235 Conn. 82 | Conn. | 1995
Lead Opinion
The sole issue in this certified appeal is whether, in a marriage dissolution case, minor children who are represented by an attorney appointed by the trial court pursuant to General Statutes § 46b-54,
The prior procedural history and facts are undisputed. The plaintiff, Johanna C. Newman,
In September, 1991, the plaintiff brought this dissolution action, and the defendant filed a cross complaint, both claiming custody of the children, support, alimony and a property distribution. In March, 1992, attorney Sharon Wicks Domfeld was appointed by the court pursuant to § 46b-54; see footnote 1; to represent the minor children. In March, 1993, the trial court, Hon. T. Clark Hull, state trial referee, after what it described as an “almost incredibly bitter battle between the parties,” rendered a judgment dissolving their marriage. In addition to orders of property distribution and nominal alimony to be paid by the defendant to the plaintiff, the court awarded custody of the minor children to the plaintiff, with certain visitation rights in the defendant. The plaintiff was permitted to move with the children to North Carolina. The court also ordered the defendant to pay child support for the two children in the amount of $300 per week.
Thereafter, in September, 1993, the defendant filed a motion to modify the judgment by reducing the amount of child support “in accordance with the child support guidelines presently in effect, and in accordance with his income.”
The defendant’s motion for modification was heard by the trial court, Mihalakos, J., on November 15, 1993. The plaintiffs counsel represented to the court that the plaintiff was residing in North Carolina, that he had explained to her by telephone the previous week that the matter would proceed, that the plaintiff was “without funds ... to come to Connecticut to defend” against the motion, and that “apparently we are going to have to proceed in her absence.” Moreover, the plaintiffs counsel informed the court that he did not have a financial affidavit of the plaintiff, and that he did not know what she was earning because he had “not askfed] her.” When the defendant’s counsel represented to the court that the defendant was relying on the fact that, although he then was receiving unemployment compensation, he was “not working at all,” and that the defendant did not rely at all for his motion on “any of [the plaintiffs] income,” the trial court instructed the defendant to proceed.
The defendant testified that he had lost his last job at the end of July, and that he was receiving $325 per week as unemployment compensation from the state of New Jersey. He also testified that, because he had suffered a heart attack on October 17, 1993, on his physician’s advice he had not sought employment since he had been released from the hospital approximately two weeks earlier. After cross-examination by the plaintiffs counsel, the trial court found, from the defendant’s financial affidavit, that he had a net weekly income of approximately $150.
At that point, the children’s counsel sought to be heard regarding the support obligation. The court denied her request.
The Appellate Court ultimately dismissed the minor children’s appeal, on the ground that the “appeal, brought in the name of the minor children, without a next friend or the appointment of a guardian ad litem, is improper.”
We granted the minor children’s petition for certification, limited to the following issue: “Did the Appellate Court properly conclude that minor children, acting through counsel appointed pursuant to General Statutes § 46b-54 and not through a guardian ad litem or next friend, lack standing to appeal from a trial court’s order regarding their support?” Newman v. Newman, 231 Conn. 928, 648 A.2d 879 (1994). This appeal followed.
We note, initially, that our phrasing of this certified question was improper. The Appellate Court did not conclude that the minor children lacked standing to appeal.
The minor children raise several closely related arguments in support of their right to appeal in their own name. First, they argue that “[t]here is ample precedent in Connecticut for considering children to be ‘parties’
Second, the minor children argue that they are aggrieved by the trial court’s decision in two ways. They are statutorily aggrieved, they assert, because they have a statutory right to be supported by both parents pursu
Fourth, the minor children point out, as did the Appellate Court, that the absence from the appeal of a guardian ad litem or next friend is a mere irregularity that does not affect the Appellate Court’s jurisdiction. They contend, therefore, that the defendant’s motion to dismiss was untimely because the appeal had been filed on December 6, 1993, and the motion to dismiss was not filed until January 24, 1994, which was beyond the ten day time limit provided by Practice Book § 4056.
