213 Conn. 373 | Conn. | 1990
The marriage between the plaintiff, Linda DiBerardino, and the defendant, Mario DiBerardino, was dissolved on April 14, 1983, by the judgment of a state trial referee, Hon. Simon S. Cohen, exercising the powers of the Superior Court. Pursuant to the dissolution, the plaintiff was awarded custody of the couple’s two children and the defendant was ordered to make periodic payments toward the children’s support. On March 30, 1988, the state, on behalf of the plaintiff, filed a motion to modify support, alleging that the plaintiff was a recipient of “IV-D”
In his appeal, the defendant makes a wholesale constitutional attack on the validity of General Statutes § 46b-231 (m) (4), a portion of the Family Support Magistrate’s Act, General Statutes § 46b-231 et seq., and also takes issue with the legal and factual basis of the order increasing the amount of his support payments. We find no error.
I
The defendant makes three separate constitutional arguments challenging the validity of the Family Support Magistrate’s Act. The defendant asserts that § 46b-231 (m) (4): (1) violates the equal protection guarantees contained in article first, § 20 of the Connecticut constitution and the fourteenth amendment to the United States constitution,
The defendant’s constitutional claims were neither presented to nor considered by either the family support magistrate or the trial court. “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial.” Practice Book § 4185. We would ordinarily, therefore, decline to address any of the defendant’s various constitutional arguments. Sands v. Sands, 188 Conn. 98, 106, 448 A.2d 822 (1982), cert. denied, 459
Of the three separate claims set forth in the defendant’s statement of the issues, only two, those addressing the appointment of judges and the power of the judiciary, bring into question “the authority of the adjudicative agency whose action was essential to rendition of the judgment.” Id. For this reason, we decline to address the equal protection portion of the defendant’s constitutional claims of error and turn our attention to the defendant’s arguments regarding judicial power and selection. Those claims are predicated upon the defendant’s assertion that the plaintiff’s motion for modification was heard and ruled upon in accordance with General Statutes § 46b-231 (m) (4).
Before we address the merits of the defendant’s claims, it is appropriate for us to detail both the statutory scheme under consideration, as well as the specific proceedings before the family support magistrate and the trial court. The record and transcript in this case reveal that both the parties and the trial court were somewhat daunted by the intertwining nature of § 46b-231 (m) (4) of the Family Support Magistrate’s Act, and § 46b-86, entitled “Modification of alimony or support orders and judgments.” A thorough dissection of the various statutory provisions regarding modification of child support orders reveals that there existed, at the time the parties’ motions were considered, three distinct procedures for hearing such motions. The particular procedure to be followed was dependent upon the status of the parties and the nature of the original support order.
First, § 46b-86 (a)* *****
The record reveals that the plaintiff’s motion was originally directed to the family support magistrate session of the judicial district of Hartford-New Britain, and, in accordance with Practice Book § 479A,*
Hearings on both motions were conducted before magistrate Hutchinson on July 12, August 22, and September 29,1988. At the conclusion of the presentation of testimony, the magistrate made it clear that “this being a modification of a Connecticut dissolution action, I have to do a finding of fact and report, which will contain a recommendation that goes to the Superior Court judge . . . .” The magistrate’s report, entitled “FAMILY SUPPORT MAGISTRATE’S FINDING OF
Having heard argument by both parties, the Superior Court, Kline, J., denied the motion for reargument and approved the findings made by the magistrate. The court then informed the defendant: “You can take an appeal from the decision to approve the findings, or you can make your motion for a rehearing, in accordance with the statute, based upon the decision of the Court.” Thereafter, the defendant, relying upon § 46b-231 (n) (l),
Assuming, in the alternative, that the defendant’s constitutional arguments are applicable to the procedure under § 46b-86 (c), which was actually followed
Finally, the defendant claims that the duties performed by the family support magistrate were an unconstitutional intrusion upon the independent power of the judiciary. Applying our conclusion that the magistrate in this case was performing duties identical to those of an attorney referee, we note that “[t]he state referee system, as a special tribunal, does not encroach upon, and does not unconstitutionally compete with, other constitutional courts. On the contrary, as we noted in Florida Hill Road Corporation [v. Commissioner, 164 Conn. 360, 367, 321 A.2d 856 (1973)], state referees ‘serve the very practical purpose of relieving the court’s crowded dockets.’ ” Monroe v. Monroe, supra, 180; Seal Audio, Inc. v. Bozak, Inc., supra. To be unconstitutional in the context of the separation of powers provided for in article second of our state constitution, “a statute must not only deal with subject-matter which is within the judicial power, but it must operate in an area which lies exclusively under the control of the courts.” State v. Clemente, 166 Conn. 501, 510-11, 353 A.2d 723 (1974). On the facts of this case, we accordingly find no merit to the defendant’s separation of powers challenge to the actions of the family support magistrate.
