436 A.2d 785 | Conn. Super. Ct. | 1981
The plaintiff instituted this petition for an order of support against the defendant as the alleged father of a minor child who has been the recipient of state assistance under the aid to dependent children program. The complaint names the child as the "acknowledged daughter" of the defendant, an apparent reference to an acknowledgment of paternity executed by the defendant on November 13, 1975, and affirmed by the mother of the child in accordance with General Statutes
and that General Statutes 17-82e and 17-324, which pertain to the issuance and enforcement of orders of the commissioner of human resources for the support of persons receiving public assistance, create an unconstitutional presumption that the mother and child are eligible for state aid. The trial court (Glass, J.) denied those motions and also (Buzaid, J.) a later motion to reargue them.1 A judgment was rendered (Buzaid, J.) ordering the defendant to pay twenty dollars weekly for current support of the child and five dollars weekly upon the arrearage for past support.
The defendant has appealed from the denial of his motions to strike the acknowledgment of paternity, to strike the petition, and to reargue those motions. Practice Book 3000 authorizes no appeal from the action taken upon such motions but only from the final judgment of the court. In this case we may overlook this irregularity in the appeal documents, which the plaintiff has never raised, because the defendant actually filed his appeal within twenty days of the entry of the order of support which constitutes the final judgment, as required by Practice Book 3007. Several other procedural deficiencies, however, bar us from reaching the merits of the only issue which the defendant has briefed: whether a support order based upon the acknowledgment of paternity form used by the state deprives the defendant of property without due process of law.
The trial court denied the defendant's motions to strike the acknowledgment of paternity and to strike the petition on its merits without considering the objection filed by the state that those motions did not conform to the provisions of Practice Book 152. *748
That section allows a party seeking to contest the legal sufficiency of a complaint or other pleading to file a motion to strike, the contemporary nomenclature for our former demurrer. See Practice Book, 1963, 106. It is elementary that such a motion must rely wholly upon the factual allegations of the pleading addressed and may not contain affirmative factual assertions which could only be proved by evidence. Bedard v. Cunneen,
Even if the defendant should prove to be correct in contending that the acknowledgment of paternity form is inadequate to carry the legal consequences of a judgment, as contemplated by General Statutes
The defendant has not briefed two of the grounds relied upon in his motion to strike the petition: that General Statutes
The remaining ground of the motion, that General Statutes
Our conclusion that the defendant's motions to strike the acknowledgment of paternity and the petition itself were properly denied renders any discussion of his claim of error in the denial of his motion to reargue those motions almost superfluous. The motion to reargue sought an opportunity to present evidence regarding the coercion of the defendant to *750
sign the acknowledgment of paternity in the hope that the court would reverse the prior rulings upon the motions to strike. The presentation of evidence in support of such motions is unknown to our practice. See Practice Book 155. The defendant might well have been able to present such evidence in attempting to litigate the issues which he has sought to raise in this appeal if he had filed a response to the petition raising appropriate defenses. No such pleading appears in the record before us and the trial court, therefore, was entitled to assume the truth of the allegations of the petition in entering the order of support against the defendant. American Masons' Supply Co. v. F. W. Brown Co.,
We would be more concerned with the impact of our decision upon the constitutional rights of the defendant, which the irregularities in the procedure employed here have precluded us from considering, if the trial court did not have continuing jurisdiction in this kind of proceeding to modify or set aside at any time a support order which has been entered. General Statutes 17-324. In Stone v. Maher,
There is no error.
In this opinion DALY and BIELUCH, Js., concurred.