HARRIS T. LIFSHITZ, Family Support Magistrate.
The plaintiff in this case, Olaf Moss, filed a separate action against the defendant mother Vickie Eubanks and named the child Marcia Eubanks as a co-defendant. The action is in four counts, claiming fraud, "theft," negligence, and unjust enrichment. The plaintiff herein demands revocation of the acknowledgment of paternity, a judgment of non-paternity, money damages and punitive damages. The action at least in part sounds civil in nature and in fact the complaint utilized a form for civil actions. However, the defendant invoked the court's "general jurisdiction over family matters" and under "case type" filled in the code F 90, which is a family, not civil action. This case has run a tortuous path through the courts, winding up back in the Family Support Magistrate Division, all as related in the memorandum of decision filed this date in the consolidated file, a copy of which is appended herewith.
Reference is made to an action between the same parties, styled Vickie Eubanks v. Olof Moss, in this judicial district under docket number FBTFA880246900 in which the defendant (plaintiff in this case), filed a motion to open the paternity acknowledgment. The files have been consolidated by order of the Superior Court. This court has filed a memorandum of decision denying the motion to open. That memorandum of decision is incorporated herein by reference. Since the matters were consolidated and heard simultaneously the parties and the court agreed to refer to the parties by their designations under the 1988 case. Hence hereafter, Mr. Moss will be referred to as "the defendant," Vickie Eubanks as "the plaintiff" and Marcia Eubanks by her given name, or as "the child."
This second action, now consolidated with the underlying 1988 case, is a rather peculiar matter. In Count One, the defendant seeks "a judicial determination that the defendant is not the biological child" of the defendant. This count seems to be simply an effort to do an end run CT Page 9643 around the existing 1988 case in which paternity is determined, and replicates the defendant's motion to open. The remaining counts raise claims that sound in tort — misrepresentation, fraud, theft, unjust enrichment. Although the plaintiff (defendant in the 2006 case) filed an answer, she probably missed the opportunity to raise affirmative defenses, including the statute of limitations, since the time limitation for an action in tort or contract has long since expired.
Count Two of the complaint sets forth a cause of action sounding in fraud, theft and misrepresentation as to Vickie Eubanks, Count Three sets forth a cause of action sounding in negligence against Vickie Eubanks and Count Four sets forth a cause of action sounding in mutual mistake of fact and unjust enrichment. The prayer for relief seeks a judgment that the plaintiff is not the father of Marcia Eubanks, a judgment revoking the acknowledgement of paternity, money damages, treble damages in accordance with General Statutes § 53a-119, attorney fees and punitive damages.
Normally, this court would not hear a matter that involves the usual civil jurisdiction invoked by tort claims. However, the Connecticut Supreme Court has held that bringing a case in the wrong division of the Superior Court implicates venue, not subject matter jurisdiction. See Savage v. Aronson, 214 Conn. 256, 263, 571 A.2d 696 (1990). Thus the appropriate remedy would be to transfer the matter to the civil division, at least as to counts two, three and four. One more time, the court confronts the history of this case. The matter wandered through civil and family sides of the court, and ultimately was remanded to this court with what this court takes to be a directive to hear and decide it.
The court discussed the issue with the attorneys at the hearing and stated that "this case has gone up and down and up and down between the Superior Court and this court. It's been pending for three years, okay. And the last thing that happened, or the last two things that happened in Superior Court as I recall my review of the file is that a judge essentially, I think . . . reheard what was a motion to transfer to the Superior Court that was granted, turned around and sent it back to the magistrate court, which was what resulted in the first hearing. So that was a judge saying, no, do it in magistrate court, both files, okay. And then there was the appeal, and that judge, a second, a different judge in the Superior Court remanded it for a new hearing before the magistrate. So I have two Superior Judges telling me hear this thing, okay." (Transcript p. 28.)
In these unique circumstances, however, it may not matter. A recent case in the civil division of the Superior Court denied a claim by a nonbiological father for reimbursement from a previously undisclosed biological father under theories quite similar to the present case. Fischer v. Zollino, 2010 Ct.Sup. 782 (Jones, J., Dec. 8, 2009) [ 49 Conn. L. Rptr. 33]. Judge Jones found no authority under Connecticut law to allow recovery under such theories, and also relied on findings from sister states, including State, Dept of Revenue v. Wetherelt, 931 P.2d 383, 387 (Alaska 1997); and Day v. Heller, 264 Neb. 934, 935, 653 N.W.2d 475 (2002).
This court declines to replicate Judge Jones's thorough and incisive review of those cases, but will relate a particularly succinct comment in a third case cited: "The effect of [the court's] holding in this case . . . is that if a man's willingness to parent his non-marital partner's child is conditioned on its being his biological offspring, he proceeds at his own risk in failing to verify his paternity at an early stage in the child's life . . . If [a child] proves to be genetically unrelated to its putative father . . . he will not be able to enlist the aid of the courts in seeking reimbursement from the child's biological parents from the contributions he has made to its support." McBride v. Boughton, 123 Cal.App. 4th 379, 395, 20 Cal. Rptr.3d 115 (2004).
In the end, the defendant's damage claim relies on his claim that he is not Marcia's father. After full hearing, this court has denied the motion to open the paternity acknowledgment. Regardless of biology, the CT Page 9644 defendant remains the lawful father of Marcia Eubanks.
As Marcia's father, he was responsible for her support and maintenance with whatever contribution the primary residential parent made. Not only has he no claim for reimbursement, but he remains liable for the balance of the unpaid accrued child support arrearage.
On the damages claim, judgment enters for Vicki Eubanks and Marcia Eubanks on all counts.
The defendants in this action.