Regarding the merits of the modification order, the defendant first argues that he is entitled to a reversal of the trial court’s approval of the findings and recommendations of the family support magistrate since those findings and recommendations were reached by utilization of an improper legal standard. The magistrate found that there had been “a substantial change of circumstances of the parties since the child support order was entered.” The defendant’s claim is predicated upon the fact that the magistrate failed to conclude explicitly that this substantial change had been uncontemplated at the time of the entry of the original support order. See Grinold v. Grinold, 172 Conn. 192, 195, 374 A.2d 172 (1976).
“The correctness of a judgment of a court of general jurisdiction is presumed in the absence of evidence to the contrary. We do not presume error. The burden is on the appellant to prove harmful error.” Brook-field v. Candlewood Shores Estates, Inc., 201 Conn. 1, 7, 513 A.2d 1218 (1986). In the absence of a motion for articulation; see Practice Book § 4051; “it would be sheer speculation for this court to assume that the trial court applied the incorrect legal standard.” State v. Crumpton, 202 Conn. 224, 232, 520 A.2d 226 (1987). Since there was ample evidence from which the magistrate could have concluded that the substantial change she found in the circumstances of the parties was uncontemplated at the time of the dissolution decree, we presume that the trial court applied the correct legal standard and conclude that the defendant has not met his burden of proving harmful error.
Finally, the defendant challenges the factual findings made by the family support magistrate, claiming that issues of credibility were ignored and that the evidence presented concerning his son’s reading disability was insufficient to justify the order requiring the defendant to contribute $1000 per year toward a remedial reading program. Our review of these claims “is limited to deciding whether the trial court has abused its legal discretion. As we have repeatedly noted, ‘trial courts have a distinct advantage over an appellate court in
From our review of the report of the family support magistrate, we conclude that there is no merit to the defendant’s claim that the issue of credibility was ignored. The report carefully outlines the evidence presented in support of both parties’ motions for modification, and concludes, based on the evidence outlined above, that the needs of the children, coupled with the financial status of both parties, justified an increase in the amount of the defendant’s support payments. The trial court did not abuse its discretion in adopting the findings and recommendations of the family support magistrate regarding the increase in the defendant’s support payments.
We also conclude that the trial court did not abuse its discretion in adopting the magistrate’s recommendation that the defendant contribute to the cost of a remedial reading program for his son. Unlike the issue of the cost of private secondary education, which we addressed in Hardisty v. Hardisty, supra, in this case there was evidence presented to the family support magistrate that would constitute “a showing of special need or some other compelling justification, for increasing the support obligation of the noncustodial parent who genuinely doubts the value of the program that he is being asked to underwrite.” Id., 265. The magistrate heard evidence regarding the son’s reading disability, as well as the fact that the school system in which he was enrolled did not have a program that could adequately address his needs. Consequently, the magistrate concluded that the problem should “be addressed with the help of a tutor and/or a special read
There is no error.
In this opinion the other justices concurred.
As used throughout this opinion, the shorthand phrase IV-D refers to the statutory scheme set forth in 42 U.S.C. chapter 7 (“Social Security”), subchapter IV (“Grants to States for Aid and Services to Needy Families with Children and for Child-Welfare Services”), part IV-D (“Child Support and Establishment of Paternity”).
Article first, § 20 of our state constitution provides in part: “No person shall be denied the equal protection of the law.”