The defendant responds in kind.
Second, the defendant maintains that the minor children lacked standing to appeal because they did not act through a guardian or next friend. Because the minor
Third, the defendant argues that, even if their lack of party status in the trial court and the absence of a guardian ad litem or next friend were not dispositive, the minor children lacked standing to appeal because they were not aggrieved by the trial court’s ruling. The defendant asserts that, because the order of support in this case is payable to the plaintiff, their mother, only she has a direct legal interest in the order, and that they “have at best an indirect practical interest.”
Finally, the defendant offers several policy considerations in support of the Appellate Court’s judgment. These are that permitting such an appeal: (1)“pits the children against their parents” — against their father by forcing him to destitution “probably without [their] knowing it,” and against their mother, who chose not to contest the modification — in contravention of the public policy against unwarranted intrusions into the family unit; (2) encourages the pursuit of “merely color-able claims though the chances of winning are slim and the expense prohibitive,” because “the children could not possibly suffer any harm from an appeal, not even an award of costs,” and an unprincipled attorney for a child might appeal solely to generate a fee;
Thus, both parties present this case as an all or nothing proposition. The minor children claim that they have an unrestricted right to appeal irrespective of the presence of a guardian ad litem or next friend. The defendant claims that the minor children have no right to appeal whatsoever, absent the presence of a guardian ad litem or next friend. We conclude, however, that the appropriate rule is somewhere in between: by analogy to § 46b-54, which articulates the standard for appointment of, and participation by, counsel for minor children in a dissolution of marriage case, the counsel for minor children in such a case may file an appeal on their behalf from an order regarding their support, without the intervention of a guardian ad litem or next friend, if the minor children first persuade the trial court that it is in their best interests to take such an appeal.
We begin our analysis by acknowledging the strength of the precedents and policies urged by the defendant. The right to appeal is purely statutory, and only an aggrieved party may appeal. Durso v. Misiorek, 200 Conn. 656, 660, 512 A.2d 917 (1986). In the context of dissolution actions, only those who were parties to the underlying dissolution action may appeal. Bergeron v. Mackler, 225 Conn. 391, 391-92 n.1, 623 A.2d 489 (1993). Moreover, “[ojrdinarily, the term party has a technical legal meaning, referring to those by or against whom a legal suit is brought . . . the party plaintiff or defendant . . . .” (Internal quotation marks omitted.) Lieberman v. Reliable Refuse Co., 212 Conn. 661, 669, 563 A.2d 1013 (1989). We implicitly have recognized that definition to exclude the minor children of parents involved in a dissolution action, absent some additional effort to make the children formal parties to that action. Salvio v. Salvio, supra, 186 Conn. 324.
Although these precedents limit the right of a minor child to bring an action in the trial court, we see no reason not to apply their principles to the right of appeal as well. As a general matter, there is no reason to afford
The policy arguments proffered by the defendant also have much to commend them. Affording the minor children in a dissolution action an unrestricted right to appeal orders regarding their support carries with it significant risks of widening the fissures in an already sorely tried family, and of imposing burdens on the noncustodial parent and the legal system that may well outweigh the potential benefits.
Furthermore, absent special circumstances; see, e.g., Salvio v. Salvio, supra, 186 Conn. 324; there are good reasons not to consider the minor children as “parties” to the dissolution action or to require that they formally be made such parties. Treating the children as parties might well force them to choose sides and thus threaten to exacerbate their already heavy emotional burden, and would add a level of participation — even if only symbolic in most cases — that is inconsistent with a wise attempt to shield them as much as reasonably possible from the legal aspects of their parents’ conflicts.
