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GOLUBECK v. RAFFONE, No. FA 99 0421596 (Jan. 2, 2009)
MARKLE, J.
The petitioner, Pasquale Raffone, appeals pursuant to Connecticut General Statute § 46b-231(n), to the Superior Court from the final decision denying his motion to modify child support by the Family Support Magistrate (Harris T. Lifshitz).
FACTS AND PROCEDURAL HISTORY
This matter originated as a Petition For Paternity and Orders For Custody, Visitation and Support filed on February 1, 1999. By way of an agreement dated February 16, 1999 and accepted by the Superior Court, the petitioner acknowledged that he was the father of the minor child at issue. On June 21, 1999, the Superior Court, (Axelrod, J.) accepted a further agreement of the parties and entered an order for the petitioner to pay $100.00 per week for child support. The record reveals a long history of contempt proceedings relating to child support and visitation matters not presently before this court. The petitioner now appeals the denial of a Motion to Modify Child Support by the Family Support Magistrate rendered on August 29, 2008 in which he claims that his present incarceration constitutes a significant change in circumstances to require a modification of his child support obligation. The petitioner seeks an order for a review and adjustment of the actual amount of arrearage allowed from the date of the original order.
The petitioner is self-represented, both before the magistrate hearings and in this appeal.
The Office of the Attorney General filed an appearance on behalf of the State of Connecticut, Oral argument was heard before this court on November 6, 2008. The State of Connecticut argued that the petitioner's appeal was defective in that the petitioner had failed to properly notify the parties and the State of Connecticut, through the Office of the Attorney General, of his appeal pursuant to 46b-231(n)(2). Further, the State claims that the appeal was not timely filed within fourteen days pursuant to Section 46b-231(n)(2) of the Connecticut General Statutes. CT Page 2119
DISCUSSION
Section 46b-231(n) of the Connecticut General Statutes provide for appeal to the Superior Court by a person aggrieved by a final decision of a family support magistrate. The standard of review is governed by General Statute § 46b-231(n)(7) which provides:
The Superior Court may affirm the decision of the family support magistrate or remand the case for further proceedings. The Superior Court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the decision of the family support magistrate is: (A) In violation of constitutional or statutory provisions; (B) in excess of the statutory authority of the family support magistrate; (C) made upon unlawful procedure; (D) affected by other error of law; (E) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
As to the issue of as to the timeliness of this appeal, a plain reading of the statutory provisions of 46b-231(n)(2)clearly indicates that the appeal must be filed within fourteen days after the rendering of a final decision. The record is clear that the magistrates ruling was entered on the record following a hearing wherein all parties were present on August 29, 2008. The appellant did not file his appeal until October 6, 2008, some 38 days later.
Conn. Gen. Stat. § 46b-23 1(n) Appeal procedure. (1) A person who is aggrieved by a final decision of a family support magistrate is entitled to judicial review by way of appeal under this section.
(2) Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district in which the decision of the family support magistrate was rendered not later than fourteen days after filing of the final decision with an assistant clerk assigned to the Family Support Magistrate Division or, if a rehearing is requested, not later than fourteen days after filing of the notice of the decision thereon. In a IV-D support case, such petitions shall be accompanied by a certification that copies of the petition have been served upon the IV-D agency as defined in subsection (b) of this section and all parties of record. Service upon the IV-D agency may be made by the appellant mailing a copy of the petition by certified mail to the CT Page 2121 office of the Attorney General in Hartford.
(3) Within fourteen days after the filing of the petition, or within such further time as may be allowed by the court, the Family Support Magistrate Division shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding appealed from, which shall include the decision of the family support magistrate. The court may require or permit subsequent corrections or additions to the record.
(4) The aggrieved party shall file with his appeal a statement that no transcript is required for the purpose of determining the issues raised on appeal or a statement that he has ordered a transcript. A transcript may be filed by any party to an appeal and shall be filed within thirty days from the filing of said appeal unless the time for filing such transcript is extended by order of the Superior Court or the family support magistrate. Costs of preparing the transcript shall be paid by the party ordering the preparation of the transcript.
The Connecticut Appellate Court noted, . . . [I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party. Rosato v. Rosato, 53 Conn.App. 387, 390, 731 A.2d 323 (1999). Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law . . . Zanoni v. Hudon, 42 Conn.App. 70, 77, 678 A.2d 12 (1996)." (Internal quotation marks omitted.) Strobel v Strobel, 64 Conn.App. 614, 617-18, 781 A.2d 356, cert. denied, 258 Conn., 937, 786 A.2d 426 (2001) . . . as cited in State v. Cotto, 111 Conn.App. 818 (2008). This Court need not conduct an CT Page 2120 analysis as to the impact upon the rights of the other parties in determining whether or not to dismiss this appeal based on the timeliness issue because the more relevant issue is that petitioner has failed to present an adequate record for review.
"The duty to provide this court with a record adequate for review rests with the appellant . . . It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. Practice Book § 4061 [now § 60-5] . . . It is not the function of this court to find facts . . . Our role is . . . to review claims based on a complete factual record developed by a trial court." (Citations omitted; internal quotation marks omitted.) As cited in State v. Cotto, 11 Conn.App. 818 (2008).
The petitioner, both in his written petition and in oral argument, argues that the magistrate's ruling was erroneous due to mistake of fact. He also alleges that the magistrate based his decision on untrue representations made at that August 29th hearing by the plaintiff, Sandra Golubeck. However, the petitioner has failed to request or to provide any transcripts of that hearing to this court for review. Without any factual basis upon which to make legal conclusions, any decision made by this court would be purely speculative. Thus, this court unable to determine whether or not the substantial rights of the appellant have been prejudiced.
Accordingly, this appeal is hereby dismissed.
CT Page 2122
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