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O'Toole v. Hernandez

Appellate Court of Connecticut

March 8, 2016

KATHRYN G. O'TOOLE
v.
ORLANDO HERNANDEZ

         Argued January 5, 2016.

          Action to establish paternity of the parties' minor child, and for other relief, brought to the Superior Court in the judicial district of Fairfield and referred to a family support magistrate, Anthony P. Fusco; default judgment determining that the defendant is the father of the minor child and granting certain other relief; thereafter, the family support magistrate, William E. Strada, Jr., granted the defendant's motion to open the judgment, motion for genetic testing, and vacated the prior orders; subsequently, the family support magistrate, William E. Strada, Jr., rendered judgment determining that the defendant is the father of the minor child and granting certain other relief; thereafter, the family support magistrate, Anthony P. Fusco, granted the plaintiff's motion for contempt; subsequently, the defendant filed a petition to appeal to the trial court, Frankel, J.; judgment denying the petition and affirming the decision of the family support magistrate, Anthony P. Fusco, from which the defendant appealed to this court.

          SYLLABUS

         The plaintiff filed a motion for contempt claiming that the defendant, who had been found to be the father of the parties' minor child by the Family Support Magistrate Division of the Superior Court, wilfully failed to pay court ordered child support. A family support magistrate found the defendant in contempt, ordered him incarcerated until he paid a purge, and ordered him to pay the plaintiff a certain amount in attorney's fees. The defendant appealed to the trial court, challenging the authority of a family support magistrate to order a contemnor to pay his opponent's legal fees. The trial court relied on the statute (§ 46b-171) pertaining to the authority of a family support magistrate in affirming the decision to award attorney's fees. On appeal to this court, the defendant claimed that no statute provided a family support magistrate with the requisite authority to award attorney's fees in a contempt proceeding for failure to pay child support as ordered. The plaintiff claimed that the Family Support Magistrate's Act (§ § 46b-231 et seq.) provided an alternative basis for the family support magistrate's authority to award attorney's fees. Held that, pursuant to § 46b-231 (m) (7), the family support magistrate had the authority to award attorney's fees in the contempt proceeding for violation of the defendant's child support orders, as that statute expressly authorizes a family support magistrate to enforce child support orders by finding the obligor in contempt or by making such other orders as provided by law; furthermore, given that several statutes provide authority for a family support magistrate to award attorney's fees for violation of support orders in a dissolution action or a paternity proceeding, it would violate the well established public policy requiring parents to provide for the support of their minor children and prohibiting discrimination against children born out of wedlock for this court to conclude that support orders for children born out of wedlock could not be enforced with the same contempt sanctions that are available tools to enforce support orders for children born to married parents, as there is no justification for making such a distinction.

         Christopher Kylin, for the appellant (defendant).

         Joseph P. Sargent, for the appellee (plaintiff).

         Alvord, Mullins and Schaller, Js. ALVORD, J. In this case the other judges concurred.

          OPINION

Page 53

          [163 Conn.App. 567] ALVORD, J.

          The defendant, Orlando Hernandez, appeals from the judgment of the trial court affirming the decision of the family support magistrate that awarded the plaintiff, Kathryn G. O'Toole, $1154.47 in attorney's

Page 54

fees after finding the defendant in contempt for failure to pay court ordered child support. On appeal, the defendant claims that the court's determination was erroneous because a family support magistrate has no statutory authority to award attorney's fees in contempt proceedings.[1] We affirm the judgment of the trial court.

         The following facts and procedural history are relevant to the resolution of the defendant's appeal. The plaintiff and the defendant have never been married to each other. On August 30, 2010, an assistant attorney general filed a paternity petition on behalf of the state[2] with the Family Support Magistrate Division of the Superior Court, pursuant to General Statutes § 46b-162,[3] naming the defendant as the father of the parties' minor son and seeking financial support for the minor child. The action was commenced because the mother and [163 Conn.App. 568] child had received state assistance as contemplated by Title IV-D of the Social Security Act, 42 U.S.C. § 651 et seq. (2012). See also General Statutes § 17b-179 (creating Bureau of Child Support Enforcement to implement Title IV-D). Although the defendant was served in hand with the paternity petition, summons, and order for hearing, he did not appear at the scheduled hearing, and, after the evidentiary hearing on October 13, 2010, the family support magistrate, Anthony P. Fusco, issued by default a determination of paternity and an order of weekly child support premised on the state's wage exhibits relative to the defendant's earnings. The defendant obtained counsel and filed a motion to open the judgment and a motion for genetic testing, which were granted by the family support magistrate, William E. Strada, Jr., on March 30, 2011, at which time the October 13, 2010 child support order was vacated.

         On May 25, 2011, following a hearing at which the defendant was present, Magistrate Strada found the defendant to be the father of the minor child on the basis of " [the] parties' testimony and evidence in the file including DNA testing results . . . ." Magistrate Strada again entered support orders on June 22, 2011. The plaintiff, with the assistance of her counsel, thereafter filed several postjudgment motions for contempt against the defendant, claiming repeated noncompliance with the court's child support orders. On March 21, 2014, the plaintiff filed the postjudgment motion for contempt that is the subject of the present appeal. She claimed that the defendant " wilfully failed to pay child support dating back to February, 2013." [4] A hearing was held on May 1, 2014. The parties were in attendance, and the defendant received a " state appointed attorney in the matter." Magistrate Fusco found a child support [163 Conn.App. 569] arrearage of $20,383, found the defendant in contempt and ordered that he be incarcerated until he paid a purge amount of $10,000. At that time, Magistrate Fusco additionally ordered the defendant to pay the plaintiff $1154.47 in

Page 55

attorney's fees within ninety days of that order.

         The defendant appealed from the May 1, 2014 decision of Magistrate Fusco to the Superior Court pursuant to General Statutes § 46b-231 (n).[5] In his statement of the issues, the defendant challenged the authority of a family support magistrate to order a contemnor to pay his opponent's legal fees. He additionally claimed that the plaintiff effectively had no right to hire an attorney in a IV-D ...


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