Additionally, we are concerned about creating conflict in the attorney’s role by conflating the role of counsel for a child with the role of a guardian ad litem or next friend. Typically, the child’s attorney is an advocate for the child, while the guardian ad litem is the representative of the child’s best interests. As an advocate, the attorney should honor the strongly articulated preference regarding taking an appeal of a child who is old enough to express a reasonable preference; as a guardian, the attorney might decide that, despite such a child’s present wishes, the contrary course of action would be in the child’s long term best interests, psychologically or financially. We recognized a similar concern in State v. Garcia, 233 Conn. 44, 90 n.36, 658 A.2d 947 (1995), in which we concluded that, because his legal
At the same time, however, there is considerable persuasive power to much of what the minor children offer in support of their position. Although they are not parties to the underlying dissolution action, it cannot be denied that our statutes and precedents regarding the appointment of an attorney to represent their interests in dissolution proceedings do constitute legislative and judicial recognition that the orders entered by the trial courts in such proceedings may affect those interests. Furthermore, the fact that, in the trial court, the law deems it sufficient to protect those interests by way of an appointment of an attorney, rather than also requiring a simultaneous appointment of a guardian ad litem or the naming of a next friend, is an implicit recognition that, under most circumstances, that attorney is an appropriate adult to provide such protection. Also, contrary to the argument of the defendant that the minor children could not be aggrieved in this case because the defendant’s legal obligation of support runs only to the plaintiff, the legal obligation of support for minor children runs, not solely to the custodial parent, but directly to the children as well. See In re Bruce R., 234 Conn. 194, 209-10, 662 A.2d 107 (1995).
These considerations supporting the position of the minor children in this appeal are sufficient to persuade us that there may be circumstances in which the precedents and policies in favor of the general rule should
Why, then, it may be asked, is it necessary in such a case to permit the minor children to appeal through their attorney, rather than simply to require them to secure the appointment of a guardian ad litem or the naming of a next friend — who conceivably could be the same attorney? The answer is that, if the law were to require that course in such a case, the law would be elevating form over substance. Presumably, if the trial court were to be asked to appoint a guardian ad litem or to pass upon the naming of a next friend; see Orsi v. Senatore, supra, 230 Conn. 467; solely for the purpose of permitting such an appeal, the court in doing so would have to take into account the best interests of the child. Anything less would be an abdication of the court’s independent obligation for the welfare of the children before it, an obligation that has deep roots in our jurisprudence. See Apthorp v. Backus, 1 Kirby (Conn.) 407, 409-10 (1788) (“the court under whose inspection the suit [by a minor’s next friend] is prosecuted, is bound to take care for the infant; and if the prochein ami is not a responsible and proper person, or misconducts the suit, or institutes one not apparently for the benefit of the infant, will displace him, and, if need be, appoint another”). Thus, in such a case, if the
We conclude, therefore, that there is a need for a rule that will accommodate both the precedents and policies that we have outlined in favor of the general rule requiring that minor children may appeal only through a guardian or next friend and the limited circumstances where those precedents and policies may not sufficiently protect the best interests of the minor children. The question, then, is how to formulate that rule.
“It is when the colors do not match, when the references in the index fail, when there is no decisive precedent, that the serious business of the judge begins.” B. Cardozo, The Nature of the Judicial Process (1921) p. 21. In this case, the colors do not match, and we are called upon to exercise our creativity as common law judges to create an exception to the general rule that will accomplish the accommodation between, on one hand, prior precedent and policies and, on the other hand, the perceived need for a rule that will fill the interstices of those precedents and policies.
We find that accommodation in the contours of § 46b-54. See footnote 1. That statute governs the appointment of, and the degree of participation by, counsel for minor children in a dissolution action between their parents. It provides in relevant part that the court may appoint such counsel “if the court deems it to be in the best interests of the child or children”; General Statutes § 46b-54 (a); and that such counsel “shall be heard on all matters pertaining to the interests
Using that statutory standard for a determination of when minor children may appeal without the necessity of the court appointing a guardian ad litem or passing upon the naming of a next friend, we hold that they may do so if the minor children first persuade the trial court that such an appeal is in their best interests.
