Opinion
No. CV-05-4003861
April 20, 2006
MEMORANDUM OF DBCISION
I
The plaintiffs, Margarita Halpine, Patrick Halpine, Nusie Halpine, Thomas Halpine, Veronica Halpine, and Mig Halpine, appeal an order and decree issued by the Probate Court for the district of New Milford/Bridgewater (Probate Court) appointing nonfamily, fee generating attorneys as conservators of the person and estate of their father, Stuart F. Halpine, II.
II
On October 11, 2005, the Probate Court had a hearing to determine whether to appoint a conservator of the person and estate of Stuart F. Halpine, II. After the hearing, the court reached the following relevant conclusions: 1) Stuart F. Halpine, II was unable to request or obtain counsel, and the court would appoint an attorney to represent him; 2) clear and convincing evidence was presented that Stuart F. Halpine, II is incapable of managing his affairs and caring for himself; 3) the testimony and evidence concerning the relationship of the parties' interest in caring for Stuart F. Halpine, II as conservator of the estate and conservator of the person presented at the hearing showed a division among the family members; 4) the court found that the division is detrimental to the well being of Stuart F. Halpine, II and would be in the best interests of the parties (the family) and Stuart F. Halpine, II not to have a family member as the conservator of his estate or of his person.
As a result of the hearing and its findings, the Probate Court denied Stuart F. Halpine, II's children's request for appointment as conservator of the person and estate of their father and appointed two nonfamily member attorneys as conservator of the person and estate of Stuart F. Halpine, II, to wit, Attorney Murray Kessler and Attorney Cecilia Buck-Taylor. The Probate Court's order also provided that the conservator of the estate and the person will continue working with Stuart F. Halpine, II's family to resolve the health care issues facing him.
On October 31, 2005, the plaintiffs filed a motion for appeal, which the Probate Court granted on November 1, 2005. On December 22, 2005, the plaintiffs filed their reasons of appeal, as required by Practice Book § 10-76(a).
Practice Book § 10-76(a) provides in relevant part that "[u]nless otherwise ordered, in all appeals from probate the appellant shall file reasons of appeal, which upon motion shall be reasonably specific . . ."
The defendants move to dismiss the action arguing that the court lacks subject matter jurisdiction to hear the appeal under General Statutes § 45a-186(a). The plaintiffs filed a memorandum in opposition to the motion to dismiss arguing that it misstates both the facts and relevant case law.
General Statutes § 45a-186(a) states in relevant part that "[a]ny person aggrieved by an 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 . . ."
III
"A motion to dismiss . . . properly attacks the jurisdiction of the court, 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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005); see also Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2003); Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter . . ." Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002).
With regard to probate matters, "the right to appeal from the decision of a Probate Court is statutorily conferred by [General Statutes § 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).
"When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable lights . . . [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.) Filippi v. Sullivan, supra, 273 Conn. 8. "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).
In their memorandum in support of their motion to dismiss, the defendants first argue that as to the plaintiffs Patrick Halpine, Nusie Halpine, Thomas Halpine, Veronica Halpine, and Mig Halpine the court is without subject matter jurisdiction to entertain their purported appeal from probate on several grounds. They argue that Patrick Halpine, Nusie Halpine, Thomas Halpine, Veronica Halpine, and Mig Halpine did not file a motion to appeal from the decree of the probate court per § 45a-186(a) and failed to obtain a decree from the probate court permitting an appeal within the time limit allowed by General Statutes § 45a-187, or at any other time. The defendants also argue that these plaintiffs failed to file a recognizance in the Probate Court as required by § 45a-186(a). The defendants further argue that all six of the plaintiffs have neither alleged proper and specific grounds for aggrievement in their motion to appeal from probate, nor are they in fact aggrieved from the decree of the Probate Court which they have appealed.
The plaintiffs counter that they have met the filing requirements of General Statutes § 45a-186 as Patrick Halpine, Nusie Halpine, Thomas Halpine, Veronica Halpine, and Mig Halpine filed a joint appeal with Margarita Halpine. They point out that § 45a-186 neither precludes the filing of a joint appeal nor does it direct that each person aggrieved must file separate filing fees, serve six separate complaints alleging the same claim and, therefore, inundate the judicial system with multiple cases filed on the same set of facts, alleging the identical claims of aggrievement. Furthermore, the plaintiffs argue that the probate court reviewed the adequacy of the plaintiffs' filing, including the payment of fees and the filing of recognizance and granted the motion as appropriate. In response to the defendants' assertion that they are not in fact aggrieved, the plaintiffs argue that they have a constitutional right to familial integrity and an interest in caring for their father that is enforceable by law. The plaintiffs also assert that they have a legally cognizable interest in these proceedings, have demonstrated aggrievement and must be given an opportunity to be heard on appeal.
