b-172 (b)
We begin our analysis by reviewing the purposes and history of § 46b-172 and paternity matters generally. General Statutes §§ 46b-160 through 46b-179d. General Statutes § 46b-160 sets forth the procedure by which a mother or expectant mother may initiate a paternity action by petitioning the court to establish the paternity of a child born out of wedlock. In a prosecution under § 46b-160, either party, the mother or the putative father, may demand a trial by a jury of six. General Statutes § 46b-164.
General Statutes § 46b-172 provides a procedure by which paternity may be acknowledged in writing by a putative father and mother. Unlike a suit initiated pursuant to § 46b-160, the acknowledgment procedure provides an alternative to a full scale judicial proceeding, and an agreement reached pursuant to it does not require court approval. The acknowledgment procedure may be followed “[i]n lieu of or in conclusion of” a paternity action initiated pursuant to § 46b-160. Once a person signs a written acknowledgment form, that form is filed with the court and has “the same force and effect as a judgment of the court . . . .” General Statutes § 46b-172 (a). As to the issue of paternity, that judgment is res judicata, and is reviewable by the court only through a petition for a hearing on that issue filed within three years of the entry of the judgment. General Statutes § 46b-172 (b). Since its enactment, § 46b-172 (b) has been amended by the legislature and interpreted by our courts and a federal court.
Our review of the legislative history and case law interpreting this section convinces us that the petitioner’s reliance on § 46b-172 (b) and Stone v. Maher,
Since the court’s ruling in Stone v. Maher, our courts have had the opportunity to review that holding and its application. “The class to which the ruling of Stone v. Maher, supra, applies is clearly that of putative fathers who executed a written acknowledgment of paternity pursuant to General Statutes § 46b-172 and were never given an opportunity to litigate the issue of paternity.” (Emphasis added.) Perkins v. Perkins, 3 Conn. App. 322, 326, 487 A.2d 1117 (1985); Stone v.
In response to the decision in Stone v. Maher, the General Assembly amended § 46b-172 (b) to provide a procedure by which a putative father could obtain a hearing on the issue of paternity after signing an acknowledgment form by filing a. petition for a hearing within three years of the judgment. General Statutes (Rev. to 1982) § 46b-172 (b).
In view of the established law in this area, we conclude that there is no “absolute right to be reheard” on the issue of paternity as the petitioner maintains.
Having rejected the petitioner’s claim that he has an absolute right to be reheard on the issue of paternity, and having determined that the petitioner does not fall within the class of persons protected by the holding of Stone v. Maher, supra, we conclude that the trial court did not err in dismissing his petition for a new trial. This case does not present a situation in which a litigant has been deprived of a fair opportunity to have his case heard on appeal so as to constitute “reasonable cause” pursuant to General Statutes § 52-270. The petitioner in this case, aided by his present attorney, chose to waive his right to have his case heard on the merits by stipulating to judgment. That judgment was approved by the trial court. If he was unhappy with this determination, the petitioner’s remedy was to appeal the judgment or move to open it within four months. Accordingly, the petitioner having failed to establish “reasonable cause” or any other grounds
There is no error.
In this opinion the other judges concurred.
General Statutes § 52-270 provides in pertinent part: “causes foe which new trials may be granted, (a) The superior court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. The judges of the superior court may
The stipulation entered into by the parties provided:
“The plaintiff, Lisa A. Searles, and the Defendant, James Bleidner, stipulate as follows:
“1. The Defendant acknowledges paternity of Ryan James Searles born to the plaintiff on August 26,1983 and will sign any request for such documentation by the State of Connecticut or any municipality thereof, including but limited to the requirements of Connecticut General Statutes Section 46b-172.
“2. The Defendant agrees to pay to the plaintiff the lump sum of Five Hundred Fifty Dollars ($550.00), reflecting the plaintiff’s claim for initial costs for the child’s care.
“3. The defendant agrees to pay to the plaintiff the sum of Fifty Dollars ($50.00) per week as support for the minor child.
“4. The plaintiff at the present time carries major medical insurance and the minor child is a beneficiary thereunder. Any medical and dental bills not covered by the plaintiff’s insurance carrier shall be divided equally between the plaintiff and the defendant. The defendant shall have the right in non-emergency medical situations to obtain another medical opinion at his own expense. The parties agree to discuss that course of treatment. The defendant shall not unreasonably withhold consent of such treatment.”
“[General Statutes] Sec. 46b-172. (Formerly Sec. 52-442a). acknowledgment OF PATERNITY AND AGREEMENT TO SUPPORT; JUDGMENT, (a) In lieu of or in conclusion of proceedings under section 46b-160, the written acknowledgment of paternity executed by the putative father of the child when accompanied by a written affirmation of paternity executed and sworn to by the mother of the child and filed with the superior court, for the judicial district in which the mother of the child or the putative father resides shall have the same force and effect as a judgment of that court; and an agreement to support the child by payment of a weekly sum until the child attains the age of eighteen years, together with provisions for reimbursement for lying-in expense, accrued maintenance and reasonable expense of prosecution of the petition, when filed with, and approved by a judge of said court, or in IV-D support cases, a family support magistrate at any time, shall have the same force and effect, retroactively or prospectively in accordance with the terms of said agreement, as an order of support entered by that court, and shall be enforceable and subject to modification in the same manner as is provided by law for orders of the court in such cases. Payments under such agreement shall be made through the family relations office of the superior court. Such written affirmations, acknowledgments and agreements to support shall be sworn to, and shall be binding on the person executing the same whether he is an adult or a minor. Such mother shall not be excused from making such affirmation on the ground that it may tend to disgrace or incriminate her; nor shall she thereafter be prosecuted for any criminal act involved in the conception of the child as to whose paternity she makes affirmation.
“(b) At any time after the filing with the court of any acknowledgment of paternity, upon the application of any interested party, the court or any judge thereof or any family support magistrate in IV-D support cases shall
“[General Statutes] Sec. 46b-164. (Formerly Sec. 52-438). either party may demand trial by jury OF six. In any prosecution under the provisions of this chapter, the trial of the question of facts as to the guilt or innocence of the defendant shall, at the desire of either party, be by a jury of six.”
“[General Statutes] Sec. 46b-170. (Formerly Sec. 52-439a). withdrawal OR settlement. No such petition shall be withdrawn except upon approval of a judge assigned to the court in which the petition was brought. Any agreement of settlement, before or after a petition has been brought, other than an agreement made under the provisions of section 46b-372, between the mother and putative father shall take effect only upon approval of the terms thereof by a judge of the superior court assigned to the [geographical area] in which the mother or the putative father resides and, in the case of children supported by the state or the town, on the approval of the commissioner of human resources, the commissioner of income maintenance or the attorney general. When so approved, such agreements shall be binding upon all persons executing them, whether such person is a minor or an adult.”
The General Assembly’s initial response to Stone v. Maher, 527 F. Sup. 10 (D. 1980), was to permit a putative father to seek review of the issue of paternity by petitioning the trial court for a new trial pursuant to General Statutes § 52-270. General Statutes (Rev. to 1981) § 46b-172 (b), as amended by Public Acts 1981, No. 81-274. The rationale for the change in procedure from new trial to a petition for a hearing was to provide a less cumbersome and more expeditious means for a putative father to seek a hearing. State v. Carter, 3 Conn. App. 235, 238, 486 A.2d 1138 (1985).