We have on occasion looked to statutes as a source of policy for common law adjudication, particularly where there is a close relationship between the statutory and common law subject matters. See Fahy v. Fahy, 227 Conn. 505, 514-16, 630 A.2d 1328 (1993) (modification of alimony need not be based on change of circum
There is a close relationship between the protection of the interests of minor children in the trial court and the need for similar protection of those interests by way of an appeal from a trial court order regarding the support of those children, when no other appeal aimed at protection of those interests is being prosecuted. Thus, both ought to be governed by the same standard, namely, the best interests of the children.
Furthermore, although the right of appeal is purely statutory pursuant to § 52-263, the definition of aggrievement for purposes of determining whether a party may appeal from a final judgment had its inception, and consistently has been applied as, a judicial, common law gloss on the term “aggrievement” in that statute, rather than having been drawn from any particular statutory definition or origin. See Waterbury Trust Co. v. Porter, 130 Conn. 494, 498-99, 35 A.2d 837 (1944); cf. Water Pollution Control Authority v. Dept. of Environmental Protection, 234 Conn. 488, 493, 662 A.2d 124 (1995). Thus, just as in Fahy, wherein we relied on the fact that a statutory requirement had its inception in judicial, common law adjudication, in this case we rely on the fact that the statutory concept of aggrievement has a similar origin. Moreover, the general rule requiring the appointment of a guardian or next friend for a minor to prosecute an action or appeal is a common law, judicially created rule, and is not statutory in origin. See Apthorp v. Backus, supra, 1 Kirby 409. Thus, there is no jurisprudential impediment to creating, by way of common law adjudication, an exception to that rule.
There may be instances in which the functions of counsel for minor children differ fundamentally from
We turn next to the defendant’s contention that the absence of a guardian ad litem or next Mend deprives the minor children of standing to appeal because, in the absence of such representatives, the minor children have no right to set the appellate machinery in motion. We disagree, because that contention is inconsistent with the precedents that recognize the requirement of such representatives. Lack of standing is a subject matter jurisdictional defect that cannot be waived. Sadloski v. Manchester, 228 Conn. 79, 83-84, 634 A.2d 888 (1993). As the Appellate Court aptly noted, however, “the bringing of an action for the minor child without the aid of a next Mend or guardian ad litem is an amendable irregularity which could be waived. Collins v. York, [supra, 159 Conn. 154].” (Internal quotation marks omitted.) Newman v. Newman, supra, 35 Conn. App. 453-54. Thus, the lack of a guardian or next Mend does not deprive the children of standing to appeal.
As we have indicated, the first part of the test is met in a case such as this because the parent’s support obligation runs, not only to the noncustodial parent, but directly to the minor children as well. The second part ordinarily also would be met by an order reducing or eliminating a support obligation, because there would be at least a possibility that the reduction or elimination of the amount of support payable by the noncustodial parent would mean a reduction in the total amount of money available to provide for such commonly indivisible items as food and shelter for the custodial family unit of which the minor children are a part.
Finally, we turn to the nature of the trial court’s considerations in determining whether to authorize an appeal under the standards that we have articulated. Without attempting to limit the trial court’s examination of all of the available facts and circumstances regarding
In summary, we conclude that the general rule is that minor children may not appeal from a trial court order in a dissolution case regarding their support in the absence of a guardian or next friend. An exception to that rule is that the counsel for the minor children appointed pursuant to § 46b-54 may file such an appeal on their behalf if the children, through their counsel, first persuade the trial court that it is in their best interests to do so. The court should take all available information into account in making that determination. If the court grants the request, the minor children will be deemed to be parties within the contemplation of General Statutes § 52-263 and Practice Book § 4000. If the court denies the request, the court’s ruling will be subject to appellate review under an abuse of discretion standard. See footnote 17.
The judgment of the Appellate Court is reversed, and the case is remanded to that court with direction to remand the case to the trial court for further proceedings in accordance with this opinion.
