31 Conn. App. 114 | Conn. App. Ct. | 1993
The defendant father, David Lozada, appeals from the trial court’s decision to dismiss his
The state applied to the family support magistrate division of the Superior Court on October 28,1991, for an order pursuant to § 46b-l 72 (b) directing the defendant to show cause why a child support judgment should not be entered against him. Because the plaintiff and her sons were receiving benefits under the Aid to Families with Dependent Children (AFDC) program, this matter fell within the definition of a IV-D support case under General Statutes § 46b-231 (b) (15).
The state then moved to dismiss the cross complaint pursuant to Practice Book § 142, arguing that the Superior Court lacked subject matter jurisdiction to hear the issues raised in the cross complaint involving custody and visitation because the cross complaint was brought in response to the application for a show cause order in a IV-D support case, and only the family support magistrate had jurisdiction to hear IV-D support cases. General Statutes §§ 46b-172 and 46b-231 (b) (15).
“The Connecticut Family Support Magistrate’s Act, General Statutes §§ 46b-231 through 46b-235, was first enacted in 1986 in response to federal legislation providing federal funds for states that complied with federal requirements for the expeditious enforcement of child support orders in cases arising under Title IY-D. See Public Acts 1986, No. 86-359; ‘Child Support Enforcement Amendments of 1984,’ Pub. L. No. 98-378, 98 Stat. 1305 (1984), now codified in various sections of 42 U.S.C. §§ 651 through 675.” Perry v. Perry, 222 Conn. 799, 806, 611 A.2d 400 (1992). The enactment of § 46b-231 (d) created “ ‘the family support magistrate division of the superior court for the purpose of the impartial administration of child and spousal support.’ ” Perry v. Perry, supra, 807. This legislation was enacted to address the legislature’s “concern for the timely and effective collection of support payments arising out of child and spousal support rights under Title IV-D of the Social Security Act, 42 U.S.C. § 651 et seq.” Perry v. Perry, supra, 806.
The present case is a IV-D support case. Thus, an assignment of support rights became effective upon operation of state law when the plaintiff signed her application for public assistance. General Statutes § 17-82b.
The issue before us is analogous to the issue before our Supreme Court in Atlantic Refining Co. v. O’Keefe, 131 Conn. 528, 41 A.2d 109 (1945). There our Supreme Court found that the defendant could not interpose a counterclaim in a summary process action to secure the transfer of the action from the jurisdiction of the justice of the peace, who could not hear the counterclaim, to the Superior Court.
Finally, we note that the defendant is not left without recourse since he can initiate an action in the Superior Court. Section 46b-61 provides for custody and support actions that may be brought when the parents live separately. Such an action may address custody and visitation issues.
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 46b-172 (b) provides in pertinent part: “fU]pon the application of any interested party, the court or any judge thereof or any family support magistrate in IV-D support cases shall cause a summons . . . 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 court or the family support magistrate assigned to the judicial district in IV-D support cases should not enter judgment for support of the child . . .
General Statutes § 46b-231 (b) (15) defines IV-D support cases as “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 AFDC cases and in foster care cases or cases in which a person has applied to the support enforcement division of the superior court for child-support enforcement services.”
General Statutes § 46b-231 (m) sets forth the powers of the family support magistrate. General Statutes 46b-231 (m) (2) provides in pertinent part: “Family support magistrates shall hear and determine matters involving child and spousal support in IV-D support cases including petitions for support brought pursuant to sections 17-82e, 17-324,17-578 and 46b-215; applications for show cause orders in IV-D support cases brought pursuant to subsection (b) of section 46b-172, and actions for interstate enforcement of child and spousal support under sections 46b-180 to 46b-211, inclusive, and shall hear and determine all motions for modifications of child and spousal support in such cases. . . .”
General Statues § 17-82b provides in pertinent part that by an application for public assistance, “the applicant shall assign to the commissioner
General Statutes § 46b-61 provides: “In all cases in which the parents of a minor child live separately, the superior court for the judicial district where the parties or one of them resides may, on the complaint of either party and after notice given to the other, make any order as to the custody, care, education, visitation and support of any minor child of the parties, subject to the provisions of sections 46b-54, 46b-56, 46b-57 and 46b-66.”
Summary process actions are no longer decided by justices of the peace in the “justice courts.” Our legislature abolished the justice courts; Public Acts 1959, No. 28, §§ 130, 204; and created the housing docket of the Superior Court in 1978. Public Acts 1978, No. 78-365. Thus, the basis for the rule that counterclaims could not properly be brought in summary process actions is no longer in existence. See Fellows v. Martin, 217 Conn. 57, 60-63, 584 A.2d 458 (1991); Southland Corporation v. Vernon, 1 Conn. App. 439, 445-51, 473 A.2d 318 (1984). The justification for the rule under the former system involving justice courts remains persuasive nevertheless.
General Statutes § 46b-231 (m) (8) provides in pertinent part: “Agreements between parties as to custody and visitation of minor children in IV-D support cases may be filed with the assistant clerk of the family support magistrate division. Such agreements shall be reviewed by a family support magistrate, who shall approve the agreement unless he finds such agreement is not in the best interests of the child. . . .”