Opinion
No. CV-05-4010768 S
January 5, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE ( #103)
This is an appeal from an order of the Probate Court for the district of Wallingford (Philip J. Wright, Jr., Judge) in the matter of the Estate of Mary Botte. The plaintiff, Carole DeChristoforo, an alleged beneficiary of the Estate, appeals the Probate Court's order that the temporary administrator of the Estate pay a spousal allowance to Paul Botte in the lump sum of $15,000 plus $500 per month during the settlement of the Estate.
In the present motion, the defendants Paul Botte c/o Elizabeth Dwyer, his conservator, move to strike two paragraphs of the plaintiff's Reasons of Appeal. For the reasons set forth below, the motion to strike is granted.
The purpose of a motion to strike is to contest the legal sufficiency of the allegations of any complaint to state a claim upon which relief can be granted. Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270 (1998); Practice Book § 10-39.
In paragraph 7 of her Reasons for Appeal, the plaintiff alleges three reasons why the spousal allowance awarded by the Probate Court was erroneous:
a) The ruling fails to give effect to the testator's intention as expressed in her will and, therefore, appropriates the property of the beneficiary, Carole DeChristoforo, for the benefit of the defendant, Paul Botte, c/o Elizabeth Dwyer, His Conservator;
b) The amount of spousal allowance awarded to the defendant . . . is not necessary for his support in light of his financial condition, as required by General Statutes § 45a-320; and
c) The amount and manner in which the petitioner was awarded spousal allowance was not reasonable under the provisions of General Statutes § 45a-320.
Reasons for Appeal ¶ 7.
The defendant moves to strike paragraphs 7a and 7c from the Reasons of Appeal. The plaintiff asserts that the relief requested in the present motion should be sought through a Request to Revise.
In an appeal from probate, the Superior Court tries the issue de novo sitting as a court of probate. Silverstein's Appeal from Probate, 13 Conn.App. 45, 53 (1987). As to the order appealed from, the jurisdiction of the Superior Court is coextensive with that of the Probate Court in the first instance. Id., 54.
Pursuant to General Statutes § 45a-320, a Probate Court may provide a spousal allowance in "such amount as it may judge necessary for the support of the surviving spouse." Section 45a-320(a). In Sklar v. Estate of Sklar, 168 Conn. 101 (1975), our Supreme Court resolved the question of whether a testator's intention as expressed in a will could override the codified public policy giving the Probate Court discretion to award support for a surviving spouse. Id., 108. The Sklar decision made clear that an award of spousal support prevailed over any contrary intention expressed in the decedent's will. Id., 109.
Applying the above law to the Reasons for Appeal, requires the motion to strike be granted as to paragraphs 7(a) and 7(c). Paragraph 7(a) alleges that the spousal allowance did not give effect to the testator's intention as expressed in her will. Under Sklar v. Estate of Sklar, supra, this paragraph does not state a claim upon which relief can be granted.
Paragraph 7(c) alleges that the spousal allowance was not "reasonable." The Probate Court's statutory authority was to award "necessary" support. Section 45a-320. The statute contemplates the award of such amount as may be necessary, in addition to the other assets of the spouse, to maintain a household in a manner of living appropriate to the decedent's station in Baldwin v. Tradesmens National Bank, 147 Conn. 656, 661-62 (1960). This is a different approach than a concept of reasonableness which connotes an objective assessment in determining a spousal allowance. Neither the Probate Court, nor a Superior Court in a probate appeal, has authority to award "reasonable" spousal support. Accordingly the motion to strike paragraph 7(c) must be granted.
As to whether the defendants should have raised their claims in a Request to Revise, the court finds that, on these circumstances, a motion to strike is appropriate. It is true that irrelevant and immaterial allegations should be addressed in a request to revise, Fenyes v. McMillan, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 362729 (March 10, 2000, Melville, J.). In the present case, however, the challenged paragraphs are legally insufficient to support a probate appeal and are proper subjects of a motion to strike. Moreover, the plaintiff retains the ability to plead over pursuant to Practice Book § 10-44.
CONCLUSION
For the reasons set forth above, the motion to strike is granted.
So ordered.