In this opinion Peters, C. J., and Callahan and Katz, Js., concurred.
General Statutes § 46b-54 provides: “Counsel for minor children. Duties, (a) The court may appoint counsel for any minor child or children of either or both parties at any time after the return day of a complaint under section 46b-45, if the court deems it to be in the best interests of the child or children. The court may appoint counsel on its own motion, or at the request of either of the parties or of the legal guardian of any child or at the request of any child who is of sufficient age and capable of making an intelligent request.
“(b) Counsel for the child or children may also be appointed on the motion of the court or on the request of any person enumerated in subsection (a) of this section in any case before the court when the court finds that the custody, care, education, visitation or support of a minor child is in actual controversy, provided the court may make any order regarding a matter in controversy prior to the appointment of counsel where it finds immediate action necessary in the best interests of any child.
“(c) Counsel for the child or children shall be heard on all matters pertaining to the interests of any child, including the custody, care, support, education and visitation of the child, so long as the court deems such representation to be in the best interests of the child.”
Thus, in this case we reach and decide the issue that we found unnecessary to decide in Knock v. Knock, 224 Conn. 776, 777 n.1, 621 A.2d 267 (1993) (“[bjecause the minor child’s claims on appeal are also raised by the plaintiff, we need not decide whether the minor child is a party to this action and capable of individually appealing”).
Newman v. Newman, 231 Conn. 928, 648 A.2d 879 (1994).
The plaintiff has not participated in this appeal.
The defendant had appealed from the judgment of the trial court, Hull, J., and that appeal was pending at the time of the hearing on the motion to modify in this case. The defendant subsequently withdrew that appeal.
The defendant’s financial affidavit disclosed deductions from his weekly unemployment compensation of $65 in income taxes, and $110 m court-ordered health insurance payments.
The following colloquy tookplace: “Ms. Dornfeld: I didhave afewquestions for Mr. Newman on cross that I had not—
“The Court: About what?
“Ms. Domfeld: About his financial affidavit.
“The Court: Why? You represent the children.
“Ms. Dornfeld: Yes, Your Honor, and—
“The Court: Denied. You may take an appeal from that.”
The defendant had moved to dismiss the appeal, claiming that the Appellate Court had no subject matter jurisdiction because of the lack of either a guardian ad litem or next friend. The defendant “contended that the minor children lacked standing to appeal, as they were not parties to the dissolution action and that, due to their status as minors, they could appeal only through a guardian [ad litem] or next friend.” Newman v. Newman, 35 Conn. App. 449, 450, 646 A.2d 885 (1994). The court denied the motion to dismiss without prejudice to the defendant’s raising it at oral argument. Id., 451.
Indeed, the Appellate Court specifically did “not reach the issue of whether the children were aggrieved by the decision determining their support and whether they were, or must be, parties to the action in order to appeal.” Newman v. Newman, supra, 35 Conn. App. 455.
General Statutes § 46b-37 provides: “Joint duty of spouses to support family. Liability for purchases and certain expenses. Abandonment, (a) Any purchase made by either a husband or wife in his or her own name shall be presumed, m the absence of notice to the contrary, to be made by him or her as an individual and he or she shall be liable for the purchase.
“(b) Notwithstanding the provisions of subsection (a) of this section, it shall be the joint duty of each spouse to support his or her family, and both shall be liable for: (1) The reasonable and necessary services of a physician or dentist; (2) hospital expenses rendered the husband or wife or minor child while residing in the family of its parents; (3) the rental of any dwelling unit actually occupied by the husband and wife as a residence and reasonably necessary to them for that purpose; and (4) any article purchased by either which has in fact gone to the support of the family, or for the joint benefit of both.
“(c) Notwithstanding the provisions of subsection (a) of this section, a spouse who abandons his or her spouse without cause shall be liable for the reasonable support of such other spouse while abandoned.
