200 Conn. 656 | Conn. | 1986
The sole issue on this appeal after certification from the Appellate Court is whether, in a paternity action involving a public assistance recipient under General Statutes § 46b-160,
The decision of the Appellate Court fully describes the relevant procedural history of the case. Durso v. Misiorek, 3 Conn. App. 212, 485 A.2d 1309 (1985). The plaintiff brought this action pursuant to General Statutes § 46b-160, which provides that “[proceedings to establish paternity of a child born or conceived out of lawful wedlock, including one born to, or conceived by, a married woman but begotten by a man other than her husband, shall be instituted by a verified petition of the mother or expectant mother, with summons and order . ” The plaintiff was at the time a recipient of state aid to families with dependent children and her attorney was selected pursuant to § 17-82e-6*
After receiving briefs and hearing oral argument, the Appellate Court, on January 22,1985, sua sponte dismissed the appeal for lack of jurisdiction.* *
When rendering judgment, the Appellate Court did not have the benefit of our decision in Lavertue v. Niman, 196 Conn. 403, 493 A.2d 213 (1985), where we held that indigent defendants in state-supported pater-
The Appellate Court mistakenly relied on our decision in Mendez v. Mendez, 160 Conn. 237, 278 A.2d 795 (1971), where an appeal was brought by the attorney general and the wife from a judgment granting the husband a divorce. The trial court had determined that two minor children were not the issue of the marriage. We dismissed the appeal because the wife had not taken an active part in the appeal and “[njeither the state nor the attorney general was named as a party in the complaint and no order of court joining either as a party appears to have been made.” Id., 239. At the time Mendez was decided, however, there was no statute, as here, making the attorney general an automatic party to the proceedings. The case is therefore inapposite. Interestingly enough, a few months following the Mendez decision, the legislature passed what is now General Statutes § 46b-55 (a) which provides: “The attorney general shall be and remain a party to any action for dissolution of marriage, legal separation or annulment, and to any proceedings after judgment in
We also cannot agree with the Appellate Court’s conclusion that the attorney general must participate at trial in order to have standing to appeal. Durso v. Misiorek, supra, 214. First, General Statutes § 46b-160 does not require the attorney general to participate at trial and the regulatory scheme is structured to allow the plaintiff to proceed with private counsel. See Regs., Conn. State Agencies § 17-82e-6. Indeed, it may not always be advisable for the attorney general to take an active role at trial. The state has two conflicting interests: on the one hand, as parens patriae, it has the obligation to insure that the child’s father is accurately determined, and on the other hand, it has a financial interest in seeking reimbursement from the child’s putative father. See Lavertue v. Niman, supra, 409. Thus, the state’s presence at trial may in some cases only serve to confuse the jury. Secondly, participation at trial is not a requisite element of standing. See Miner v. Marsh, 102 Conn. 600, 603, 129 A. 547 (1925). Finally, as the defendant pointed out at oral argument, the state would in all likelihood be estopped from contesting the unfavorable judgment of the trial court in a collateral action for support payments. It would be unfair to hold, as the defendant nevertheless suggests, that the attorney general, without participating at trial, is unable to appeal from and yet is bound by the judgment of the trial court.
The Appellate Court therefore erred in concluding that the attorney general had no standing on the grounds that he was not a party to the proceedings and did not participate at trial.
In this opinion the other justices concurred.
General Statutes § 46b-160 provides: “Proceedings to establish paternity of a child born or conceived out of lawful wedlock, including one born to, or conceived by, a married woman but begotten by a man other than her husband, shall be instituted by a verified petition of the mother or expectant mother, with summons and order, filed in the superior court for the geographical area in which either she or the putative father resides. For trial purposes, jurors shall be selected from the judicial disctrict in which such geographical area is located. In cases involving public assistance recipients the petition shall also be served upon the attorney general who shall be and remain a party to any paternity proceeding and to any proceedings after judgment in such action. Upon the filing of such petition, said court or any judge assigned to said court shall cause a summons, signed by him or by the clerk or assistant clerk of said court, to be issued, requiring the putative father to appear in court at a time and place named therein to show cause, if any he has, why the prayer of such petition should not be granted. Such petition, summons and order shall be in a form approved by the judges of the superior court. In the case of a child or expectant mother being supported wholly or in part by the state, service of such petition may be made by any investigator employed by the department of human resources or the department of income maintenance. No such petition shall be brought after three years from the birth of such child, or after three years from cessation of contribution toward support of the child by the putative father, whichever is later; provided the provisions of section 52-590
Regs., Conn. State Agencies § 17-82e-6 (3) provides: “Paternity proceedings are handled by private attorneys. The mother can select an attorney of her choice or, if she has none, the child support unit will give names of at least three attorneys from which to make a choice. She must make a
The parties did not raise the issue of standing in their arguments before the Appellate Court. Durso v. Misiorek, 3 Conn. App. 212, 213, 485 A.2d 1309 (1985). The Appellate Court was of course obligated to consider its jurisdiction to hear the appeal despite the parties’ failure to raise it. Ardmore Construction Co. v. Freedman, 191 Conn. 497, 498 n.4, 467 A.2d 674 (1983).
The United States Supreme Court in Little v. Streater, 452 U.S. 1, 9, 101 S. Ct. 2202, 68 L. Ed. 2d 627 (1981), recognized that Connecticut’s involvement in paternity proceedings “was considerable and manifest, giving rise to a constitutional duty. Because [the mother’s] child was a recipient of public assistance, Connecticut law compelled her, upon penalty of fine and imprisonment for contempt, ‘to disclose the name of the putative father under oath and to institute an action to establish the paternity of said child.’ Conn. Gen. Stat. § 46b-169 (1981). See Maher v. Doe, 432 U.S. 526 [97 S. Ct. 2474, 53 L. Ed. 2d 534] (1977); Roe v. Norton, 422 U.S. 391 [95 S. Ct. 2221, 45 L. Ed. 2d 268] (1975). The State’s Attorney General automatically became a party to the action, and any settlement agreement required his approval or that of the Commissioner of Human Resources or Commissioner of Income Maintenance. See Conn. Gen. Stat. §§ 46b-160 and 46b-170 (1981).” (Emphasis added.)
The attorney general in his brief has also addressed the related issue of aggrievement. The Appellate Court never reached the issue, however,