IV
Section 45a-186 provides in relevant part that "[a]ny person aggrieved by an order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the Superior Court . . . Except in the case of an appeal by the state, such person shall give security for costs in the amount of one hundred fifty dollars, which may be paid to the clerk, or a recognizance with surety annexed to the appeal and taken before the clerk or a commissioner of the Superior Court or a bond substantially in accordance with the bond provided for appeals to the Supreme Court." Pursuant to § 45a-186, therefore, the requirements for an appeal from probate are (1) that the appellant is aggrieved and (2) that the appellant gives security or bond for the appeal.
Aggrievement
"A [plaintiff] who seeks to appeal from an order of the Probate Court must set forth in his motion for appeal (1) the interest of the [plaintiff] in the subject matter of the decree or order appealed from or in the estate . . . and (2) the adverse effect of the [Probate Court's] decree or order on that interest." Merrimac Associates, Inc. v. DiSesa, 180 Conn. 511, 516, 429 A.2d 967 (1980). "[T]he existence of aggrievement depends upon whether there is a possibility . . . that some legally protected interest which [a plaintiff] has in the estate has been adversely affected." (Internal quotation marks omitted.) Bradley's Appeal from Probate, 19 Conn.App. 456, 468, 563 A.2d 1358 (1989). Additionally, "[the plaintiff's] appeal should clearly state the basis for his aggrievement . . ." Cammorata v. Appeal from Probate, Superior Court, judicial district of Fairfield, Docket No. CV 02 0388486 (March 6, 2002, Gallagher, J.) ( 31 Conn. L. Rptr. 486, 487).
"Aggrievement falls within two categories, classical and statutory . . . Classical aggrievement exists where there is a possibility, as distinguished from a certainty, that a Probate Court decision has adversely affected a legally protected interest of the appellant in the estate . . . Statutory aggrievement exists by legislative fiat which grants an appellant standing by virtue of particular legislation, rather than by judicial analysis of the particular facts of the case . . . It merely requires a claim of injury to an interest that is protected by statute." (Emphasis in original; internal quotation marks omitted.) Marchentine v. Brittany Farms Health Center, Inc., 84 Conn.App. 486, 490, 854 A.2d 40 (2004).
In Marchentine v. Brittany Farms Health Center, Inc., supra, 84 Conn.App. 491, the Appellate Court held that the appellant was aggrieved and had the requisite standing to be heard on appeal based on the fact that he was the respondent Margaret Marchentine's only child and heir, had formerly held her power of attorney, and would be adversely affected by the appointment of conservators "with substantially fewer ties to his mother . . ." The court also acknowledged the fact that the appellant child was not motivated only by financial concerns, but "sought to retain the relationship forged out of the bond between parent and child . . ." Id., 494.
The court pointed out, however, that the fact that the appellant is "Margaret Marchentine's son does not automatically necessitate a finding of aggrievement." Marchentine v. Brittany Farms Health Center, Inc., supra, 84 Conn.App. 493. The court noted the Supreme Court decision in Fitzhugh v. Fitzhugh, 156 Conn. 625, 626-27, 239 A.2d 513 (1968), which held that "[t]he mere statement that [the appellant] was aggrieved without supporting factual allegations as to the particular nature of his aggrievement was insufficient . . . The allegation in [the appellant's] motion for appeal that he is the only child of the incapable person does not bestow on him a real interest in the matter in controversy." See also Doyle v. Reardon, 11 Conn.App. 297, 304, 527 A.2d 260 (1987) ("plaintiff has no legally protected interest in the estate . . . solely by virtue of his blood relationship to her as her grandson or because of any putative inheritance which may come to him, after her death, by will or intestacy"); Graham v. Estate of Graham, 2 Conn.App. 251, 254-55, 477 A.2d 158, cert. denied, 194 Conn. 805, 482 A.2d 710 (1984) ("contention of the plaintiff that he is aggrieved because he is potentially liable for his mother's support is based on false alarm rather than actual fact . . . It is plain that the mere possibility of future liability for her support involves no real interest in the matter in controversy").