“(d) No action may be maintained against either spouse under the provisions of this section, either during or after any period of separation from the other spouse, for any liability incurred by the other spouse during the separation, if, during the separation the spouse who is liable for support of the other spouse has provided the other spouse with reasonable support.
“(e) Abandonment without cause by a spouse shall be a defense to any liability pursuant to the provisions of subdivisions (1) to (4), inclusive, of subsection (b) of this section for expenses incurred by and for the benefit of such spouse. Nothing in this subsection shall affect the duty of a parent to support his or her minor child.”
General Statutes § 46b-84 provides: “Parents’ obligation for maintenance of minor child. Order for health insurance coverage, (a) Upon or subsequent to the annulment or 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 maintain the child according to their respective abilities, if the child is in need of maintenance.
“(b) If there is an unmarried child of the marriage who has attained the age of eighteen, is a full-time high school student and resides with a parent, the parents shaE maintain the child according to their respective abüities if the child is in need of maintenance until such time as such child completes the twelfth grade or attains the age of nineteen, whichever first occurs. The provisions of this subsection shall apply only in cases where the decree of dissolution of marriage, legal separation or annulment is entered on or after July 1, 1994.
“(c) In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health,
“ (d) At any time at which orders are entered in a proceeding for dissolution of marriage, annulment, legal separation, custody, or support, whether before, at the time of, or after entry of a decree or judgment, if health insurance coverage for a child is ordered by the court to be maintained, the court shall provide in the order that (1) the signature of the custodial parent or custodian of the insured dependent shall constitute a valid authorization to the insurer for purposes of processing an insurance reimbursement payment to the provider of the medical services, to the custodial parent or to the custodian, (2) neither parent shall prevent or interfere with the timely processing of any insurance reimbursement claim and (3) if the parent receiving an insurance reimbursement payment is not the parent or custodian who is paying the bill for the services of the medical provider, the parent receiving such insurance reimbursement payment shall promptly pay to the parent or custodian paying such bill any insurance reimbursement for such services. For purposes of subdivision (1), the custodial parent or custodian is responsible for providing the insurer with a certified copy of the order of dissolution or other order requiring maintenance of insurance for a child provided if such custodial parent or custodian fails to provide the insurer with a copy of such order, the commissioner of social services may provide the insurer with a copy of such order. Such insurer may thereafter rely on such order and is not responsible for inquiring as to the legal sufficiency of the order. The custodial parent or custodian shall be responsible for providing the insurer with a certified copy of any order which materially alters the provision of the original order with respect to the maintenance of insurance for a child. If presented with an insurance reimbursement claim signed by the custodial parent or custodian, such insurer shall reimburse the provider of the medical services, if payment is to be made to such provider under the policy, or shall otherwise reimburse the custodial parent or custodian.
“(e) After the granting of a decree annulling or dissolving the marriage or ordering a legal separation, and upon complaint or motion with order and summons made to the superior court by either parent or by the commissioner of administrative services in any case arising under subsection (a) or (b) of this section, the court shall inquire into the child’s need of maintenance and the respective abilities of the parents to supply maintenance. The court shall make and enforce the decree for the maintenance of the child as it considers just, and may direct security to be given therefor, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. The court may order either parent to name any child who is subject to the provisions of subsection (a) or (b)
“(f) Whenever an obligor is before the court in proceedings to establish, modify or enforce a support order, and such order is not secured by a wage garnishment, the court may require the obligor to execute a bond or post other security sufficient to perform such order for support, provided the court finds that such a bond is available for purchase within the financial means of the obligor. Upon failure of such obligor to comply with such support order, the court may order the bond or the security forfeited and the proceeds thereof paid to the state in AFDC cases or to the obligee in non-AFDC cases.”
