Opinion
No. CV 10 5033349S
January 21, 2011
FACTS
This is an appeal from a Probate Court decree of paternity. The appellant, Oudone Athitang, filed the appeal on April 1, 2010. The appeal alleges the following facts. On July 2, 2008, Santi Athitang, the son of the appellant, died. At the time of his death, Santi Athitang was separated from his wife, the appellee, Samantha Sek. On November 18, 2008, the appellee gave birth to a daughter, Kira Nalanni Sek (the child). After the birth of the child, the appellee filed a posthumous paternity claim in New Haven Regional Children's Probate Court (the Probate Court) seeking that Santi Athitang be declared the biological father of the child. On March 4, 2010, the Probate Court, without genetic testing, entered a decree determining Santi Athitang to be the biological father of the child and ordered that her name be changed to Kira Nalanni Sek Athitang. The appellant had notice of the March 4, 2010 probate hearing, but did not attend. The appellant is convinced that Santi Athitang is not the biological father of the child. He has filed this appeal seeking that the court reverse the decree of the Probate Court and remand the case for genetic testing and determination of paternity. On April 21, 2010, the appellee filed a motion to dismiss the appeal on the ground that the appellant lacks standing to appeal to the Superior Court. She has also filed a memorandum of law in support of the motion and her sworn affidavit dated April 16, 2010. On May 27, 2010, the appellant filed a memorandum of law in objection to the motion to dismiss and his sworn affidavit dated May 20, 2010. On June 9, 2010, the appellee filed a reply to the objection to the motion to dismiss. On July 7, 2010, the appellant filed a reply to the appellee's reply to the objection to the motion to dismiss. The court heard oral arguments at short calendar on November 8, 2010.
On June 14, 2010, the Superior Court for Juvenile Matters transferred this matter to the Civil Division.
In addition to the appellee, the appellant served process on: (1) Edward Murname; (2) James T. Brennan, guardian ad litem for the appellee and Santi Athitang's other two children (3) the New Haven Regional Children's Probate Court; (4) Marybeth Chugg, guardian ad litem for the child; and (5) the Collections Child Support Department of the Office of the Attorney General. The aforementioned are not included in any references to the appellee.
Thomas Pursell, counsel on behalf of the child; Marybeth Chugg, the guardian ad litem of the child; and James T. Brennan, the guardian ad litem of the appellee and Santi Athitang's other children, have all filed memoranda in support of the appellee's motion to dismiss.
DISCUSSION
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." CT Page 3035 St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. Practice Book § 10-31(a)." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).
"[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.) Id., 213-14. "When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).
In her memorandum of law in support of her motion to dismiss, the appellee argues that the appellant has not been "aggrieved" pursuant to General Statutes § 45a-186(a), and therefore, has no standing to appeal to Superior Court. Specifically, she argues that to be aggrieved the appellant must have a pecuniary interest in Santi Athitang's estate, which he does not have. Also, she argues that the appellant has no other justiciable injury.
In his memorandum of law in opposition, the appellant concedes that he has no pecuniary interest in the estate and that his interest lies in making sure that the outcome is fair, right and just. He argues that because he exercised custody and control of his son's remains after his death, he has an interest in the estate, and therefore, is aggrieved and has standing. Additionally, in his reply to the appellee's reply memorandum, the appellant argues that as the potential paternal grandfather of the child in question, he has an interest in the determination of paternity. Specifically, he argues that the Probate Court made its paternity decree without the benefit of a DNA test, which he would have requested if he had been present at the hearing, and therefore, he is affected by the Probate Court's decree and has standing.