The court further explained in Marchentine that "[i]t is not any one fact that distinguishes the present case from prior decisions, but rather the combination of circumstances that result in this plaintiff being aggrieved by the Probate Court's actions. Here, [the court was] faced with a plaintiff who is the only child and heir of Margaret Marchentine, and who previously had been granted the power of attorney by Margaret Marchentine. Additionally . . . the plaintiff . . . by opposing the appointment of a conservator of both the estate and the person of Margaret Marchentine, sought to retain the relationship forged out of the bond between parent and child, and was not motivated solely by financial concerns. The Probate Court, by appointing the conservators on the application of the center, a nursing home, impinged on the present, as opposed to a future or speculative, interest of the plaintiff. Essentially, the plaintiff lost the ability to continue his relationship with his mother without being subject to the control of the conservators, essentially strangers, without having the opportunity to be heard." (Emphasis in original; internal quotation marks omitted.) Marchentine v. Brittany Farms Health Center, Inc., supra, 84 Conn.App. 494.
In the present case, the plaintiffs sufficiently state an interest in the Probate Court's order, which presents a question regarding classical aggrievement. The plaintiffs allege that they are six of Stuart F. Halpine, II's children. One of the plaintiffs, Margarita Halpine, held Stuart F. Halpine, II's power of attorney and alleges that she dutifully executed her responsibilities. She also alleges that she is the child who spent the most time with Stuart F. Halpine, II since his retirement in 1982. Another one of the plaintiffs, Veronica Halpine, was named as executrix of Stuart F. Halpine, II's estate in his will. The plaintiffs further allege that four of the six plaintiffs live in Connecticut and spent a great deal of time with their father, while the two out-of-state plaintiffs visited their father on extended vacations annually. The plaintiffs also allege that they were deeply involved with the care and welfare of their father until the appointment of the nonfamily member conservators interrupted that relationship. Additionally, the plaintiffs are seeking to challenge the appointment of two nonfamily members as conservators of the person of Stuart F. Halpine, II and of his estate.
This combination of factors is more akin to those presented before the Appellate Court in Marchentine v. Brittany Farms Health Center, Inc., supra, 84 Conn.App. 486, than those in Fitzhugh v. Fitzhugh, supra, 156 Conn. 625, Doyle v. Reardon, supra, 11 Conn.App. 297, or Graham v. Estate of Graham, supra, 2 Conn.App. 251. The plaintiffs have not made mere statements of allegations that they are aggrieved because they are children of Stuart F. Halpine, II, rather they have provided proper grounds for aggrievement along with supporting factual allegations as to the particular nature of each plaintiffs' aggrievement. Each of the six plaintiffs claim that they have had not only a substantial, long-term relationship with their father, but also one that involved care giving. Additionally, one of the plaintiffs, Margarita Halpine, served as her father's power of attorney and another, Veronica Halpine, was named as the executrix of his estate in his will.
The plaintiffs in this case, by opposing the appointment of a conservator of both the estate and the person of Stuart F. Halpine, II seek "to retain the relationship forged out of the bond between parent and child," and are not motivated solely by financial concerns. In appointing the attorneys as conservators of the person and estate of Stuart F. Halpine, II, the Probate Court has impinged on the present, as opposed to a future or speculative, interest of the plaintiffs. As in Marchentine v. Brittany Farms Health Center, Inc., the plaintiffs have essentially lost the ability to continue their relationship with their father without being subject to the control of the nonfamily member conservators.
The court concludes, therefore, that the plaintiffs are aggrieved as they each have a legally protected present interest in the care of their father and that a possibility exists that this interest would be adversely affected by the appointment of conservators.
Procedural Issues
The present case raises procedural questions as to whether each of the six plaintiffs were: (1) required to file a motion to appeal from the decree of the probate court per § 45a-186(a) and obtain a decree from the probate court permitting an appeal within the time limit allowed by General Statutes § 45a-187; and (2) required to file a recognizance in the Probate Court as required by § 45a-186(a).