Practice Book § 4056 provides: “Any claim that an appeal or writ of error should be dismissed, whether based on lack of jurisdiction, failure to file papers within the time allowed or other defect, shall be made by a motion to dismiss the appeal or writ. Any such motion must be filed in accordance with Secs. 4041 and 4042 within ten days after the filing of the appeal or the return day of the writ, or if the ground alleged subsequently occurs, within ten days after it has arisen, provided that a motion based on lack of jurisdiction may be filed at any time. The court may on its own motion order that an appeal be dismissed for lack of jurisdiction.”
Some of the defendant’s arguments consist of responses to the certified question as originally phrased. Some are presented in effect as alternate grounds on which to affirm the Appellate Court’s judgment. We consider all of the arguments together.
General Statutes § 52-263 provides: “Appeals from superior court. Exceptions. Upon the trial of all matters of fact in any cause or action in the superior court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in sections 8-8 and 8-9.”
Practice Book § 4000 provides: “If a party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, that party may appeal from the final judgment of the court or of such judge, or from a decision setting aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in Gen. Stat. §§ 8-8,8-9,8-28 and 8-30.”
The defendant in no way implies that this is the case in this appeal and, indeed, describes the children’s counsel here as “highly principled.”
In this respect, we also borrow from General Statutes § 52-470 (b), which permits a habeas corpus litigant to appeal upon a certification by the trial court “that a question is involved which . . . ought to be reviewed” on appeal. Similarly, if in a given case the trial court granted or denied the minor children’s request to prosecute an appeal without either a guardian ad litem or next friend, that grant or denial would be subject to review on appeal under an abuse of discretion standard. Cf. Simms v. Warden, 229 Conn. 178, 198-99, 640 A.2d 601 (1994).
Concurrence Opinion
concurring. I agree with the majority that an attorney appointed for a minor child pursuant to General Statutes § 46b-54 may appeal on behalf of the child any judgment of the trial court that affects the child, provided the trial court determines that such an appeal is in the child’s best interests.
I reach this conclusion, however, based solely on § 46b-54,
Section 46b-54 acknowledges what authorities on the subject have widely recognized — the need for children to be permitted separate party status and representation in divorce and custody proceedings. See J. Goldstein, A. Freud & A. Solnit, Beyond the Best Interests of the Child (1979) pp. 65-67 (regarding custody of child, “court cannot do ‘complete justice’ unless the child is recognized as a necessary, indeed, indispensable party to the proceedings .... This is because children, far from sharing the adults’ concerns, are frequently put in direct conflict . . . [and] their rights cannot be represented adequately by either the adult claimant or the adult defendant. . . .”); see also S. Lefco, “The Child as a Party in Interest in Custody Proceedings,” 10 Ga. St. B.J. 577, 581 (1974) (permitting only parental parties in divorce proceedings to argue their own most favor
I recognize that very complex issues may arise in circumstances in which a child, without a guardian ad litem or next friend, is represented by an attorney appointed pursuant to § 46b-54. Nevertheless, none of these issues has been raised in this appeal. Furthermore, there is no evidence that by advocating the children’s entitlement to support in this case, the children’s attorney was not acting in their best interests. Therefore, such a conflict is not at issue here and those issues must be left for another day.
Accordingly, I agree with the result.
General Statutes § 46b-54 provides: “Counsel for minor children. Duties, (a) The court may appoint counsel for any minor child or children of either or both parties at any time after the return day of a complaint under section 46b-45, if the court deems it to be in the best interests of the child or children. The court may appoint counsel on its own motion, or at the request of either of the parties or of the legal guardian of any child or at the request of any child who is of sufficient age and capable of making an intelligent request.
“(b) Counsel for the child or children may also be appointed on the motion of the court or on the request of any person enumerated in subsection (a) of this section in any case before the court when the court finds that the custody, care, education, visitation or support of a minor child is in actual controversy, provided the court may make any order regarding a matter in controversy prior to the appointment of counsel where it finds immediate action necessary in the best interests of any child.
“ (c) Counsel for the child or children shall be heard on all matters pertaining to the interests of any child, including the custody, care, support, education and visitation of the child, so long as the court deems such representation to be in the best interests of the child.”