Opinion
No. CV 03 0285543-S
May 11, 2004
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO DISMISS #102
This matter is an appeal from the Probate Court for the District of Meriden (Probate Court). Before the court is the defendants' motion to dismiss the appeal for lack of subject matter jurisdiction.
On August 27, 2003, the plaintiff, Jean Greten, as subscriber, filed with the Probate Court a motion for appeal from that court's order and decree accepting the last will and testament of Henry Mack, dated September 23, 1993. The plaintiff alleged in the motion for appeal that she is the spouse of the decedent and is aggrieved by the Probate Court's order because she is entitled to a statutory share of his estate. On August 27, 2003, the Probate Court granted the motion and entered a decree allowing the appeal from probate. On September 19, 2003, the plaintiff filed this appeal, pursuant to General Statutes § 45a-186.
The defendants, the estate of Henry Mack, Collette Petillo, individually and as executrix, and Henry Mack, Jr., entered their appearance on October 10, 2003. On October 14, 2003, the defendants moved to dismiss the appeal on the ground that this court lacks subject matter jurisdiction.
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).
The defendants assert three grounds for dismissal. One is that the plaintiff's motion for appeal attempts to appeal two separate, distinct and unrelated orders of the Probate Court and therefore does not comply with § 45a-186(a). The plaintiff counters that the motion for appeal relates only to the order of the Probate Court dealing with the acceptance of the last will and testament of the decedent. The defendants cannot prevail on this ground. A review of the record, including the motion for appeal, the decree allowing the appeal and the reasons of appeal, clearly indicates that the appeal relates only to the order accepting the last will and testament of the decedent.
The orders of the Probate Court, dated July 29, 2003, (1) approved and admitted to probate the last will and testament of the decedent and (2) allowed the fiduciary of the estate of the decedent to make a true and complete inventory of all of the property of the decedent.
General Statutes § 45a-186 provides in relevant part: "(a) Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specifically provided by law, may appeal therefrom to the Superior Court [for the judicial district in which such court of probate is located] . . ."
As a second ground for dismissal, the defendants argue that the plaintiff failed to file reasons of appeal within ten 10 days of the return date as required by the Practice Book § 10-76. Practice Book § 10-76 provides in relevant part: "(a) Unless otherwise ordered, in all appeals from probate the appellant shall file reasons of appeal, which upon motion shall be made reasonably specific, within ten days after the return day; and pleadings shall thereafter follow in analogy to civil actions." The plaintiff filed her reasons of appeal on October 16, 2003, which was not within ten days of the specified return date of September 30, 2003. That untimeliness, however, does not deprive this court of jurisdiction. The Superior Court is not deprived of subject matter jurisdiction where the reasons of appeal have not been filed within ten days of the return date. See Torrance v. Torrance, Superior Court, judicial district of New Britain, Docket No. CV 03 0520882 (October 28, 2003, Robinson, J.); Fischer v. Estate of Mansi, Superior Court, judicial district of New Haven, Docket No. CV 97 0404153 (January 6, 1998, Fracasse, J.) ( 21 Conn. L. Rptr. 289, 290); Barlow v. Pocsay, 21 Conn. Sup. 352, 354, 154 A.2d 753 (1959).
The defendants also contend that this court does not have jurisdiction because the plaintiff is not an aggrieved person as is required by § 45a-186(a), and, therefore, does not have standing to appeal the Probate Court's decision. "The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. Practice Book § 10-31(a). [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) St. George v. Gordon, 264 Conn. 538, 544-45, 825 A.2d 90 (2003). "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 485, 815 A.2d 1188 (2003).
"The trial court does not have subject matter jurisdiction to hear an appeal from probate unless the person seeking to be heard has standing . . . In order for an appellant to have standing to appeal from an order or decree of the Probate Court, the appellant must be `aggrieved' by the court's decision . . . Aggrievement as a concept of standing is a practical and functional one designed to assure that only those with a genuine and legitimate interest can appeal an order of the Probate Court . . . The question of [aggrievement] does not involve an inquiry into the merits of the case." (Citations omitted; internal quotation marks omitted.) Kucej v. Kucej, 34 Conn. App. 579, 581, 642 A.2d 81 (1994).
"[T]he right to appeal from the decision of a Probate Court is statutorily conferred by [§ 45a-186, and] the absence of aggrievement, as required by that statute, is a defect that deprives the Superior Court of jurisdiction to entertain the appeal." (Internal quotation marks omitted.) Adolphson v. Weinstein, 66 Conn. App. 591, 595, 785 A.2d 275 (2001), cert. denied, 259 Conn. 921, 792 A.2d 853 (2002). "A person who seeks to appeal from an order of the Probate Court must set forth in his motion for appeal (1) the interest of the appellant in the subject matter of the decree or order appealed from or in the estate; see General Statutes § [ 45a-191]; and (2) the adverse effect of the decree or order on that interest . . . [T]he existence of aggrievement depends upon whether there is a possibility, as distinguished from a certainty, that some legally protected interest which [an appellant] has in the estate has been adversely affected. Moreover, it must appear that the interest which is adversely affected is a direct interest in the subject matter of the decree from which the appeal is taken." (Citation omitted; internal quotation marks omitted.) Appeal from Probate of Bencivenga, 30 Conn. App. 334, 336-37, CT Page 7689 620 A.2d 195 (1993), aff'd, 228 Conn. 439, 636 A.2d 832 (1994). The aggrievement must be stated in the motion for appeal of probate or apparent from the probate record. General Statutes § 45a-191.
