Family Magistrate May Order Attorney’s Fees for Contempt

In this Connecticut appeal, O’Toole v. Hernandez, the Appellate Court concluded that a family support magistrate had the authority to order defendant to pay plaintiff’s attorney’s fees in connection with defendant’s contempt of a support order for the unmarried parties’ minor child.

The state filed a paternity petition “with the Family Support Magistrate Division of the Superior Court, … naming the defendant as the father of the parties’ minor son and seeking financial support for the minor child.” The magistrate found that defendant was the child’s father and ordered him to pay child support.

“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.” The magistrate found a child support arrearage, held the defendant in contempt, ordered that defendant be incarcerated until he paid a purge amount and ordered defendant to pay plaintiff’s attorney’s fees.

Defendant appealed to the Superior Court. “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.” The trial court, citing CGS § 46b-171, “concluded that the family support magistrate was within his statutory authority, in a paternity case, which this case is, to order attorney’s fees in a motion for contempt to enforce the orders of support. Therefore, the appeal by the defendant is denied.”

Defendant appealed to the Appellate Court, who affirmed.

Defendant’s Argument on Appeal

“[D]efendant claim[ed] that § 46b-171 does not provide the requisite authority for the awarding of attorney’s fees by a family support magistrate. The defendant further claims that there are no other statutes that do provide such authority. For that reason, the defendant argues that his due process rights were violated when [the magistrate] ordered him to pay the plaintiff … attorney’s fees.”

Plaintiff’s Alternate Ground for Affirmance

“[P]laintiff claim[ed], as an alternative ground for affirmance, that § 46b-231 provided [the magistrate] with the authority to order the payment of attorney’s fees when enforcing child support orders in a contempt proceeding.”

Appellate Court Concludes Family Support Magistrate May Order Attorney’s Fees for Contempt

The Appellate Court affirmed for two primary reasons. “First, … § 46b-231 (m) (7) expressly authorizes a family support magistrate to enforce child support orders entered in that court by finding the obligor in contempt, and further provides that the magistrate ‘may make such orders as are provided by law to enforce a support obligation . . . .'”  The court noted that “[o]nce a contempt has been found, [General Statutes § 52-256b(a)] establishes a trial court’s power to sanction a noncomplying party through the award of attorney’s fees.” In other words, contempt and an award of attorney’s fees are both incidents to enforcing child support orders, which the magistrate is authorized to do.

“Second, it would violate the well established public policy that requires parents to provide for the support of their minor children and prohibits discriminating against children born out of wedlock to hold that support orders for children born out of wedlock cannot be enforced with the same contempt sanctions that are available tools to enforce support orders for children born to married parents. There is no justification for making such a distinction.”