"The appeal exists only in favor of a party `aggrieved' in a matter not otherwise specially provided for by law; a bond with sufficient surety to prosecute the appeal to effect must be given; and the motion, application or request for the allowance of the appeal to the proper court, must be made to the probate court within the time limited by law for making the same. When all the conditions exist the right of appeal is complete, but certain requisites are necessary to its full and effective exercise. The appeal must be requested by the party entitled to it or by some one acting for him; it must be allowed by the probate court; the appeal papers must in some way show that the party is entitled to appeal as one `aggrieved'; a proper and sufficient bond with surety must be given; the appeal papers must be entered in the Superior Court at the proper time and term. When the right to appeal thus exists and the right has been duly exercised in the manner prescribed by law, the Superior Court has full jurisdiction over the subject-matter of the appeal . . . If the appellant is not a party aggrieved, or the cause is not, as to him, appealable, or the matter of the appeal is otherwise specially provided for by law, the appeal would be void. But the failure to give the bond, or to show upon the record that the appellant was aggrieved, or to give proper notice of the appeal, or to take it within the time for taking appeals, are irregularities which make the appeal voidable, not void, and are to be taken advantage of seasonably by a plea in abatement." (Citations omitted; internal quotation marks omitted.) Fuller v. Marvin, 107 Conn. 354, 356-57, 140 A. 731 (1928).
"Matters that render an appeal void go to the very capacity of a court to hear the type of claim made and where the irregularity voids the appeal the court has no subject matter jurisdiction. Failure to give bond or recognizance . . . does not go to the power of the court to hear the case before it. Language in the older cases suggesting the posting of bond is a necessary condition of a proper statutory appeal from probate only hold that such an appeal would have been subject to a plea in abatement or a present motion to dismiss but the defect is not such as to deprive the court of jurisdiction if the party who would be entitled to press such a pleading waives his or her right to do so . . . If the claimed defect . . . does not go to the power of the court to hear the matter but involves a statutory requirement for defendant's benefit, then a defendant can be held, in certain circumstances, to have waived the defect which he or she could have otherwise taken advantage of to have the action dismissed. This is a way the courts have avoided the harsh results that would flow from a too wooden application of rules that say since a statutory right not existing at common law is involved there must be strict compliance with statutory requirements. In any event the court will not dismiss the appeal based on the recognizance issue." (Emphasis in original.) Rindos v. Estate of Rindos, Superior Court, judicial district of Milford, Docket No. CV 96 0563285 (March 26, 1997, Corradino, J.) ( 19 Conn. L. Rptr. 309, 310).
In the present case pursuant to § 45a-186, Margarita Halpine moved for a decree allowing an appeal from probate and Patrick Halpine, Nusie Halpine, Thomas Halpine, Veronica Halpine and Mig Halpine joined in the motion. In other words, Margarita Halpine, a party entitled to appeal and arguably able to act on behalf of her siblings, requested the Probate Court's permission to appeal its decision to the Superior Court. See Fuller v. Marvin, supra, 107 Conn. 357. In addition, her five other siblings, also entitled to request an appeal, joined her in the motion. On November 1, 2005, the Probate Court, without raising the issue that the six plaintiffs filed the motion jointly, granted the plaintiffs' motion and allowed the appeal. The plaintiffs reasonably relied on the Probate Court's decision to grant the plaintiffs' motion and allow the appeal and appealed to the Superior Court. Therefore, the fact that each plaintiff individually did not file a motion to appeal from the decree of the Probate Court and obtain a decree from the Probate Court permitting an appeal will not deprive the court of jurisdiction over the plaintiffs' appeal.
Margarita Halpine properly filed a recognizance in the probate court as required by § 45a-186(a). Patrick Halpine, Nusie Halpine. Thomas Halpine, Veronica Halpine and Mig Halpine individually did not file a recognizance. Failure to file a recognizance is an irregularity which makes the appeal voidable, not void. See Fuller v. Marvin, supra, 107 Conn. 357. This claimed defect, however, does not go to the power of the court to hear the matter, but rather involves a statutory requirement for the defendant's benefit. In the present case, the issue is whether Margarita Halpine's filed recognizance was sufficient or if the remaining plaintiffs were also required to file a recognizance under § 45a-186(a). The court will not have to address this issue, however, since the defendants filed their motion to dismiss well over thirty days after they filed their appearances. Thus, by failing to file their motion to dismiss within the thirty-day time period they waived the alleged defect. See Rindos v. Estate of Rindos, supra, 19 Conn. L. Rptr. 309. As a result, the court will not dismiss their appeal based on the recognizance issue.
Defendant Susana Halpine filed her appearance on December 21, 2005 and defendant Sarah Halpine filed hers on December 22, 2005. The defendants, however, did not file their motion to dismiss until February 21, 2006.
V
For the foregoing reasons, the court denies the defendants' motion to dismiss.