In her motion for appeal of probate, the plaintiff states that she "is the spouse of the deceased." She states that she "is aggrieved by [the decree of the Probate Court admitting the will of the decedent to probate] because, as the spouse of the decedent, she is entitled, under the laws of intestacies, to take a share in the estate as set forth in [General Statutes] § 45a-257a." She states that the Probate Court's decree did not acknowledge or recognize the plaintiff as the spouse of the decedent. She further states that the court's "action(s) in accepting the aforementioned [will] have deprived the [plaintiff] of her statutory entitlement." Those assertions are sufficient to satisfy the two-part test as set forth in Appeal from Probate of Bencivenga, supra, 30 Conn. App. 336. That, however, does not end this court's inquiry in the present case.
"Failure of testator to provide for surviving spouse who married testator after execution of will. Determination of share of estate. (a) If a testator fails to provide by will for the testator's surviving spouse who married the testator after the execution of the will, the surviving spouse shall receive the same share of the estate the surviving spouse would have received if the decedent left no will unless: (1) It appears from the will that the omission was intentional; or (2) the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator's statements, or is reasonably inferred from the amount of the transfer or other evidence."
The thrust of the defendants' argument regarding the plaintiff's lack of standing is that the plaintiff was not the spouse of the decedent at the time of his death. The defendants argue that although the plaintiff and the decedent, who was under a conservatorship since September 1994, may have been united in a ceremony of some kind in April 1995, they were not issued a marriage license pursuant to General Statutes § 46b-24 and, moreover, they did not receive the consent of the decedent's conservator to receive a marriage license pursuant to General Statutes § 46b-29. General Statutes § 46b-29 provides: "(a) No marriage license may be issued to any applicant under the supervision or control of a conservator, appointed in accordance with sections 45a-644 to 45a-662, inclusive, unless the written consent of the conservator, signed and acknowledged before a person authorized to take acknowledgments of conveyances under, the provisions of section 47-5a, or authorized to take acknowledgments in any other state or country, is filed with the registrar. (b) Any person married without the consent provided for in subsection (a) of this section shall acquire no rights by such marriage in the property of any person who was under such control or supervision at the time of the marriage." (Emphasis added.)
General Statutes § 46b-24 provides: "(a) No persons may be joined in marriage in this state until both have complied with the provisions of sections 46b-24 to 46b-27, inclusive, and 46b-29 to 46b-33, inclusive, and have been issued a license by the registrar for the town in which the marriage is to be celebrated, which bears the certification of the registrar that the persons named therein have complied with the provisions of said sections. (b) Such license, when certified by the registrar, is sufficient authority for any person authorized to perform a marriage ceremony in this state to join such persons in marriage, provided the ceremony is performed within the town where the license was issued and within a period of not more than sixty-five days after the date of application. (c) Anyone who joins any persons in marriage without having received such license from them shall be fined not more than one hundred dollars."
The defendants argue that the plaintiff is not an aggrieved person pursuant to § 45-186 and lacks standing to appeal the Probate Court's decision because she cannot establish that she was married to the decedent pursuant to § 46b-24, which they claim sets forth the requirements for a valid marriage in Connecticut. The defendants further argue that, pursuant to § 46b-29, the decedent's conservator did not file written consent for the plaintiff and the decedent to receive a marriage license.
The plaintiff argues that she is aggrieved as is required by § 45a-186 and that she has standing to pursue this appeal because she and the decedent were married at the time of his death. Even though they were not issued a marriage license, she contends that she and the decedent were united in holy matrimony on April 13, 1995, and that she was the spouse of the decedent at the time of his death on May 11, 2003. The plaintiff relies on Carabetta v. Carabetta, 182 Conn. 344, 438 A.2d 109 (1980), for the proposition that "obtaining a marriage license is not a legal prerequisite to a lawful marriage in effect between those who have solemnized their intention to marry."
In support of their respective positions, the parties have submitted affidavits. As stated previously, "[t]he motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, supra, 255 Conn. 346-47. From those affidavits and from the record, the court finds the following undisputed facts.
On September 27, 1994, the Probate Court entered an order appointing George Ruhe as the conservator of the person of the decedent. Ruhe continued to serve as conservator of the person of the decedent until October 1, 1995, at which time he was replaced by attorney Jack Shorr, and the conservatorship remained in place until the death of the decedent on May 11, 2003.