"In order to establish standing to appeal from a probate matter, a party must show that he or she is `aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law . . .' General Statutes § 45a-186(a). The test for determining `whether a party has been aggrieved by a Probate Court decision is whether there is a possibility, as distinguished from a certainty, that some legally protected interest that [the party] has in the estate has been adversely affected.' (Emphasis added.) Dept. of Income Maintenance v. Watts, 211 Conn. 323, 326, 558 A.2d 998 (1989). This interest `may be a direct pecuniary one, or it may consist of an injurious effect upon some legally protected right or status of the appellant.' Id. [Our Supreme Court has] interpreted § 45a-186(a) to require that the decision of the Probate Court must have affected a party's interest in the estate in order for that party to have standing to appeal the court's order. See, e.g., Ins. Co. of North America v. Dragat, 165 Conn. 207, 211, 332 A.2d 103 (1973) (holding that plaintiff failed to show aggrievement where claimed interest was `right to be protected against speculative damages based on an independent contract between it and [the administratrix], individually, and not based on any legally protected interest it claimed to have in this estate'); Bridgeport v. Steiber, 143 Conn. 720, 723, 126 A.2d 823 (1956) (concluding that plaintiffs were not aggrieved by Probate Court decree where claimed interest was `right to be protected from having claims made against them in court'); Hartford National Bank Trust Co. v. Malcolm-Smith, 129 Conn. 67, 69, 26 A.2d 234 (1942) (plaintiff's claimed interest of right not to be removed as trustee, which `might affect its standing and reputation as a professional trustee [was] too remote an interest to make it an "aggrieved" party')." McBurney v. Cirillo, 276 Conn. 782, 820-21, 889 A.2d 759 (2006), overruled on other grounds by Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 914 A.2d 996 (2007).
The parties agree that the appellant has no pecuniary interest in Santi Athitang's estate. Therefore, the only remaining issue is whether there is a possibility that the Probate Court's decree caused an injurious effect upon some other legally protected right or status of the appellant. In his memorandum of law in opposition to the motion to dismiss, the appellant cites General Statutes § 45a-318, which governs the right to custody and control of the disposition of a deceased person's body, in support of his argument that he has standing because he previously had possession of his son's remains. In his reply memorandum, however, he argues that his reliance on § 45a-318 is to demonstrate that courts, when determining the issue of aggrievement, have not narrowly construed the language of § 45a-186(a). As previously discussed, our Supreme Court has interpreted "aggrieved" under § 45a-186(a) to include other legally protected interests in the estate in addition to pecuniary interests. In any event, § 45a-318 only governs the disposition of a deceased person's body, and therefore, cannot provide the appellant with standing to challenge the probate court's decree of paternity.
General Statutes § 45a-318 provides in relevant part: "(a) Any person . . . may execute in advance of such person's death a written document . . . [d]irecting the disposition of such person's body upon the death of such person, which document may also designate an individual to have custody and control of such person's body and to act as agent to carry out such directions . . . In the absence of a written designation . . . the following individuals . . . shall have the right to custody and control of the disposition of a person's body . . . (3) [t]he deceased person's surviving parents."
The appellant's final argument is that as the potential paternal grandfather of the child in question, he has an interest in the paternity determination, and therefore has standing. The appellant cites no statute or case law to support this argument. It is worth noting that in Connecticut, grandparents have limited rights, and what rights they may have are neither absolute nor exclusively due to their status as grandparents. For example, regarding visitation rights, General Statutes § 46b-59 provides in relevant part: "The Superior Court may grant the right of visitation with respect to any minor child or children to any person, upon an application of such person. Such order shall be according to the court's best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable . . ." In order to comport with the constitutional rights of parents, our Supreme Court has interpreted this statute to require that a petition for visitation contain: (1) specific, good faith allegations that the petitioner has a relationship with the child that is similar in nature to a parent-child relationship; (2) specific, good faith allegations that denial of the visitation will cause real and significant harm to the child, to the degree that the child would be neglected, uncared-for or dependent; and (3) sufficient allegations to justify requiring the fit parent to subject his or her parental judgment to unwanted litigation. Roth v. Weston, 259 Conn. 202, 234-35, 789 A.2d 431 (2002). Additionally, the petitioner must prove these allegations by clear and convincing evidence. Id., 235.
Not only are the rights of grandparents vis-a-vis grandchildren limited and conditional, no such right is at stake in this appeal. The appellant is not claiming, for example, that the Probate Court should have found him to be the grandfather of the child; and therefore he would be able to pursue such legally protected interests as the law may provide to grandparents. Significantly, he is challenging the decree because he may not be the grandfather. Because the law does not impose on him any obligations simply by virtue of being the child's grandfather (or confer him any benefits if he were not the child's grandfather) this court cannot divine any legally protected interest that would allow him to challenge this status on appeal. The appellant's status as the child's grandfather alone, therefore, does not provide him standing to appeal the Probate Court's decree of paternity in this case. For the forgoing reasons, the court grants the appellee's motion to dismiss.
This court does not need to decide and does not suggest that the appellant would have standing if the decree ordered that he was not the grandfather.