The fourteenth amendment to the United States constitution provides in part: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
Article fifth, § 2 of our state constitution provides: “The judges of the supreme court and of the superior court shall, upon nomination by the governor, be appointed by the general assembly in such manner as shall by law be prescribed. They shall hold their offices for the term of eight years, but may be removed by impeachment. The governor shall also remove them on the address of two-thirds of each house of the general assembly.”
Article second of our state constitution provides: “The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.”
Article fifth, § 1 of our state constitution provides: “The judicial power of the state shall be vested in a supreme court, a superior court, and such lower courts as the general assembly shall, from time to time, ordain and establish. The powers and jurisdiction of these courts shall be defined by law.”
Article III, § 1 of the United States constitution provides in part: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
As the defendant conceded at oral argument, while potentially persuasive as precedent, opinions of the United States Supreme Court interpreting the separation of powers provisions of the federal constitution are not binding on this court when we are called upon to interpret the corresponding provisions of our state constitution.
General Statutes (Rev. to 1989) § 46b-231 (m) (4) provides: “Motions for modification of existing child and spousal support orders entered by the superior court in IV-D cases shall be brought in the family support magistrate division and decided by a family support magistrate. Family support magistrates, in deciding if a spousal or child-support order should be modified, shall make such determination based upon the criteria set forth in section 46b-84. A person who is aggrieved by a decision of a family support magistrate modifying a superior court order is entitled to appeal such decision in accordance with the provisions of subsection (n) of this section.”
General Statutes (Rev. to 1989) § 46b-86 (c) provides: “When one of the parties, or a child of the parties, is receiving or has received aid or care from the state under its AFDC program as provided in Title IV-A of the
General Statutes § 46b-86 (a) provides in part: “Unless and to the extent that the decree precludes modification, any final order for the periodic pay
General Statutes § 46b-231 (b) (15) provides: “ TV-D support cases’ are actions for child and spousal support under Title IV-D of the Social Security Act and include cases in which support rights have been assigned to the state in APDC cases and in foster care cases or cases in which a person has applied to the Connecticut child support enforcement bureau for child-support enforcement services.”
We note that both General Statutes § 46b-86 (c) and § 46b-231 (m) (4) have been modified by No. 89-360 of the 1989 Public Acts, effective July 1, 1989. Section 46b-86 (c) now provides in part: “[SJuch motion to modify shall be filed with the family support magistrate division lor determination in accordance with subsection (m) of section 46b-231 . ”
Section 46b-231 (m) (4) now provides in part: “Motions for modification of existing child and spousal support orders entered by the superior court in IV-D cases, including motions to modify existing child and spousal support orders entered in actions brought pursuant to chapter 815j, shall be brought in the family support magistrate division and decided by a family
The constitutional implications, if any, of these modifications are not pertinent to our discussion of the defendant’s various constitutional claims.
Practice Book § 479A provides:
“(a) The procedure in any matter which is to be heard and determined by a family support magistrate shall conform, wherever applicable, to the procedure in and for the superior court except as otherwise provided herein.
“(b) (1) Any pleading or motion filed in a family support magistrate matter shall indicate, in the lower right hand comer of the first page of the document, that it is a family support magistrate matter.
*381 “(2) Matters to be heard and determined by a family support magistrate shall be placed on the family support magistrate list.
“(3) Matters on the family support magistrate list shall be assigned automatically by the family support magistrate clerk without the necessity of a written claim. No such matters shall be so assigned unless filed at least five days before the opening of court on the day the list is to be called.
“(4) Matters upon the family support magistrate list shall not be continued except by order of a family support magistrate.”
The trial court inquired why the plaintiffs action had been brought before a family support magistrate rather than the Superior Court. Upon being informed that the state could represent the plaintiff only before a family support magistrate, the trial court opined that, while the plaintiff maintained the right to choose her forum, the matter was “only going to come back up here eventually . . . .”
General Statutes § 46b-231 (n) (1) provides: “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.”
While we agree that the relevant statutory provisions are not models of clarity, a detailed analysis of them leads to the conclusion, as we have
The dissolution decree in this case was entered on April 14,1983, and was, therefore, unaffected by the subsequent amendment to General Statutes § 46b-86 (a), authorizing modification of support orders “whether or not [any] change of circumstances was contemplated at the time of dissolution.” See Darak v. Darak, 210 Conn. 462, 556 A.2d 145 (1989).