The plaintiff moved in with the decedent in October 1994 and was paid for her services as a caregiver. On April 11, 1995, Ruhe refused to consent to the decedent's marrying the plaintiff. On April 13, 1995, Reverend Eric Anderson of the United Church of Christ in Meriden, Connecticut, performed a ceremony uniting the plaintiff and the decedent in a "holy loving covenant." Reverend Anderson called the ceremony a "holy loving covenant" because the plaintiff and the decedent did not possess a marriage license. The ceremony was consistent with other union ceremonies performed by Reverend Anderson joining a husband and a wife.
The plaintiff relies on Carabetta v. Carabetta, supra, 182 Conn. 349, which held that a marriage that is defective for want of a required statutory formality, such as a marriage license or solemnization of the ceremony, does not necessarily void the marriage. The issue before the court in Carabetta was "whether, under Connecticut law, despite solemnization according to an appropriate religious ceremony, a marriage is void where there has been noncompliance with the statutory requirement of a marriage license." Carabetta v. Carabetta, supra, 182 Conn. 345. The court recognized that "[i]n the absence of express language in the governing statute declaring a marriage void for failure to observe a statutory requirement, this court has held in an unbroken line of cases since . . . [1905], that such a marriage, though imperfect, is dissoluble rather than void." (Citation omitted.) Id., 349. The court then concluded that "the legislature's failure expressly to characterize as void a marriage properly celebrated without a license means that such a marriage is not invalid." Id. Similarly, in Hames v. Hames, 163 Conn. 588, 316 A.2d 379 (1972), the court reaffirmed that "[t]he policy of the law is strongly opposed to regarding an attempted marriage . . . entered into in good faith, believed by one or both of the parties to be legal, and followed by cohabitation, to be void."
In Hames v. Hames, supra, 163 Conn. 588, "the plaintiff wife and the defendant husband obtained a civil divorce in 1957 from each other. They had been validly married in 1955 according to the rites of the Roman Catholic Church. They appeared before a Catholic priest in 1960 and expressed their intentions to remarry each other. They then applied for a marriage license which was issued by the proper public official. A few days later defendant alone took the marriage license to the Roman Catholic priest. The priest signed the license and the parties resumed marital life. The plaintiff did not appear before the priest. The marriage license signed by the priest was filed with the proper public authorities. Ten years later the plaintiff sought an annulment, divorce, and other equitable relief." Ross v. Ross, Superior Court, judicial district of Stamford-Norwalk at Norwalk, Docket No. FA 97 0162587 (August 10, 1998, Tierney, J.) ( 22 Conn. L. Rptr. 637, 639). The court held that the plaintiff's absence and the noncompliance with General Statutes § 46b-22 "precluded the parties from acquiring valid marital status and rendered the 1960 marriage voidable." Id.
If the status of the plaintiff as "spouse" and the validity of her "marriage" were all that were before the court in deciding the motion to dismiss, the court would be reluctant to grant or deny the motion without an evidentiary hearing to determine whether the ceremony and the relationship between the plaintiff and the decedent satisfied the indicia of a legally cognizable marriage set forth in Carabetta v. Carabetta, supra, 182 Conn. 344, and Hames v. Hames, supra, 164 Conn. 558, including the length of the marriage and whether there was consent to the marriage by the parties. For example, the plaintiff attests in her affidavit that the decedent was "completely lucid and aware of his surroundings and [his] decision to marry" during their ceremony. Again, the court would need to delve into this issue further through testimony and other evidence if the court were only deciding the validity of the marriage with this motion.
For the purpose of deciding this motion to dismiss, however, even if the court were to assume that the plaintiff was married to and was the spouse of the decedent at the time of his death, she would have "acquire[d] no rights by such marriage in the property" of the decedent; General Statutes § 46b-29(b); and she would not then be aggrieved by the Probate Court order accepting the last will and testament.
As stated previously, § 46b-29(b) provides that "[a]ny person married without the [written] consent of [the conservator to the issuance of a marriage license] shall acquire no rights by such marriage in the property of any person who was under such control or supervision at the time of the marriage." By virtue of that statute, the plaintiff has no interest in the estate of the decedent even if she were the surviving spouse, and therefore, in such capacity, she has no right to appeal from the probate order at issue. See, Williams v. Cleaveland, 76 Conn. 426, 429, 56 A. 850 (1904). In Williams, the court held, inter alia, that the surviving spouse, Josiah White, of the decedent, Eliza White, had no interest in the estate of the decedent because they had signed an antenuptial agreement, which provided that Josiah White "had renounced all claim which he might have had to his wife's property by reason of their marriage, and had agreed that in case of her death he would make no claim to any right or interest in any part of her estate . . ." Williams v. Cleaveland, supra, 429. The court stated: "It seems to be unquestioned that the antenuptial agreement laid in evidence shows that Josiah White had no interest in the estate of Eliza White as her surviving husband, and that he therefore, in such capacity, had no right to appeal from the probate orders in question." Id., 430. In the present case, as in Williams, the plaintiff has no right to appeal the Probate Court's order because she has no interest in the estate of the decedent, even assuming she was the surviving spouse.
The defendants' motion to dismiss is granted.
BY THE COURT
Tanzer, Judge